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October 7, 2018

You be the Illinois judge: what sentence for Jason Van Dyke after second-degree murder conviction in slaying of Laquan McDonald?

Though somewhat eclipsed by Supreme Court confirmation controversies, a high-profile criminal case culminated with a murder conviction on Friday when a jury found Chicago police Officer Jason Van Dyke guilty Friday of second-degree murder in the 2014 shooting of 17-year-old Laquan McDonald.  This CNN article about the verdict details that Van Dyke was also "found guilty of 16 counts of aggravated battery with a firearm [but] found not guilty of official misconduct."  And this AP piece, headlined "With conviction, Van Dyke likely avoided decades behind bars," highlights some of the sentencing realities that attend this verdict:

Jurors convicted Chicago police Officer Jason Van Dyke for murder and aggravated battery in the slaying Laquan McDonald, the black teenager who was shot 16 times as he walked away carrying a knife on Oct. 20, 2014.  But a legal expert explained that the 40-year-old Van Dyke is likely looking at less than 10 years in prison for killing the teen rather than many decades because jurors opted to convict him of second- and not first-degree murder.

After less than two full days deliberating on three weeks of testimony, jurors returned Friday with 17 guilty verdicts and one acquittal. By far the most serious charge Van Dyke faced originally was first-degree murder.  But Judge Vincent Gaughan told jurors before they started deliberations that they had the option of replacing first-degree murder with second-degree murder.

First-degree required a finding that Van Dyke's use of deadly force wasn't justified — that it was both unnecessary and unreasonable.  But Gaughan said jurors could find that Van Dyke truly believed his life was in jeopardy but that that belief wasn't reasonable.  That's the criteria for second-degree murder.

The jury also found Van Dyke guilty of all 16 counts of aggravated battery with a firearm. Each count corresponded to every bullet Van Dyke shot into McDonald. They acquitted him on the least serious charge, official misconduct....

First-degree murder carries a maximum sentence of life imprisonment. And with enhancements for having used a gun, Van Dyke would have faced a mandatory minimum of 45 years, according to Chicago defense attorney Steve Greenberg, who has defended clients at more than 100 murder trials.  Such a sentence, at Van Dyke's age, could have amounted to life.  The punishment for second-degree murder is no less than four years but no more than 20 years behind bars.

Jurors weren't told anything about the range of punishments for each charge. The judge did tell them that whether one charge might carry a greater or lesser sentence shouldn't factor at all into their decisions.

Each count of aggravated battery carries a mandatory minimum six years and a maximum of 30 years in prison. If Van Dyke had to serve six for each of the 16 counts — and do so one sentence after another - that would add up to 96 years. But Greenberg said judges almost always order defendants to serve such sentences simultaneously.  So, if Van Dyke gets the minimum for each count, he'd serve six years for all the battery convictions.

Another possibility is that the defense will ask, under complicated legal rules, for the judge to merge the crimes for which Van Dyke is convicted for sentencing purposes since they were all tied to a single event, Greenberg said.  That could mean Van Dyke is effectively sentenced only for second-degree murder, with its lower four-year mandatory minimum.

For a man convicted with no previous criminal record, Greenberg said the mandatory minimum is his best guess for a sentence handed down on Van Dyke.  "I would be shocked if he got a day over the four or six years," Greenberg said.

Greenberg said prison conditions for an officer, like Van Dyke, could be rougher than for average convicts. As a white officer convicted of killing a young African-American, prison authorities are likely to conclude he has to be kept away from other prisoners for his own safety. "He will probably be in a cell by himself," Greenberg said.  "It will be very hard time." That may have already started.  At prosecutors' request, Van Dyke's bond was revoked minutes after the verdicts were announced and Judge Gaughan ordered he be held in jail pending sentencing. He stood up from the defense table, then put his arms behind his back as two deputies led him away.

I am not an expert on Illinois sentencing law, but presuming this article has the law corrected, I am struck that the mandatory minimum prison term for second-degree murder in the state is 50% less than mandatory minimum for aggravated battery with a firearm. It is also notable and telling that if the sentencing judge here were permitted and inclined to run the various sentences consecutively rather than concurrently, the defendant here would be facing 100 years in prison as the applicable mandatory minimum.  But if the crimes are found to be "merged" under Illinois law, four years could become the minimum and 20 years the max.

October 7, 2018 at 12:55 PM | Permalink


Whether Officer Van Dyke's sentence is 4, 6, or 20 years, his life will never be the same. He will emerge from prison a far different man than he is now, and will face a lifetime of limited employment and other opportunities as a felon. If he is married now, there is an 85% chance that his wife will divorce him. Even if his marriage survives his prison sentence, there is a 7.5% chance that it will end in divorce within a year of his release from prison. His parents may die while he is serving his sentence, but he probably would not be granted a furlough pass to attend their funerals. He will likely wither on the vine of life.

Posted by: Jim Gormley | Oct 7, 2018 6:23:19 PM

Chicago sentences can be pretty light. Ten years should be enough, when looked at from the standpoint of Chicago's lenient sentencing.

Posted by: federalist | Oct 7, 2018 6:56:24 PM

But if you are an addict and run up a few charges, then your a career offender under federal guidelines. Makes good sense right.

This guy shot another running away 16 times and his range is 4-20. Joke.

Posted by: MidWestGuy | Oct 7, 2018 7:57:34 PM

I am confused a bit, federalist, as to your normative principles here. Are you suggesting a defendant should get a sentence lower than you otherwise think he would deserve because other defendants in the region get lower sentences?

I know capital defense lawyers make that kind argument all the time --- stressing worse local killers who got sweet deals or only life sentences --- to try to get out of a death sentence for a murderer. Your comment here makes me think you see merit in this kind of "situational sentencing" argument for a reduced sentence, but I am not sure.

Posted by: Doug B | Oct 7, 2018 8:22:37 PM

In my state, former Officer Van Dyke's offenses would be called voluntary manslaughter, assault 2nd, and armed criminal action. He would be looking at -- respectively -- 5 to 15, 3 to 10, and a mandatory minimum of 3.

As a first time offender, but someone who abused a position of trust, I could see a sentence in the 7-10 range.

Posted by: tmm | Oct 8, 2018 10:18:14 AM

I was being sarcastic.

I am not sure what I think.

Posted by: federalist | Oct 8, 2018 6:45:29 PM

Having seen the video, the thing that bothers me the most is that Van Dyke continued shooting. McDonald fell to the ground from the first shot. After he fell, I don't see how a knife wielding person can remotely be considered a threat. Yet Van Dyke shot McDonald a total of 16 times over 14 seconds after he fell!

That's unnecessary and frankly ridiculous. And because of it, I would not show Van Dyke any kind of mercy. I think he should get an effective life sentence.

Posted by: William Jockusch | Oct 9, 2018 4:33:34 AM

The mandatory minimum is at least 12 years and probably much higher. In Illinois, any class x offense that causes severe bodily injury must be served consecutively. So each aggravated battery with a firearm that resulted in such injury will have to be consecutive to each other and to one other agg batt that did not result in SBI.

Posted by: Applaw | Oct 9, 2018 4:39:30 PM

Time Served. all McDonald had to do was comply with the lawful orders of the police.

Posted by: Rich | Mar 29, 2019 10:07:09 PM

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