Is it time to amend First and Second Amendments?

When the first Congress added the Bill of Rights to our U.S. Constitution, freedom of speech, freedom of worship and the right to bear arms were put at the top of the list of protected rights.

The First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech … .”

The Second Amendment provides, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

So, is it time to “update” these amendments? To amend them to bring them into conformity with the more enlightened current notions of perhaps half of the American people.

Should the First Amendment perhaps be revised to provide, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; Provided, however, that no religious denomination shall make or enforce any ecclesiastical rule or law which shall abridge the privileges or immunities of citizens of the United States; nor shall any religious denomination deprive any person of life, liberty, or property, without due process of law; nor to deny to any person the equal protection of the laws of the United States. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article?


Should the revised First Amendment further specify, “Congress shall make no law abridging the freedom of speech, unless that speech has first been determined to be ‘disinformation,’ by the president’s office of disinformation. Congress hereby authorizes the president to establish a presidential office of disinformation, and to appoint the officers thereof. That office shall have the sole power of determining what speech amounts to “disinformation,” and to prohibit dissemination thereof whenever that office determines that dissemination of that “disinformation” creates a likelihood of danger to the government or people. Disinformation shall be punishable by imprisonment from one to five years, and a fine up to $5 million.


Should the Second Amendment be amended to provide, “The right of the people to keep and bear arms, shall be subject to the power of Congress to establish any and all limitations on that right as Congress shall adjudge reasonable?



Would we be better off with these simple amendments to our Bill of Rights? Should the Bill of Rights be subject revision by the majority vote of both Houses of Congress, when approved by the president? Whenever a majority of the American people hold a referendum to amend the First and/or Second Amendment?

Or should the rights guaranteed in the Bill of Rights be above the will of any Congressional simple majority? Above the power of a simple majority of the voters to amend?

It has been said that the purpose of the Bill of Rights was to put the inalienable rights of the American people above the power of repeal or amendment by a simple majority? Were the men who did that right or wrong?

First Published in the Moline Dispatch and Rock Island Argus on June 25, 2023. 

Copyright 2023, John Donald O'Shea

Cure for gang violence is faster trials

Judges, prosecutors and prompt jury trials are the remedy for street gang violence

Prosecuting street gang violence is most often very difficult. The members of the gangs perpetrating the violence most often do whatever they can to avoid testifying honestly for the State’s Attorney prosecuting the case. That includes “taking the 5th Amendment,” disappearing to avoid testifying, telling half-truths, and even engaging in perjury. The members of the rival gang often do the same, preferring to rely on street violence and revenge rather than on the Criminal Justice System.

Notwithstanding these obstacles, the only way to break the cycle of gang violence is prompt prosecution. The gang members have to know that it is more dangerous to be caught breaking the law than it is to engage in street gang violence. When a gang member is convicted of murder, the penalty imposed must be near the maximum to make it clear to all gang members that the next killing will merit a similar penalty. The penalty must be sufficient to take the fun out of shooting at opposing gang members on sight.

The Sixth Amendment to the U.S. Constitution (Article 6 of our Bill of Rights) provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …”

The Illinois Legislature, except in cases where the defendant is not fit to stand trial and where the defendant causes the delay, to implement that Sixth Amendment right has provided that where a defendant is in custody, he shall be tried by a court having jurisdiction within 120 days. A defendant who is out on bond and who demands a speedy trial has to be brought to trial within 160 days in the absence of an exception.

The speedy trial rule exists because a defendant awaiting trial in custody is serving the equivalent of prison time before he has been found guilty. Without the rule, a defendant taken into custody could sit in jail indefinitely if the prosecutor indefinitely delays bringing his case to trial.

But the speedy trial rule also exists to require cases to be brought to trial within the stated time limits to afford the victims of crime assurance that the law will deal with the alleged perpetrator of a crime as quickly as the needs of the prosecution and defense permit.

Shortly after I was elected a judge in 1974, I was sent to a “New Judges’ Seminar,” conducted by the Hon. Roy O. Gulley, the Illinois Supreme Court’s administrative director of the Illinois Court System.

Among the things Judge Gulley told us were the following:

1. A judge should not sit on the bench like an “alabaster bust of his grandsire.” A judge is not a mere umpire; he is the governor of the trial. It is his non-delegable duty to see that justice is done.

2. Besides having judicial duties, a judge has administrative duties. Justice delayed is justice denied. The judge must control his own docket; he cannot cede management of his docket to the attorneys, the clerks, or anybody else.

3. When you set discovery dates, pre-trial dates, and plea dates for a Criminal case, set for the “ordinary” Criminal Case. The trial date for an “ordinary” criminal case should be set for no more than 60 days after the defendant’s initial appearance in court. Set the “extraordinary” cases on the same 60-day schedule. If continuances are required, they should always be granted to a day certain. (In running the Criminal Division in Rock Island County, my continuances were always for 14 days, but the attorneys were aware that they could always get one or more additional 14-day continuances for “good cause.” In the 8.5 years that I served as the presiding judge of criminal, I cannot recall ever granting a 3rd continuance — even in a murder case.)

4. Continuances should be granted only for something that was not foreseen when the dates were initially set and only for bona fide cause.

Before I was appointed head of the Criminal Division in Rock Island County, the Illinois Legislature provided that defendants who failed to appear for trial on the date set by the court could be tried in their absence if they were admonished at the time the trial date was set of all the constitutional rights they would be forfeiting if they failed to appear for trial.

In an era when the idiots in the legislature have legislated to eliminate cash bail, trying defendants who have been properly admonished and who fail to appear for trial in absentia strongly deters defendants from jumping non-cash bail. Once "old Gang-bang Charlie" is found guilty in absentia and a warrant is issued for his arrest and confinement pending sentencing, the word will get around the street gang community like wildfire. It takes about two minutes to properly admonish “that you will be tried in your absence if you fail to appear for trial.” It saves the sheriff hours of work tracking down the absconding defendant. And it normally results in a quick, easy trial for the court and the attorneys.

When judges are being paid roughly $200,000 per year, it is not unreasonable for the voters to expect the judges to conduct prompt trials. There is no legitimate excuse, barring the defendant’s unfitness, for even murder cases taking a year for “disposition” — i.e., until plea, dismissal or the first day of trial.

Those that say it can’t be done are too lazy to try. Once the judge makes up his mind to move cases, if the prosecutor cooperates, the average time of disposition should be no more than 90 days.

And if our judges or prosecutors need a seminar, I’ll teach them what Judge Gulley taught me.

First Published in the Moline Dispatch and Rock Island Argus on June 18, 2023. 

Copyright 2023, John Donald O'Shea

A simple plan to get "big bucks" out of judicial elections

It is long-past time for the Illinois Supreme Court to make a new rule to get “big bucks” out of Illinois Judicial Elections. That rule should be designed to remove the incentive for donors to dump obscene amounts of money into Illinois Judicial elections.

What am I talking about?

Example 1. Lawyer X runs to fill a vacancy on the Illinois Supreme Court. X is a lifelong Democrat. To get Lawyer X on the Supreme Court, The Democratic Governor of Illinois contributes $1 million and the Democratic Speaker of the Illinois House contributes $350,000, to Lawyer X’s “Campaign Committee.” They do so because they believe it is more likely Lawyer X will approve the Congressional reapportionment map drawn by Democrats, than his Republican opponent.

Example 2. Lawyer X wins election and is now Mr. Justice X. After serving his 10-year term, he faces a “Retention Election.” He has no opponent. The ballot simply askes, “Shall Judge X be retained.” Q and Z are two Republican billionaires. Because Q and Z consider Justice X likely to vote for the Democrat’s reapportionment map, which they consider outrageously “gerrymandered,” they create a “Committee for an Honest Judiciary” and fund it to the tune of $7 million. With that $7 million they plan to run newspaper ads labeling Justice X, who has declined to recuse himself from consideration of that reapportionment case, “The best Judge money can buy,” “The governor’s pet judge.” Etc.

The governor and the speaker will be de facto parties-defendant (in their official capacities) in the suit to have the Democrat’s map declared “unconstitutional. The “CHJ” will also funds TV spots, bellowing that “Justice X, who has refused to recuse himself, after having taken $1,350,000 from the two defendants, is guilty of creating a gross appearance of impropriety.” And the “CHJ” will probably go on to accuse Justice X of “corruption” — “No honest judge takes $1.35 million as a campaign donation, and then sits on a case involving the donors.”

Lost in the hyperbole is the concept that the money wasn’t really given to the judge; it was, instead, given to his “campaign committee,” and that committee never told the judge of the S1.35 million. But then, of course, news of the donations makes all the newspapers.

My point is this: If Justice X sits on a case where a party donated $1.35 million, he paints a target on his back, and puts himself in a “no win” situation. Even if his decision is impeccably correct, roughly half the voters in the state will focus only upon the fact that he has taken $1.35 million from a party. This brings not only Justice X into disrepute, but, even worse, it brings the entire Illinois Judiciary into disrepute.

Can limits be put on the amount of money a person, corporation or other entity can contribute to a judicial campaign? Could the Supreme Court write a rule that said, “No judicial campaign committee shall receive a donation from any person, corporation, or other entity exceeding $100?” $500? $1,000? (Note: the sum would have to be small enough that no reasonable person would believe that such a campaign donation would be sufficient to influence any rationale judge.)

But would such severe limits pass constitutional muster? I don’t know. Donations have been equated with free speech in the case law.

I would therefore opt for an alternate “solution.” I would strongly suggest that the justices of the Illinois Supreme Court write the following Rule of Judicial Conduct:

“After his/her election or retention, the judge shall promptly make himself aware of all donations made to his “campaign committee “and keep a list of all those donations on hand. 

 

"The judge shall have a duty to recuse himself/herself in all cases where it appears that donating person, corporation or other entity has donated directly or indirectly more than $500 to the judge’s “campaign committee.”

I suggest the sum of $500 because no Illinois Judge, making an annual salary of $212,058 to $258,456 is going to be bribed for $500.

I am reasoning that if a litigant, who otherwise would donate $1 million or $5 million to a Judge’s “campaign committee,” knows that the judge won’t be able to hear his case, the incentive to donate vast amounts of money to the judge’s “campaign committee” will immediately disappear.

Maybe I am a “Pollyanna.” But I don’t like seeing judges paint targets on their own backs.

I don’t like judges doing anything that is likely to create an appearance of impropriety. The conduct of a single judge can bring an entire judiciary into disrepute — even if it is “ethical” under existing rules.

The drafters of the 1970 Illinois Constitution’s Judicial Article wanted to get money out of judicial elections. It’s time for the Illinois Supreme Court to implement that intent.

First Published in the Moline Dispatch and Rock Island Argus on June 11, 2023. 

Copyright 2023, John Donald O'Shea

Street Gangs — A return to Barbarism and the Dark Ages

At the end of the first century, or at the beginning of the second an unknown Christian moralist wrote an instructional tract known as the Didache. It begins as follows: “There are two ways, one of life and one of death, and there is a great difference between the two ways.”

 Recent events on the streets of Davenport demonstrate that that statement still rings true nearly 2000 years later. It puts in focus what happens when segments of society opt for “revenge,” rather than working within our criminal justice system, based on our U.S. Constitution. 

 

There is a fine line between a civilized society and barbarism. That line is crossed when citizens discard our criminal justice system, with its built-in safeguards for victims and defendants alike, and op instead for “revenge.” In doing so, the discard civilization and choose instead a “system” of survival of the fittest — might makes right —the ends justify the means. 

 

There was a time in human history, when there were no written laws and there were no courts to punish criminal acts. 

 

Moses and the Jewish people wandered for 40 years in the Sinai Desert. Moses realized that when the Jewish people reached the “Promised Land” they would need laws to punish murder, theft, perjury, and interference with established marital relationships. 

 

The Mayflower Compact of the Pilgrims was a similar acknowledgment. 

 

In the absence of the criminal law, to obtain justice for a wrong done, the injured party, his family, or his tribe relied upon “revenge.” Our newspapers daily show that that can happen even in a modern American city. Street gang killings are generally “revenge” killing. “Revenge” is their justification.

 

A recent Disptach front-page article by Tom Loewy, “It just a fact of life,” demonstrates the point. 

 

With no little effort the following facts can be extracted from the article. 

 

1. On May 19, 2018, 16-year-old Jovontia Jones was shot to death outside Hilltop Liquor,

during a drive-by shooting. No one has ever been charged in connection with his murder. 

[Note that his death is posited as the justification for the following criminal acts]. 

 

2. On Tuesday, May 22, 2023, John E. Hanes III was found guilty of the 2021 murder of Jamon Winfrey (age 14).

 

3. Nessiah Clark is presently on trial for the August 2022 attempted murder of Delmont Thomas. Clark is also charged with additional offenses, including possession of a firearm by a felon. 

 

To understand, how revenge fits into this equation, consider the following:

 

1. A woman present as a spectator at the trial of Nessiah Clark, identifying herself as Nessiah Clark’s mother, told Mr. Loewy, 

 

“I will say this: the violence of that day happened because of what happened in the past. Nobody shot anybody that day out of the blue, for no reason. Nessiah has been shot at before, and his half-brother (Aden), was shot at in the same incident. …. [D[id he carry a gun. Yes. he did. ….

 

“I would rather Nessiah to have a gun and not need it, rather than need a gun and not have it. … Maybe people don’t understand it, but there are killers out there. The threat of violence is very, very real for these yonng men. 

 

“It’s when he’s out on the streets, that I worry. Every time I hear sirens I wonder if he’s the one laying somewhere dead….”

 

2.. Davenport Police Sergeant Jordan Sanders said, Hanes was a member of the MMG. Street gang. Hanes fired on the car Whitney was in, because he believed members of Savage Life street gang. Sanders continued, “MMG and Savage Life had a “Shoot on sight” policy, when the spotted each other.”

 

3. According to Jovontia’s aunt, Sylvia Abbey, “MMG was basically a gang formed to avenge Jovi’s death.

 

 

Any rational writer or reader, of course, must be cautious when accepting the statements of street gang members, their family members, and their “associates.”. People who are willing to justify [revenge] murder, attempted murder, and possession of firearms by convicted felons, might just be inclined to lie when it serves their purposes. 

 

But my point is this: Street Gang Violence is a return to an age before criminal justice systems were known.  It is a return to survival of the fittest, and might makes right. It is a system which affords no rights whatsoever to the accused, and provides no safeguards for the innocent. Street gang violence, to be blunt, is a return to barbarism — and to the dark ages, where each killer is his own judge, jury and executioner.  

 

The people who eschew the criminal justice, turn their backs on assisting the police, and tolerate for street gang violence, deserve exactly what the get. 

 

Is it really possible to claim “Lives Matter” when guys with guns, probably acquired on the “Black Market,” gun down a 16-year-old boy standing outside liquor store? A 14-year-old-boy riding in a car? Another male outside a city gas station?

 

Is it really possible to claim that “Lives Matter” when rival gangs have a “Shoot on sight” policy? When a mother “would rather her son, a convicted felon, have a gun and not need it, rather than need a gun and not have it? And why did the convicted felon “need” a gun? Here, if the State’s allegations are true, he “needed” a gun to attempt murder.

 

The residents of a community have a choice There are two ways: The community can assist the police in bringing criminals to justice; or, they can put their trust in street-gang gunmen who operate a system of  “revenge.” 

 

I spent most of my professional life around police officers. A very few were not fit to be a police officer. But no cop that I have ever known has had “a shoot on sight policy” toward any group of people.

First Published in the Moline Dispatch and Rock Island Argus on June 4, 2023. 

Copyright 2023, John Donald O'Shea