Criminal Law, Prison and the Youth of a Nation

I remember applying for my first job. Wondering if the fast food restaurant was desperate enough to hire someone with no experience. As nightmarish as that experience was can you image the same experience today, in a recession. College graduates are working at Starbucks and McDonalds. It takes a lot of luck to get a job with no experience. Now lets make the same search damn near impossible. Lets add to the mix you have a felony conviction.

It is so cheap and easy with the internet to look up a potential employee's criminal background. The result is that we have created a huge class of Americans who are almost unemployable. I have received more calls seeking to expunge or seal criminal records in the last year than in my entire career. Most of the time those convictions are not eligible to be expunged or sealed (see 20 ILCS 2630/5.2).

Certainly this is a factor to be considered in pleading to anything. That being said there are cases where it makes sense to enter into a plea. This is particularly true given the risk of substantial prison terms. In addition many defendants are convicted at trial. Thus, this is not a problem that can't be resolved by an individual defendant. This is a problem that must be addressed as a nation.

The problem we have is that politicians don't get voted out of office for being perceived as tough on crime. What we fail to see as a nation is the big picture. The object is to keep criminals from impacting our families and friends. Thus, if a young man or woman in their teens or early twenties gets convicted of a crime they are unlikely to find a job throughout their lives. The result will be to do the one job they know best, even if that job is to engage in criminal behavior.

If they are not proficient at committing crimes we can send them to the best schools in the State of Illinois. The charm schools at Stateville, Dwight, Pontiac and Menard are far more successful at teaching criminal behavior than our high schools are at teaching lawful behavior. Maybe the reason is that we spend more money per student on our prisoners than on our students.

People who have drug convictions often have drug addictions. A drug addict who can't find a job is likely to get frustrated. The stress of their situation may result in the desire to take drugs. Since they have no job or money the best way to get money is to steal from you. If we limit welfare to people with criminal convictions than this process will speed up. To make matters worse politicians are reducing funding for drug treatment.

The cycle becomes worse when we destroy the lives of individuals with real potential. Young, first time offenders are often over charged resulting in felony records. In my county retail theft (a class A Misdemeanor) is often charged as a burglary (a class 2 Felony). The State's Attorney has a great deal of discretion as to how they charge an offense. It certainly can't hurt in an election to have a high felony conviction rate.

The police also have discretion as to whether a case should be charged. There are times when a stern warning or a few moments at the police station can provided the needed incentive to straighten up and fly right. Should this happen in every case? Of course not. That is why we need law enforcement that is not only concerned about putting bad people in jail but also concerned about doing the right thing.

It is also important to remember that times have changed. When I was in High School a fight would often be resolved by teachers forcing the students to shake hands. Today the same fight will often by resolved by the students being convicted of aggravated battery. There was a recent change in Illinois to allow 17 year old defendants to be charged with misdemeanors in the juvenile court but the statute does not stop 17 year old defendants from being charged with a felony. There is also at least some scientific studies supporting the idea that impulse control does not fully develop until a person is in their thirties.

The last three presidents of the United State's have all admitted to some form of drug use or alcohol abuse. If they were arrested at the time of their substance use or abuse it is likely they would never have run for office. The result would be an incredible waste of potential.

There is also a very practical side to this argument. As a nation we simply can't afford to imprison so much of our youth. I am not talking about the yearly costs of housing (which is well in excess of $30,000 per year). I am talking about the cost of the state raising children without fathers. I am talking about the costs of prisoners not paying into the system for taxes and social security. I am talking about the destruction of the American dream for a large portion of the youth of our nation.

Screaming at Oranges

There is an old saying that a man marries a woman thinking she will never change and a woman marries a man thinking she can change him. The high divorce rate suggests that the reasons people get married may not always be the right ones. People do change over time. Hopefully, people gain wisdom as time goes on. Yet these changes are not always for the betterment of the marriage. Also, sometimes one person within a couple changes while the other remains the same.

People generally do not change their essential nature. If people are unwilling or unable to change for the sake of a marriage they are almost never willing to change for the sake of a divorce. Thus, trying to change a person's essential nature may be a kin to pounding in a nail with your forehead.

I'm often confused that people are surprised and frustrated by their soon to be ex-spouse continuing to maintain the same annoying personality traits that played a part in their decision to divorce in the first place. It is a little like being mad at an orange for being juicy. Although, it is alright to encourage positive behaviors it is just frustrating to try and change someones essential nature when that is unlikely to ever occur.

Behavior can certainly be changed or modified by Court Order. People often are more willing to do what they should do when the alternative is being held in contempt of court. The possibility of time in jail is an excellent motivator. Thus, some negative behaviors can be modified. A person who is bad with money can be taught to pay child support on time. It is possible to get someone to visitation on time. Any behavior reduced to an order can be changed provided that negative reinforcement works on that indivisual.

Obviously any behaviors that involve violence, are illegal or are harmful to a child are not what I consider part of someones essential nature. Yet, these behaviors also may not be easily changed. The solution to dealing with these behaviors may be restricted visitation or limited contact.

It is best to reserve energy for fighting battles that can be won. Most of the time the frustration involved in changing a person's essential nature is not a battle worth fighting. There is value in peace of mind.

Green Lantern

Every summer I look forward to the summer movies. I was certainly looking forward to see the Green Lantern. I was disappointed. The movie was awful. The millions of dollars spent on special effects could not make up for a script that didn't even try.

I understand that Hal Jordan (a/k/a The Green Lantern) saw his father die. I understand he was a screw up who couldn't make a commitment. I understood his potential to be paralyzed by fear. None of these flaws made me care for him.

It is also true that good writing and acting can make a character more empathetic when that character is flawed. Certainly this technique worked for Batman and Iron Man. In Batman Begins Bruce Wayne (Christian Bale) must learn to tame his inner demons. He is filled with anger brought on by his parents death. His emotional pain made the viewer feel for the character. Bruce Wayne is not a poor little rich kid but a flawed hero. A large portion of the movie was dedicated to examining his Psyche. The same can be said for Iron Man. Tony Stark (Robert Downey Jr.) is struggling with his father's legacy and his own self indulgence. At the end of these movies it is as much about defeating the bad guys as coming to grips with the character's need for self actualization.

In the Green Lantern it is unclear what Hal Jordan has learned from his battles. I still wonder how wimpy the Green Lantern Corps must be in that despite their years of service they could not defeat a monster that Hal Jordan could defeat with ease. It is also unclear how Hal's battle with fear and evil caused him to grow as a person?

Form over substance will continue to be a problem in the movies as in life. Would this movie have been made based on the script alone without the promise of impressive Computer Generated Imagery? Since this is a legal blog I should note that sometimes this occurs in the courtroom as well. Lawyers sometimes believe that by force of will the judge or jury will side with them. Yet no matter how convincing an argument it must be based on a solid foundation of facts, evidence and the law.

I have not given up on the summer yet. I hope that the next movie related blog I write will be glowing praise.

Valentine's Day

It may seem odd that a family law attorney is writing about Valentine's Day. After all a divorce case has far more to do with dollars and cents than hearts and cupids. In part that is because courts are very good at dividing money and not so good at issues of the heart.

A divorce is stressful and can have a substantial and real emotional impact. What happens in the court is not going to resolve emotional issues. It is alright to seek counseling or speak with a Minister, Priest or Rabbi about healing the soul. Often people are surprised when the divorce is complete that they are still not done emotionally.

When children are involved some issues may not be resolved until the children are done with college. My father's old business partner use to say, "It's not over until the youngest grandchild has finished college.". That being said you can divorce your spouse but not your children. Children need to know that they are loved and secure. That both parents will always love them and care for them.

That being said I want to wish everyone a happy Valentine's Day. I hope everyone is loved. I hope everyone has someone to love.

Slavery - A Modern Day Problem

The reading of the United States Constitution by the newly elected members of the House of Representatives skipped the parts of the document that made reference to slavery. They did not want to remind the people that slaves were considered 3/5 of a person (United State's Constitution Article 1, Section 2). Slavery is a part of our history we can't hide from. Even the Bible makes uncomfortable references to slavery (Exodus 20:21, Ephesians 6:5). Is slavery just an embarrassing reminder of an uncivilized past isn't it?

A friend recently reminded my that the 13th Amendment does not end slavery. In part it reads: "Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction". (13th Amendment - United States Constitution). In other words prisoners can be treated as slaves. They also are being used as slave labor throughout the country every day. Why should this cause concern? After all they were convicted of a crime.

Illinois is broke. The recent tax increase attests to that. Housing prisoners costs a lot a money. More than $30,000 per year per person. At a sentencing hearing a judge is required to, "...consider the financial impact of incarceration based on the financial impact statement filed with the clerk of the court by the Department of Corrections;". (730 ILCS 5/5-4-1). Yet, sentencing gets more harsh each year. The tax increase wont solve the state's financial problems. People are looking for a way to decrease costs and increase revenue.

The sentences handed out for non-violent drug crimes in Illinois often exceed the sentences for murder. Federal sentences most of the time involve greater prison terms than state charges. Jails and prisons are full. The United States, by far, has more citizens in prison than any other nation. This includes China which has a population that is around four times that of the United States of America.

The problem of overcrowded prisons and not enough money to support them may lead to a disturbing solution. It could lead to a new slave nation. Private for profit prisons have a huge incentive to encourage harsher prison sentences. This is even more so if they can avail themselves of free slave labor. Illinois at this time does not have private for profit prisons. The Private Correctional Facility Moratorium Act, bars private prisons in Illinois. (730 ILCS 140/1-140/4). That being said according to Wikipedia as of the year 2000, there were 153 private correctional facilities with a capacity to hold 119,000 inmates in the United States (Wikipedia).

Even if a state does not rely on private facilities to house inmates they can still benefit. Illinois is not opposed to using prison labor. According to the Illinois Department of Correction's web site the use of prison labor is on the rise in the last two decades. Other states have also gotten in on the action. Including states that rent prisoners to big business at discount prices. Slavery may not violate the 13th Amendment but it may violate the 8th Amendment. The 8th Amendment states, "Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted.".

Is there a better win the war on drugs than putting non-violent offender is prison. Is there a point when slave labor in and of itself is considered, "cruel and unusual"? Should the over representation in prisons of African Americans, when compared to the general population, cause concerns when the issue of slavery is addressed? Perhaps, new blog topics for the future.

Divorce and the Holidays

Either you look back at the holidays with a sense of childhood wonder with dreams of sugar plums, or you look back at the holidays wishing you had a sense of childhood wonder with dreams of sugar plums. The best Christmas, Hanukkah, Kwanzaa and/or Eid al-Adha centers around children. That does not mean the best X-Box, Wii or Playstation. It means togetherness, love and family.

Thus, the process of divorce can certainly have a negative impact on the holidays. That is why if possible it helps to work together. Even at the cost of personal bad feelings. It will not be lost on the children that their parents were able to put bad feelings aside for the holidays.

There are areas of compromise. Some families celebrate Christmas on Christmas Eve and others on Christmas. Thus, that can be a good dividing point for visitation. Also, the Christmas break is usually at least two weeks and covers four special days: Christmas, Christmas Eve, New Year's Day, and New Year's Eve. Hanukkah varies year to year based on the Jewish Calendar. That being said, you can determine when Hanukkah will be each year. Muslim holidays also use a lunar calendar and vary year to year. Also, over eight days under most visitation schedules the children will have at least a few days with each parent.

Last minute fights over holiday visitation do occur. Thus, most of the time a compromise can be reached. It is important not to let bad feelings associated with the divorce interfere with the children's holiday experience.

Love one another and have a great holiday from the Law Office of Scott Lerner.

Top Scary Movies for Halloween

It is the time of year to talk about Halloween and scary movies. This blog entry does not have much to do with the law. Although, I encourage you to contact the Law Office of Scott Lerner if you go on a killing spree and need representation. I do frown on such behavior and encourage peaceful ways of resolving your differences.

I'm making a list of my top 10 favorite Horror Movies. It is not in order. If you make the list you are already a winner.

The Shining - (the original) - The Stephen King story is great but the direction of Stanley Kubrick makes it a classic. Also, the acting is fantastic. I still get a chill when the twins say, "Come play with us, Danny. Forever and ever and ever."

The Omen (The original from 1976) - The juxtaposition of timeless evil in a little boy just gives me a chill. This movie takes such an unbelievable premise and makes it real. Who needs modern Hollywood special effects?

The Thing - To me this is John Carpenter's masterpiece. Halloween never scared me very much. The Thing plays on your sense of isolation and claustrophobia.

The Sixth Sense - How can M. Night Shyamalan make such a great movie and such bad movies afterwards? Given its PG-13 rating it goes to show that gore, sex and bad language are not necessary for fright. When the father is watching the video-tape the look on his face expresses far more horror then any special effect can.

The Ring - Is there a pattern or two on the list? So far the movies all concern a child. Also they all start with the word "the." Based on the Japanese movie "Ringu" this adaptation is nightmarish. The premise seems silly but it works. The scariest thing to come from Japan since "uni."

Pet Semetery - Little kids coming back from the dead just scare me. Fred Gwynne should have received an Oscar. Most Stephen King books don't make great movies. "Pet Semetery" and "The Shining" are the exceptions. Both also involve Native American burial grounds.

The Orphanage - I'm not a big fan of subtitles but this film is well worth the effort. The atmosphere of dread. The dead children. This movie is just spooky. Another movie that does not need a lot of special effects to be effective.

Hellraiser - This film is original and scary. It paints a new picture of hell on earth. The only Clive Barker movie on the list but "Candyman" is listed as an honorable mention.

Rosemary's Baby - I purposely did not include older movies (this might explain the absence of "Psycho" from my list). This movie I made an exception for. Roman Polanski may be a good topic for my law related topics but this movie speaks for itself. It shows even an infant can be scary.

A Nightmare on Elm Street (the original) - Wes Craven made some scary movies. "Scream" and "The Serpent and the Rainbow" both deserve honorable mention. Yet, a monster that can enter your dreams is a monster well worth being afraid of. The bastard child of a hundred maniacs is one evil dude.

Top ten lists always provide room for argument. What scares me might not scare you. My life experience impacts my list. I am not a fan of your basic slasher film. I prefer a supernatural element to my movies. I could have easily made this a top twenty list and included all of those movies receiving honorable mention and listed below.

Honorable Mention: The Exorcist, Candyman, Alien, Friday the 13th, The 9th Gate, The Fog, Night of the Living Dead, Saw, Evil Dead, An American Werewolf in London.