BILL WOULD GIVE NEIGHBORS VOICE IN DRUG CASES

SPRINGFIELD -- There's one thing missing from sentencing hearings for drug
dealers, Cook County prosecutors say: testimony from people victimized by
drug crimes in their communities.

"Pastors are willing to stand up and say, `This is how it's affected my
congregation. This is how it's affected people coming to my church,' " said
William T. O'Brien, chief of the Narcotics Division in the Cook County
state's attorney's office. "Principals are willing to stand up and say,
`This is what my kids have to face every day."'

Pastors, principals and virtually any community member could do just that if
Gov. George H. Ryan approves legislation he's now considering. So long as a
person lives or works in a community and is familiar with it, Senate Bill
1332 would let each make a victim impact statement at a drug dealer's
sentencing hearing.

Ryan spokesman Dennis P. Culloton said on Tuesday that the governor hasn't
taken a position on the bill. But given Ryan's willingness to work with law
enforcement agencies on their local initiatives, Culloton said, "the initial
reaction to this bill is it's laudable."

SB 1332, drafted by the Cook County state's attorney's office, passed with
little notice or debate in the General Assembly. O'Brien said the measure is
designed to help Cook County prosecutors and the Chicago police department
in their fight against organized drug crimes. "This is another prong of the
attack ... to get the community involved," O'Brien said.

But a few lawmakers and the Illinois State Bar Association complained that
allowing the victim impact statements from community members would overrun
sentencing hearings.

"Sentencings have traditionally been solemn occasions," said Sen. Ed Petka,
R-Plainfield, a former prosecutor. "And from my vantage point, opening up
the sentencing to individuals who ... are not directly related, are not a
party or not a true victim ... may make a sentencing hearing to be somewhat
of a circus atmosphere."

More to the point, ISBA lobbyist James R. Covington III said, the bill was
nothing more than an attempt to intimidate judges into imposing longer
sentences.

"The judges don't live and do not adjudicate on another planet," he said.
"They're aware of what crimes do to a community and the fabric of a
community. This is simply an effort to bully them."

The bill has two components. The first would amend the Unified Code of
Corrections, 730 ILCS 5/5-4-1, to allow for a victim impact statement by a
"qualified individual" who was affected by a violation of certain sections
of the Illinois Controlled Substances Act. Those sections are section 405,
calculated criminal drug conspiracy; section 405.1, criminal drug
conspiracy; section 405.2, street gang criminal drug conspiracy; and 407,
enhanced penalties for drug crimes within or near certain areas, like
schools and churches.

Under current law, victim impact statements can be given only by victims of
violent crime, as defined under the Rights of Crime Victims and Witnesses
Act in the Code of Criminal Procedure, or a violation of section 11-501 of
the Illinois Vehicle Code, which deals with driving under the influence of
alcohol or drugs.

O'Brien stopped short of saying that allowing testimony from community
members would pressure judges into imposing longer sentences, but admitted
the bill could lead to that.

The second component would add a new section in the Code of Criminal
Procedure -- 725 ILCS 5/115-10.5 -- to create a hearsay exception for
"safe-zone" testimony. The provision would apply to section 407 of the
Illinois Controlled Substances Act and section 5-130 of the Juvenile Court
Act, which deal with transferring juveniles to adult court for various
crimes.

O'Brien said this provision was necessary because occasionally, during the
course of trial, a school official is required to testify that a school is
in fact a school or a park official must testify that a park is in fact a
park. With that testimony, a defendant is subjected to enhanced sentencing
for a drug crime committed on or near those premises.

Under SB 1332, any "qualified individual" -- a person who lives or works and
is familiar with the area -- could testify as to the status of a property.
O'Brien said the bill would keep school and park officials and the like from
having to make special trips to court for this testimony.

During a Senate Executive Committee hearing on April 11, Petka asked O'Brien
whether some judges in Cook County would, in an effort to avoid implementing
the legislature's public policy statement, find that since the state
couldn't prove a transaction took place on school grounds, for example,
defendants in those cases weren't subject to enhanced sentencing.

"They may philosophically disagree with what the legislature is trying to
do, and as a result, they go to what I consider to be extremes to try and
avoid implementing public policy," Petka said. "Is that a fair statement?"

O'Brien replied: "How they characterize it, senator, is they see this crush
of narcotics cases ... and they feel, `Boy, if we incarcerate all these poor
people, the jails will be overcrowded, it will raise taxes,' and all of
that.

"My pitch to them is, `Your decision is whether or not someone is guilty or
not guilty and to sentence those people appropriately under the state laws.'
Whether or not we have to build more jails, that's not a judicial question
as much as it is a legislative question. And unfortunately they are sitting
as legislators, some of them feel they need to do this. I ask them, `Well,
why don't you have the courage to run for the seat then?' "

Asked on Tuesday about his comment to Petka, O'Brien said he didn't "have
any independent recollection" of it. However, he stressed the comment
"wasn't germane to what the object of this legislation was."

Cook County Circuit Judge Thomas R. Fitzgerald, who presides over the
Criminal Division, declined comment on O'Brien's remarks. But Judge Patrick
E. McGann, president of the Illinois Judges Association, said he didn't
"know that judge-bashing has any role in stating what the policy of the
government should be."

While he said he could not take a position on the merits of SB 1332, McGann
questioned whether it was the function of community groups to take part in
sentencing hearings. "I'm very much concerned where judges, through the
guise of good citizenship, are intimidated into making decisions, or under
the threat of intimidation -- there's going to be some impact on you at the
ballot box if we don't do what we demand you to do," he said.

SB 1332, sponsored by Sen. James A. DeLeo, D-Chicago, is online at
www.legis.state.il.us.