God's Justice for Becca
Is 30 Months in Prison Enough for a Child Sex Offender?
February 14, 2008
BY MARC JENKINS firstname.lastname@example.org
It was eight years ago.
Michael Dunkirk of Round Lake Beach had sexually attacked a 13-year-old girl twice in her home -- once while his wife was apparently in labor with his child. His potential criminal charges added up to 80 years in prison.
Richard Burt of Waukegan, a habitual sex predator, had sexually attacked an 11-year-old Waukegan girl in his home. He could have served 70 years.
They both were convicted.
Neither is in prison today.
Welcome to Lake County. Welcome to plea bargains.
For three months, Lake County News-Sun reporters analyzed the outcomes of child sex offender cases among the county's 5,200 prosecuted felonies in 2006.
Of the 244 felony child sex offender cases which could have produced a maximum of 4,000 years in prison, the average sentence given a child sex offender in Lake County is just over two years.
Even with the horrific high-profile cases that produce initial sentences of 50 years, child sexual predators in Lake County serve an average of 30 months in prison with a $1,028 fine and 18 months probation.
Plea bargaining -- the procedure of trading quick convictions for lesser time in prison -- is the rule for virtually every category of crime in Lake County as it is in many Illinois counties, but nowhere is the practice more controversial than for sex crimes against children.
Our research also discovered:
- The court advocacy system is not working for some victims of child sex abuse.
- Some victims and their families are not aware of their state-mandated rights.
- Sentences of some convicted child sex offenders are not meeting state sentencing ranges.
- Released child sexual predators live everywhere in Lake County, but one neighborhood has more than 30 sex offenders living within one square mile.
- At least 40 sex offenders living in Lake County are not properly registered and authorities are not sure where they are.
- Plea bargains, although inevitable, perpetuate and accelerate the cycle of repeat abusiveness by predators.
Lake County seems to aggressively pursue the arrest and conviction of those who sexually abuse children. But once predators get into the legal system, the punishment often does not fit the crime.
State sentencing ranges for convictions on aggravated criminal sexual abuse - a Class 2 felony which often involves sexual acts by use of force, a weapon or victimizing a family member - call for a prison sentence of 3-7 years.
In Lake County, the average sentence is 33 months.
Sex crimes, especially those against children, are doubly troublesome because those who commit the crimes routinely repeat the crime. Some experts say child sex offenders released from prison are four times as likely as other criminals to re-offend.
But Lake County State's Attorney Michael Waller denies there is a dangerous trend at work here.
"You cannot analyze the cases by just looking at the numbers," Waller said. "You have to look at the defendant and all the cases that are brought against them. Lake County has higher numbers for prosecuting child sex cases because we prioritize these cases and pursue them aggressively."
Class 1 and X felony cases, such as criminal sexual assault and predatory criminal sexual assault, carry mandatory prison terms and no probation. Offenders of Class 2, 3 and 4 felonies, like aggravated criminal sexual abuse, criminal sexual abuse, may get probation, Waller said.
In Waller's view, some sex abusers of children deserve probation and not prison.
David Hall, chief judge of the 19th Judicial Circuit, sees the same distinguishing differences.
"Each criminal case is different, and it is not subject to broad generalizations or comparisons," Hall said in an e-mail response to an inquiry. "It does not appear that The News-Sun has taken into account any of the specific, distinguishing factors about each case in making its broad observations and comparisons."
But victims' advocates say the rush to clear cases with plea bargains in assaults on children, and rationalizating lighter sentences, contributes to a system that can pay more heed to speed than to justice.
Plea bargaining as a 'necessary' tool
Notice the highway warning sign: "Hit A Worker, $10,000 fine, 14 Yrs. Jail."
Crimes against children seem as though they should fall at the high end of penalties, too. Who is more innocent, more vulnerable and suffers more permanent damage than children when they are brutalized by adults?
But nothing is so obvious when it comes to Lake County justice. High case loads in both the state's attorney's office and consequently Lake County courtrooms, mean plea bargaining -- for better or worse -- is the accepted norm. It may push, or at least affect, every decision the courts make on crimes against children.
Consider the case of ex-Long Grove psychiatrist Gary L. Almy, who was sentenced in 2005 to seven years in prison in a plea deal for sexually abusing three boys at his local boarding school for troubled teens.
Or John Zerba, an ex-substitute teacher at Lakes High School who got two years probation and a $100 fine after pleading guilty to inappropriately touching a sophomore girl in 2005.
Or Wayne Kuklinski, an ex-Lake Zurich High School football coach who served an eight-day sentence and paid a $500 fine in his plea deal for 43 counts of child pornography last year.
Judge Christopher Starck, immediate past chief circuit judge, said plea bargaining "is a tool that is necessary, and part of the landscape of the criminal justice system," and that the Legislature has created strict sentencing directives for judges and lawyers to work under.
Plea bargaining provides an efficient way to resolve a case, Starck said, and generally the defendant "gets the appropriate sentence he would have gotten anyway if the case had gone to trial."
As a practical matter, "looking at the number of cases, the public does not want to build courthouses big enough to handle all cases going to trial," he said.
Maybe. But the process that produces lighter sentences for child predators is largely a product of expediency and, oddly enough, fear by prosecutors that maximum sentences will be overturned by a higher appellate court.
"Cases have to be concluded by agreement and plea agreements," Waller said. "There's 5,000 felonies filed every year. ... If every case went to trial we'd really have backup. Cases need to be resolved by agreement and a lot of them are. It's just a fact of life."
Realities of the system
The system is complicated, admits Lake County Sheriff Mark Curran, who worked for years as a prosecutor in the State's Attorney's Office.
Ideally, he said a long prison term is desired by both the law enforcement that makes arrests, and prosecutors who try the cases, but other factors come in play. Often child victims can not or do not want to testify, which can affect a conviction. That's one of the factors that make plea deals popular.
Curran also attributed lighter sentences to judges, and their decisions to give harsh or light sentences within guidelines.
What you won't see, Curran said, are the more egregious offenders taking the lighter deals.
A 1998 state law requires violent sex offenders spend more time in prison or a mental institution. Curran, then an assistant in Waller's office, was successful in getting more prison time for two of the first sexually-violent persons in Lake County.
"The reality is many of those people haven't been released and never will be released," Curran said. "The worst of the worst never will see daylight again."
Not everyone falls into that category, however. As former prosecutor Curran said he understands why sentences and penalties vary. But as a parent he knows what type of sentence he'd want to see for anyone that would sexually assault his child.
"I would want to see justice done on as large a scale as possible," Curran said.
Courts driven by volume
But despite the rhetoric, there is little of Solomon's justice at work. There is no proven system to look within the soul of predators and assess if they will do it again.
What drives justice in Lake County is volume.
According to Hall, each circuit judge has between 313 and 357 pending felony cases.
With so many cases, there's likely no way every case could be brought to trial and have the maximum sentence aggressively pursued.
And even if he got the maximum for each criminal, says Waller, maximum convictions in every case wouldn't hold up.
"If every case was sentenced to the maximum, the Appellate Court would reverse them; you can't impose the maximum on all. The state's attorney is only part of the system; there are reviews all around," Waller said.
The Lake County Circuit Court still has the highest caseload in Illinois, even with recently added judges, Waller said. The impact of adding a fifth felony courtroom has helped move the jail population faster through the system, he said.
Child sex cases usually take longer, he said. "Often a defendant has no prior offenses and is looking at a possible prison sentence."
The capacity of jails and prisons is "not a limiting factor for these types of offenders; they are prioritized," Waller said.
So, if scores of maximum sentences won't stick and light sentences don't prove to rehabilitate the offender, what will?
Even Waller agreed that among child sex offenders, "most of them can't" be rehabilitated.
"Some of the younger people, perhaps if you get them young enough (won't re-offend)," Waller said. "We deal with a large number of sex offenders in juvenile court. Studies show if they get into treatment they can be rehabilitated. We try to get an appropriate sentence."
Asked if he has any recommendations for the Legislature to improve law for prosecuting and sentencing child sex offenders, Waller responded, "None that I can think of."
Accounting for the victim
If chilling statistics from the Illinois Coalition Against Sexual Assault -- a group of more than 30 not-for-profit sexual assault crisis centers -- are to be believed, one in six boys are sexually abused before their 18th birthday. For girls, the number leaps to a haunting one in three.
Bringing those who prey upon and assault our children to justice might be one of the more difficult tasks our judiciary has.
Sex crimes against children are difficult to prosecute because victims often are too afraid to testify against their attacker, said Suzanne Willett, a prosecution division chief in Waller's office.
She said if a child isn't able to testify, the choice could be dropping charges or negotiating a guilty plea, thus getting the defendant into jail and treatment.
"Our goal is not to re-traumatize these victims. Say you have a sex case and the guy has no priors and it's the uncle of a victim ... The victims' families come in and say, 'We don't want him to go to prison.' Even if I said, 'This is terrible, I want seven years,' he's a first-timer. Even if they were to straight-plea, they're going to get probation with the judge.
"But we've got to look at our victim. Do you want us to try every case and put a 4-year-old on the stand and re-victimize him for the same sentences they're going to get if they had straight-pled?"
And there's no accounting for the thousands of cases that merely go unreported.
Child sex crimes "are the most serious cases, but they are complicated and can't be lumped together," Waller said. "Somebody who assaults a kid should be sentenced and appropriately."
But what -- and more important, who -- defines what appropriate is?
James Lobitz was a Warren Township High School teacher and coach who got five years in prison in a 2006 plea deal after having what he called a consensual sexual relationship for three months with a 16-year-old student.
Is that appropriate for Lobitz? Waller? The judge? What about the victim?
Waller says his office's approach to prosecuting child sex cases is "based on the crime, the harm to the victim, and the defendant's prior record." Taken into account are whether the offense is for fondling versus penetration. "For assault of a young child, the defendant should go to prison."
Waller contends that probation for some child abusers is proper.
For plea negotiations, Waller said, "If a plea to a lesser charge is not appropriate, we say 'no.'"
Speaking hypothetically, Waller said, "We always take into consideration our victims' feelings. "You might say, 'Oh, he got only two years (of) probation', but that's good because our victim wasn't going to be able to testify. And our victim didn't want to testify.
"So do you (dismiss) the case because your victim gets on the stand and freezes, or do you get them probation with a felony conviction with treatment and six months jail?
"We explain to them what they can anticipate, explain the (sentencing) range what would be appropriate," Waller said. "If this was my child, I don't think that any punishment would be enough. But based upon what other sentences have been imposed for this type of offense, this is what we can realistically believe can be imposed."
Too much blame
On this merry-go-round, the judges blame the Legislature, the prosecutors blame judges who won't uphold the maximum; the families of victims might blame a seemingly indifferent system.
And the victims? On average, the median age for sexually abused minors is 9.
Who speaks for them?
David Rutter and Nicholas Alajakis contributed to this report.