« Spotlighting how local district attorney elections have become focal point for criminal justice reform advocates | Main | Notable White House personnel development that should help the cause of criminal justice reform »

February 17, 2018

Should jail inmates face tougher sentencing for applauding charged cop killer as he was brought into jail?

A helpful reader alerted me to this interesting AP story, headlined "Jail inmates applaud career criminal accused of killing Chicago police commander, may face reprisals," that provides the basis for the question that is the title of this post.  Here are the particulars:

Five Cook County Jail inmates who applauded as the man charged with the fatal shooting of a Chicago police commander was led by their cell could face reprisals for their actions, a jail official said Friday.

Cara Smith, the chief policy officer for Sheriff Tom Dart, said a security video shows them clapping as suspect Shomari Legghette was being led past a crowded holding cell on Thursday after his first court appearance.  The inmates were in the holding cell awaiting action on their cases.  Legghette is charged with first-degree murder in Tuesday's shooting death of Commander Paul Bauer.

She said the five inmates were transferred overnight from Chicago to a jail in southern Illinois, where it will be more difficult for family and friends to visit them while they are in custody.

The jail also is forwarding to prosecutors the video and reports of the incident Thursday afternoon so they can use the information if the inmates are convicted, she said. "The conduct that those detainees engaged in was disgraceful... and speaks to their character," Smith said.  "We feel it should be considered by prosecutors in connection with their sentencing."  The video could be a "factor of aggravation" considered by a judge in sentencing.

But Steve Greenberg, a prominent Chicago defense attorney, said there is no way the inmates should be penalized for what he said is a clear exercise of their right to free speech.  "These inmates ... no matter how vile or disgusting you may think their expression is, they have an absolute right under the First Amendment to express those feelings and it is a violation of their rights as citizens to penalize them or consider that as aggravation," said Greenberg, who is not representing any of the men.

The video was taken moments after the 44-year-old Legghette appeared in court on charges of first-degree murder of a peace officer, armed violence, unlawful use of a weapon by a felon and possession of a controlled substance.

Police say they wanted to question Legghette Tuesday when he took off running and Bauer pursued him on foot. He caught Legghette near the James R. Thompson Center, a government building, where the two struggled and Legghette fell down the stairs.  Bauer either fell or ran after him to a landing where, Legghette, wearing a bullet proof vest and armed with a semi-automatic handgun, allegedly shot the 53-year-old Bauer six times.

February 17, 2018 at 01:28 PM | Permalink


The First Amendment argument seems, um, specious. It bears on character, and character is in the mix when it comes to sentencing. The more interesting issue---is the transfer to a Southern Illinois jail ok? Probably not.

The bigger question, it seems to me, is the propriety of this. At the end of the day, it seems to me that this looks super vindictive, and it reflects poorly on the criminal justice system. The best response, it seems to me, would be to harshly criticize the reaction and point out to the public that we are dealing with some seriously depraved individuals.

Doug? I am interested in your take.

Posted by: federalist | Feb 17, 2018 1:57:32 PM

Criminals being supportive of someone who allegedly killed a police officer isn't exactly surprising especially if they had some negative experience with him or some other officer though it obviously is distasteful. Crowded holding cells result in a lot of disgraceful speech though, including when people pass by. Trying to silence this sort of thing is unlike to be practicable & in the long run counterproductive.

Putting aside some 1A argument, what exactly does it add to sentencing of these defendants? How much more punishment do they want to give for this one act? What if they "only" cheered at the mess hall or something? Or, treated him as a hero in the cell block? Is this one demonstration that notable? The emotional reaction for a slain police officer's killer being supported is quite understandable. But, the rest holds.

Posted by: Joe | Feb 17, 2018 2:47:18 PM

Applause of a cop killer is protected political speech. The provision of punishment food, and the shutting of visitation is a proper security measure, for the governmental purpose of enhancing inmate safety. One purpose of rehabilitation and of re-entry is to change the thinking of inmates, to get them to fit in better. Teaching them ways of thinking are right or wrong is good rehabilitation practice.

The lawyer will punish prison officials who verbally criticize the prisoners, for example, by saying, "That is not a nice thing to do, applaud a cop killer." Fired for harassment.

What Doug nor even Fed will never say, and which is of much greater importance than this minor irritation. The murder of the police officer is 100% the fault of the lawyer profession. Instead of killing the career criminal at 14, they protected, privileged, and empowered him. Does any one think he has just one murder victim?

Posted by: David Behar | Feb 17, 2018 2:48:52 PM

The idea that cheering the man who murdered a police officer, or anyone for that matter, does not relate directly to that offender’s readiness and ability to be reintegrated into society is absurd. It may be their first amendment right to say it, but so is a confession to their crime. Both can and should be used in the conviction and sentencing process.

I recall looking into this area in a gang case I handled where the defense used the first amendment argument to try to prevent me using some gang rap songs. The US Supreme has not applied the first amendment to prevent this sort of thing and I don’t think they will. Indeed what someone is thinking when they act can be the difference between lawful and unlawful acts (think homicide, murder v. self-defense).

Posted by: David | Feb 17, 2018 3:16:32 PM

Look at Joe the apologist--nice.

Posted by: federalist | Feb 17, 2018 5:35:42 PM

Absolutely not. The inmates were not in a position of power or creating a riot etc.

Tell me that cops dont talk trash when they make arrests, right. So should these guys get a reduced sentence because cops talked trash ir hit their heads on car roof when they jammed them in the squad car. How about when they toss the slop food to them.

I have no clue what jail is like, but I know people when they are in control and arentnot held accountable.

Look at our wonderful FBI crew who sat on their thumbs and 17 school kids got shot.
Now the FBI needs to be charged and hiorse whipped, them tied out in the sun with honey on them. let the ants and bugs bite at them for 2 weeks.

Posted by: MidWestGuy | Feb 17, 2018 6:32:02 PM

"Look at Joe the apologist--nice."

Is this supportive after the first comment that speaks of how the system looks "super vindictive" by doing this?

Posted by: Joe | Feb 17, 2018 7:44:06 PM

The underlying issue here is the determinate nature of our sentencing system. Necessary, perhaps, because Government has not been able to figure out a way to determine who is ready to reintegrate and who is not.

My suspicion is that brain science has advanced far enough that, if we forget about legal restrictions for the moment, private industry could figure out a way to tell. Possibly something related to those science experiments where they show a person words or images and measure the brain's reaction.

So you give tell the business you need to release x% of thus-and-such a pool of people, give them a recidivism-related incentive (the less, the better for them), and you let them do their thing.

If it works, which I suspect it would, everyone is better off. Prisoners have an incentive to better themselves in order to become release-eligible. Society has less recidivism to deal with.

From a legal point of view, I don't know if it could be made to work without a Constitutional amendment. An interesting question for Doug to chew on.

Posted by: William Jockusch | Feb 17, 2018 8:53:28 PM

federalist: I think you and David are right on the law, as defendants can and regularly do get sentences enhanced all the time for "protected speech" under a variety of punishment theories. In Marvin Frankel's classic book that inspired modern sentencing reforms, he recounted an incident in which a judge bragged about giving a defendant an extra year of prison for complaining he had been convicted in a kangaroo court.

That said, the context for this speech would incline me to urge prison officials, prosecutors and judges to not seek to bring the hammer down for this behavior alone. Peer pressure is a real force in all sorts of settings, and surely even more so in a holding cell. That does not excuse poor behavior, but I certainly would be disinclined to make a profound conclusion about a defendant's character based on this ugly incident alone.

Posted by: Doug B. | Feb 17, 2018 9:29:52 PM

Doug: In Elonis, the husband said, there was a 1000 ways to kill his wife, on Facebook. The Supreme Court ruled that speech and not conduct, voided his conviction and prison sentence.

Nevertheless, is ordinary prison discipline appropriate? That is not a sentencing change. It is appropriate to teach correct thinking, if anyone believes in rehabilitation at all. (I do not.)

I know someone has been to prison immediately, when they repeatedly "Sir" me. Military veterans do not do that. As you would teach a prisoner to be respectful by calling everyone, Sir, it is appropriate to teach, being glad of any murder is wrong.

Posted by: David Behar | Feb 17, 2018 10:27:50 PM

David, Elonis turned on an interpretation of mens rea under the applicable federal statute. You do not believe in mens rea, so perhaps why you misunderstand the case.

Posted by: Doug B | Feb 18, 2018 12:01:21 AM

The mens rea and foreseeability of harm by a reasonable person in Elonis were bad. Mind reading. Future forecasting. A fictitious person who is really Jesus the Christ, in violation of the Establishment Clause. The verdict required a trifecta of lawyer fictitious doctrines. Any lawyer calling me insane has to address these beliefs first.

In a rare instance of good reality testing, the Supreme Court rejected the scienter requirement.

There was no actus reus. I believe in actus reus.

Posted by: David Behar | Feb 18, 2018 12:43:44 AM

Recall the line in Johnny Cash's great song, Folsom Prison Blues: "I shot a man in Reno/Just to see him die."

When he sang that song at a concert in Folsom Prison, the inmates cheered wildly at that line...

Just sharing...

Posted by: Michael Perlin | Feb 18, 2018 8:19:58 AM

That is a nice reference Michael Perlin though don't recall the "man" being a police officer killed in the course of duty. That provides a lot of the heat here.

Posted by: Joe | Feb 18, 2018 10:03:59 AM

No Joe.

Your réponse is off-putting.

Posted by: federalist | Feb 18, 2018 10:37:48 AM

It seems to me that everyone is assuming that "clapping" signifies approval. I'd like to see the video because "clapping" can refer to lots of different things. Does clapping signify approval at an opera or theater? Yes. In prison the import of "clapping" seems less than obvious to me.

Posted by: Selfie Man | Feb 18, 2018 10:38:33 AM

The lash should return to prison by legislation. All those applauding should get 10 of them.

Posted by: David Behar | Feb 18, 2018 12:32:45 PM

Michael Perlin,

According to https://en.wikipedia.org/wiki/Folsom_Prison_Blues that is not accurate, the released live recording certainly has the wild cheering you describe but according to Wikipedia it was added in post-production, that the actual prisoners were quiet in order to not draw attention from the guards.

Posted by: Soronel Haetir | Feb 18, 2018 1:25:58 PM

federalist responds to a somewhat rhetorical question.

Anyway, again, note we got to the same basic result. I realize my pragmatic balancing of both sides in this context might be deemed "off-putting," especially since I'm generally at best that to federalist on a regular basis.

An "apology" in this context is a defense of one side. I did not defend the actions of the prisoners. I found them, as I found the reaction to the public policy officer here and prison, understandable.

I didn't find the latter particularly "super-vindictive," if misguided and if carried out by the prosecutors bad policy. On the level of potential bad actions by a prison, doing what to me is almost a form of venting when reacting to cheering an alleged cop-killer seems a venial sin at best.

Posted by: Joe | Feb 18, 2018 2:18:27 PM

(If the prosecution actually added a year or whatever for simply cheering, it would be bad, but again, don't really think it will come to that. As I asked upfront, wonder if the policy officer seriously has some number that is deemed a legitimate enhancer for the act of cheering. Don't think it was a carefully thought out comment though, like many made in such cases by all sides. At this early point, we are a long distance from that. We have what amounts to venting.)

Posted by: Joe | Feb 18, 2018 2:39:17 PM

I found the reaction of the prison understandable.

Cheering, a venial sin at best (meaning, at worst).

I can't take it anymore. The weasel is eating my brain.

Posted by: David Behar | Feb 18, 2018 4:24:11 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB