Courtrooms in the Clouds:
The Law and the Skin Trade in the Windy City

Illinois Starts Total Revision of the Criminal Code

By J. D. Obenberger, Attorney at Law
© MM J. D. Obenberger, All Rights Reserved

Thirty-nine years ago, the Illinois state legislature made a wholesale revision of all of the criminal laws that were on the books. By 1961, our State was nearly 150 years old, and the criminal laws resembled a mess in Grandma’s attic: There were criminal laws from every era and time, from the nineteenth century to that time. Some of the laws seemed to be at odds with one another, some of them seemed to deny common sense, and a great many of them had been passed at the urging of well-funded special interests, including industry lobbying groups. They were just strewn haphazardly into the law books, and you might find a crime laid out in sections dealing with mortgages or divorces or autos.

The legislature had two advantages in doing the job in 1961.

As you should know, except for Louisiana, all of the state jurisdictions in the United States, and the federal government, are “common law” jurisdiction, with laws derived from basic principles of English law as to who should be punished and under what circumstances.

In 1957 England had just studied its centuries-old body of criminal law with a blue-ribbon commission that examined the extent to which private “morals” matters should be the subjects of criminal laws. The Wolfenden Report sent shockwaves throughout the English-speaking world by its affirmation that, in matters of private moral behavior, society and the criminal law should defer to personal freedom. The Wolfenden Report’s recommendation that prostitution per se remain legal in England and that private homosexual conduct, including sodomy, be free from criminal sanctions, together with another English re-examination of how the criminal law looked at Heroin addiction, started a debate about the limits of what the criminal laws should punish among all of the peoples around the world who speak English and derive their legal systems from the English tradition.

In the same era, the American Law Institute began a project that resulted in the drafting of The Model Penal Code, to be submitted to the states for consideration, a draft Code that attempted to coherently and consistently bring fair and just principles of criminal punishment together.

The Illinois legislature adopted large portions of the Model Criminal Code in 1961, and a reading of the comments of the legislative commission in charge of the revision shows substantial deference to private decision-making the moral sphere.

But, after the past 39 years, Illinois Criminal law has begun again to show its age.

Like the barnacle-encrusted hull of an old ship, the Criminal Code has again become overwhelmed with a host of “designer crimes” engineered by corporate lobbying groups to protect their special interests. (Instead of letting a simple statute dealing with theft to cover shoplifting, we have a “Retail Theft” act giving merchants special powers and protections against suspects, that no one else has, we have special crimes involving Optometry, special crimes to protect car rental businesses, special crimes to protect cable TV operators, and a host of other well-healed interests that probably need the “special” protection of the criminal law less than their fellow-citizens.

Since just 1976, when I was a first-year law student, the pamphlet containing Illinois criminal laws has increased by 600% in size. The legislatures sure have been busy. In the old days, Will Rogers used to get laughs just by reading things from the newspaper on his radio show. I sometimes imagine that a creative Illinois comedian could do the same thing with some of the oddball “designer crimes” passed by the legislature at the urging of the special interests.

But it’s worse than just the mindless gullibility of state lawmakers licking the boots of the lobbyists.

After more than 30 years of “let’s get tough on crime” rhetoric by the authoritarian wing of the conservative movement, the law has shifted so far against the rights of citizens, that we find ourselves at the very edge of executing our fellow citizens who have committed no crimes at all.

Thirty-six jurors in three separate DuPage County trials all voted to find Rolando Cruz guilty of murder and condemn him to death. They were told that the standard of proof to do so was proof beyond a reasonable doubt. But he just didn’t do it. How can thirty-six find something to be true beyond any reasonable doubt when it didn’t happen? How do they live with themselves, how do they go on?

And Mr. Cruz, innocent of the blood of the thirteen-year-old girl was not alone. Thirteen others have been set free after determination that they were wrongfully convicted and sentenced to death.

This is what got the attention of society, and even of our Governor.

But it’s only the tip of the iceberg.

The criminal justice System of Illinois has broken down completely.

The System does not work, unless a conveyor belt to supervision, probation, and prison or death, regardless of guilt, can be called something that works.

The System does not work when, after trial, appeal, retrial, re-appeal, and post-conviction remedies, innocent people are punished until a university journalism school takes up the cause, does competent investigation, and finds the real truth.

These fourteen are the very smallest tip of an iceberg that encompasses the tens of thousands of our fellow citizens who find themselves caught up in the cogs and wheels of the criminal justice system each year.

No journalism school undertakes the quest to vindicate a man or woman wrongfully convicted of drug dealing, possession of a stolen auto, shoplifting, or prostitution. No, it’s the capital cases that get the attention.

If, after the most solemn deliberation upon the facts of the case and the strictest adherence to the rights of the accused under our law, innocent men are sentenced to the supreme sanction of the law unjustly, it must mean that our system is not reliable, not accurate, and not fair in cases also where there is less at stake.

The effect of the rhetoric about getting tough on crime has been to strip our judicial processes of the ability to distinguish between innocence and guilt. The effect of all of the talk about “coddling criminals” and of asking “What about the rights of the victim?” has been to change the fine and delicate balance of our centuries-old tradition of justice so as to make it so easy to convict a man that his actual guilt often doesn’t matter.

The trend of recent legislatures has been to placate the most authoritarian elements of the “moral right” and to give law enforcement everything it claims is necessary. The result, obvious to anyone who looks, is the wholesale erosion of personal liberty, autonomy, and privacy. (This is a matter in which all of those who read these words should join together, including the agents of law enforcement - - they, too read this column - - because they, also, sometimes find themselves caught up in this System with their fellow citizens).

The penalties for crimes all across the board have been increased so rapidly and dramatically that there is often genuine confusion in the courtroom as to the maximum punishment for crimes before the court. The legislature has been on a spending spree involving human life and suffering.

And so now that the Governor has appointed the commission, now more than ever, is the time to ask where this is all going.

· Should our criminal law punish obscenity? Should people ever go to jail for filming and selling videotapes involving consenting adults where no one gets hurt?

· Should people ever go to prison for deciding to sell sexual services? Should this ever be a felony? (And the legislature, as you know, has been busy increasing the cases in which sex workers face a prison term.)

The Governor’s Commission has its work cut out for it. The Governor has made some good choices, including Cook County Public Defender Rita Fry and Joel Bertacchi. Mr. Bertacchi is an extremely bright and talented attorney, formerly with the US Attorney’s office in Chicago who now serves as Solicitor of the State of Illinois and is on track to become US Attorney or a federal judge in time. His only handicap is that he’s been a career prosecutor.

My very strong feeling is that representatives of those who use adult entertainment services, workers in the adult trade, and adult business owners must now, more than ever, come together and make effective input before this commission, because, I assure you, the enemies of the adult entertainment industry will be there in strength. Even those protections this industry now enjoys under Illinois law will now be in jeopardy

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is