In rural Illinois, money talks, defendants walk

Belleville (Ill.) News-DemocratMay 8, 2011 

BELLEVILLE, Ill. — Defendants accused of rape, homicide, drug dealing and other serious crimes in five rural southern Illinois counties have paid thousands of dollars into "anti-crime" funds that benefit or are controlled by local prosecutors in return for probation or dismissal of charges.

Professors at some of the nation's top law schools say this practice undermines public trust in courts and gives the appearance that defendants with enough money get preferential treatment and can buy their way out of trouble. They say such payments violate a basic ethical principle: Monetary contributions or payments resulting from plea bargains should not in any way benefit or appear to benefit the offices of the prosecutor, the judge or police involved in the prosecution.

"It is clearly unethical and a violation of the Constitution," said legal ethics expert Monroe H. Freedman, a professor at Hofstra University Law School in Hempstead, N.Y. Like other experts contacted for this story, Freedman cautioned he was not commenting about any specific case.

A Belleville News-Democrat investigation found that payments negotiated by prosecutors and approved by judges ranging from $1,000 to $15,000 resulted in probation or dismissal of felonies in 17 cases in Saline, Pulaski, Franklin, Wayne and Hardin counties.

Defendants made much smaller payments to prosecutors' funds in hundreds of other cases in these same courts. A random check of 50 felony cases showed that probation or a conditional discharge was granted in 48 cases. In two cases, the defendant received prison time. The average payment in those 50 cases was $400.

In Saline County, when charges were dismissed by a judge or dropped by the prosecutor, defendants still were required to pay thousands of dollars into one of these funds, even though there was no finding of guilt and the case no longer existed.

"I believe it is wrong for a plea agreement to include contributions to a fund administered by the prosecutor's office or by any agency that is involved in the prosecution," said ethics expert Steven Lubet, a professor at Northwestern University Law School in Chicago.

The 17 cases involving the $1,000 to $15,000 payments included four defendants with criminal records, including one who served time in state prison. Two of the defendants were freed after agreeing to pay, only to be caught again months later for the same crime.

Saline County State's Attorney Mike Henshaw, a former circuit judge, ended his office's connection to the "Saline County State's Attorney's Controlled Substance Fund" two weeks ago after the News-Democrat asked questions about it. The fund, established in 2005 by the previous state's attorney, collected $148,309 through February 2011.

After questions from the News-Democrat, Wayne County State's Attorney David Williams said he might abolish the practice as well. However, on Thursday, he said that while he has not had any involvement with his office's fund since he was elected and will continue not to use it, he will not take action to abolish it.

"But that doesn't mean I condemn it," he said.

Henshaw said he doubts state law allows these types of payments to be part of court-ordered plea bargains. "There will be no more pleas taken on this fund," he said.

The loss of revenue, he said, will probably mean he will have to lay off his office's investigator.

Henshaw said while payments to the fund occurred after he took office, they never were an issue until the News-Democrat's inquiry.

"I just never thought about it," he said.

Former Saline County State's Attorney David Nelson, who created the fund in 2005, said he first consulted state law to determine whether the payments could be tied to plea bargains, but he could not recall the specific statute.

"I remember it was vague," Nelson said.

Roger D. Hutchison, of Harrisburg, faced six sex crime felonies in Saline County Circuit Court, including predatory criminal sexual assault of a child, for two years until all the charges were dropped in 2009. He said authorities forced him to pay $7,000 to the state's attorney's fund.

"The charges were dismissed because they weren't true," he said, "but I still had to pay, even though I wasn't guilty of anything."

Assistant State's Attorney Jason Olson signed a motion to dismiss, and Saline County Circuit Judge Walden Morris dismissed all charges. The judge's order also stated, "The defendant shall contribute $7,000 to the Saline County State's Attorney's Controlled Substance Fund." Morris did not respond to written questions sent to his office.

Olson said in a written statement to the News-Democrat that the two alleged child victims retracted their allegations, making it almost impossible to prosecute Hutchison. He said he negotiated with Henshaw and Hutchison's lawyer to come up with the $7,000 figure.

"They wanted $20,000 at first. And then they dropped it down," Hutchison said.

"My lawyer said, 'Rog, they dropped it down to $7,000 and they'll drop all the charges.' I had been through this for two years. Running my name through the mud and the dirt. So I told him, 'I'll do it. Just to get it over with.'"

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