Proposed two level decrease in guidelines for certain drug crimes

On January 9th, 2014 the United States Guideline Commission proposed a two level decrease for drug trafficking crimes that has the intent of bringing the guideline range in line with certain mandatory minimums. It is expected that this two level decrees will take approximately 11 months off of the sentence for many drug offenders.

It would appear that cost reduction is one of the primary motivating factors as the Commission commented, “[t]he Commission’s proposal reflects its priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety.” The Commission noted that a similar two level reduction occurred in 2007 when the Crack guidelines were amended. The crack amendments have not resulted in any increased recidivism or other increased rates of crime.

This proposed amendment is open to public comment until March and then a public hearing is set for March 13, 2014. The full body of the press release can be found at

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2014 Illinois Right of First Refusal law

For some reason, the media seems to be reporting that a new Illinois law requires a parent, who needs child care, to give the other parent the chance to spend time with the child before hiring a babysitter.  The implication is that there is little, if any, choice in the matter by the custodial parent.  Here are the facts:

The law were are talking about is P.A. 98-462 and is codified at 750 ILCS 5/602.3.    First, this law does not apply to any judgment or order currently in effect.  Second, this law only applies in joint custody cases (not sole custody).  Third, IF there is a trial the court MAY decide it is in the best interest of the minor for this right of first refusal to be incorporated into the order.  Fourth, there is NO requirement for the court to allow this right of first refusal and there are several factors for the court to consider.  Finally, this law changes little, if anything, as to the practical application of how child custody works.  Many parents already make arrangements to work parenting time around their schedules and the court already had wide latitude to order this type of arrangement in the first place. This law will probably have very, very little impact on the administration future custody agreements.

The law can be found here:

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Prison is no big deal…

Not a week goes by that I don’t hear someone around me comment thathigh profile recently convicted person here> is going to prison and it will be like a “country club”.  These types of comments grate on me every time I hear them.  To be sure, some prisons are worse than others but all prisons are unpleasant.  I think the majority of these comments stem from a fundamental misunderstanding of what “prison” is and how it works.  Here is a tiny window into what most inmates face.

Many if not most inmates are initially taken into custody and processed at the county jail.  From there most are shipped to a reception center such as Statesville here in Illinois.  Upon arrival, inmates are strip searched, issued institutional clothing, photographed, and fingerprinted.  Inmates are given a brief orientation and provided an intake and orientation handbook.  Thereafter, most are released into general population until transferred to their more permanent prison assignment.

Illinois has High, Medium, and Minimum security prisons.  Inmates sentenced to 20 years or more are designated to a High security prison.  Those sentenced to 8-19 years are designated to a medium security prison and those sentenced to 7 years or less are designated to a minimum security prison.  In addition to High, Medium, and Minimum, the Federal Bureau of Prisons have administrative facilities and work camps that prisoners can be designated.  The BOP has a significantly more complicated method of inmate designation including factors of past violence, gang affiliation, age, educational accomplishments, etc.

Inmates may or may not be eligible to have family visits, telephone calls, or even the right to use commissary for such things as soap or shampoo depending upon disciplinary record.  Most institutions offer some sort of treatment, education or vocational training, however, inmates may or may not have the opportunity to take advantage of those services.  Opportunity to participate in these services depend on vacancies in the programs, length of time left on sentence, security risks, etc.

In his article, “America’s 10 Cushiest Prisons”, Hawkins mentions factors such as access to Rabbi.  These types of statements are misleading in that all prisons and jails I am aware of have some access to spiritual guidance whether it be Christian, Muslim, Jewish, or something else.  It is worth discussion whether a “cushy” prison still accomplishes the goals of incarceration, whether “cushy” prisons are more or less effective than high security prisons and whether “cushy” prisons are more or less expensive than other standard prisons.  In this age of budget crisis after budget crisis, our society spends an unsustainable amount of resources on incarceration.  Illinois alone budgets $1.163 billion for 2012.


Additional information on all these topics can be found on the Illinois Department of Corrections website: , Bureau of Justice Statistics, and the Bureau of Prisons at  Also “The Federal Prison Guidebook” by Alan Ellis & J. Michael Henderson is a wonderful resource.

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Continuing developments in the Fair Sentencing Act

Earlier today the United States Sentencing Commission issued a press release stating that it unanimously voted to make the amendments to the Fair Sentencing Act of 2010 retroactive within the sentencing guidelines.  Unless Congress acts to block the Commission’s vote, the Fair Sentencing Act can retroactively be applied as of November 1, 2011 to many defendants convicted of crack based offenses.

This action on the part of the Commission is important for any number of reasons, but two in particular.  First, it appeared as though the appellate courts were going to attribute little, if any, retroactivity to the Act.  Cases like Bell and Fisher showed that the courts were ruling based upon the strict letter of the Act and not considering either its spirit or intent.  Evidentially the courts request for additional guidance in the Dorsey case has now been granted.  By intervening, the Commission has given direction to the court and further clarified the guidelines.

Second, the federal bureau of prisons estimates that approximately 12,000 prisoners will be able to petition for a reduction in sentence, leading to an estimated average reduction of 3 years per sentence.

More information can be found at and the Commission’s press release can be found at

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The silent defense

            During the course of representation, sometimes I have clients who demand that I file a motion such as a motion to dismiss, a motion to suppress, a motion for discovery, etc. and they are extremely upset with me when I refuse to do so.  A “motion” can take almost any form and, at its core is a court document asking the court to do something.  A motion might ask the court to order the prosecution to do something (like turn over discovery) or refrain from doing something (like presenting certain evidence at trial).  A motion might also ask for additional resources (like the appointment of an expert witness) or the early termination of the proceedings (like a motion to suppress).  Looking at things from a client’s point of view, I can understand why they want to see their attorney advocating for them.  A major source of frustration is that the defense is silent in many cases until trial.  Clients want to be heard, they want to see something happen, they want a defense.  What clients don’t understand is that filing motions is inappropriate some times and counterproductive in other times.

            The first thing to realize is that sometimes there is no legal basis to file a particular motion.  Attorneys can’t file a motion just because they want to file, there has to be a legal basis.  Each type of motion has specific requirements and attorneys can be sanctioned for filing frivolous pleadings.  The second thing to remember is that there are times when the defense can file a motion but there is a strategic advantage to not file.  By way of example, I have chosen not to file motions in the past because I did not want to educate the prosecution of a weak point in their case or a strong point in mine.  I learned this lesson painfully well in a trial a few years ago.  In that situation I successfully persuaded the court to preclude the Government from introducing certain evidence against my client.  However, because of the advance notice of the problem, the Government was able to collect evidence and witnesses to overcome the court’s preliminary ruling.  A third reason to not file motions is that it is sometimes counter-productive.  If a client intends to plead guilty, it is generally wise to avoid making work for the prosecution.  Whether right or wrong, prosecutors are unlikely to cut a break to a defendant who denies guilt and litigates the matter fully.  More importantly, a judge may also refuse to cut a break to a defendant who has denied guilt and litigated the charges fully, only to plead guilty later.

As a litigator, I have often agonized over the risk/reward of filing a particular motion in a given case.  The ultimate goal is to win at trial, not a pretrial hearing.  Clients feel that the best defense is a good offense but often a quiet defense affords the best chance of winning.

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What is the difference between public defenders and private attorneys?

     I’ve been asked dozens of times “what’s the real difference between a public defender and a private defense attorney” as if I were part of a secret club.  The answer is:  depends on the individual attorney.  There are generally more differences between individual attorneys than the between public defenders as a whole and private attorneys as a whole.  The simple fact of the matter is that each case is different, each attorney is different, and in one situation a public defender may be able to obtain a good result whereas a private attorney may be able to obtain a better result in the next situation.  In an effort to provide some clarity, here are some of the general differences between public defenders and private counsel.

     The most obvious difference is that public defenders are public servants, hired by the county or state whereas private attorneys are hired by individual defendants.  Public defenders are essentially specialists in the field of criminal law.  Most public defenders practice only criminal law and some of the larger offices allow defenders to specialize in certain offenses such as drugs, sex crimes, or murder.  Public defenders tend to have extremely large caseloads which mean they typically have very little time for each case.

     Private attorneys, on the other hand, rarely have the luxury to practice only criminal law.  Private attorneys, while also busy, tend to have much more time to spend on each client and on each case.  Likewise, private attorneys tend to have much more time to research legal nuances, speak to witnesses, and investigate the case.  Additionally, private attorneys, on the whole, tend to be older and more experienced than most public defenders.

     A survey published in April suggests that private counsel tend to be more effective in handling major cases than public defenders.  Even assuming the results of the survey are true, it is important to realize that there are outstanding public defenders and there are bad defenders just like there are outstanding private attorneys and bad private attorneys.  With all these things said, I tell potential clients that it is important to have a good fit with your attorney.  The criminal process is stressful without butting heads with your attorney.  Be an informed consumer, investigate your attorney before you hire him or her, and be an active participant in your case.  Clients usually get a feel for whether they have a good attorney or not.

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Reasons Small Businesses Fail Part 2

In my last entry I discussed three of the most common pitfalls as to how and why small businesses fail. Technical ability, knowledge of how business works, and a support system are important aspects of a successful business but are not the only aspects. When discussing the operation of a business, other aspects such as ethics, professional associations, and limits are also important.

Understanding ethics in the field. Often times ethics seem self-evident but many well-intentioned businessmen have gotten into trouble by accident. Trouble arises when owners don’t have a clear understanding of what is legal and what is illegal and what issues are in the gray area in between. Again, this seems self-evident but it is surprising how often a client confesses that they didn’t know they were breaking the law. The easiest way to avoid problems are to understand common pitfalls in the field through frequent communications with the governing body.

Maintain professional associations. It is important to become a member of local and regional associations. Membership in these organizations assist with staying up to date with technology and changing rules in field. Aside from membership in associations, it is helpful to have relationships with others in your field to discuss trends and developments. Friendly discussions and war stories are opportunities to problem solve and learn from the mistakes of others.

Request outside input.  Finally, outside input gives perspective to the health of a business. Consultants, lending institutions, attorneys, and others are wonderful sources of input. Don’t try to do everything. The need for revenue is a constant specter for most businesses. When a customer shows up with money, it is often difficult to turn that money away. I know first-hand the temptation to say, I can do that or I can learn how to do that. Although counter-intuitive, specializing in one area tends to increase revenue over the long-term as opposed to trying to be a jack of all trades. More choices mean more costs. Likewise, simplifying a business allows you to focus more energy into an area. I also tell my clients that they can’t be everything to everyone. If they try, they will fail and usually have upset customers in the process.

Running a business is wonderful and exciting and challenging and stressful, all in one. Additional resources can be found at:,; and

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