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People v. Mcclendon

DECEMBER 1, 1970.




APPEAL from the Circuit Court of St. Clair County; the Hon. HAROLD O. FARMER, Judge, presiding.


Defendant appeals from an order of the trial court denying her application for probation after she pleaded guilty to the charge of theft of property of $750.00 in value in violation of Chapter 38, Sec. 13-1(b) of the Illinois Revised Statutes.

The defendant became employed as a case worker for the Illinois Department of Public Aid in June of 1967 at a salary of $550.00 per month and was involved in two separate methods of defrauding the State during the period of January 21, 1968 and September 9, 1968. One method was to use her position as a case worker to make application for checks to be issued to a public aid recipient on the pretense that the recipient was in need of additional funds for emergency purposes. She would then notify the recipient to whom the checks were issued that the checks had mistakenly been issued and were for someone by the same name. The recipient cashed the check and gave her the money. She did this on twenty-four separate occasions. Another method she used was to obtain disbursing orders for additional money for food and clothing for public aid recipients. Twenty such disbursing orders issued at her request were not used by the person to whom they were supposedly issued.

The evidence disclosed that she was 29 years of age and resided in the City of East St. Louis, Illinois. She was married in 1960 and divorced in 1965. She is the mother of and the sole support of three minor daughters, age 10, 9 and 7. She attended Southern Illinois University at Edwardsville, Illinois, and graduated from the Belleville Junior College Department of Nursing. At the time of the hearing she was employed at St. Mary's Hospital as a registered staff nurse at a salary of $600.00 per month. She had no prior arrests or convictions.

The Probation Office in its report to the court stated:

"During our interview with defendant she was very remorseful for the defalcations that she brought about as a member of the staff of the Public Aid Case Workers. She admitted all of the thefts and stated that they were not engineered by anyone other than herself. During Mrs. Drummond's interview with defendant, she readily agreed to make restitution to the State of Illinois for the amount of money absconded. Defendant seems to be above average in intelligence and through her life time has given much time to further her education and presently is working in the nursing profession, and is making an adequate salary. However, she has had an unhappy marital venture and is burdened with the support of her three children. The father paying no support money for the children whatsoever.

We, of the probation department, feel that defendant is truly repentant and sincere in her plea to be given another chance and to make restitution. Should the court be so inclined as to grant defendant probation, we would be glad to work out a time payment plan on a monthly basis to enable her to remain in society where she can raise and care for her three daughters in their own home and not become a burden on society. As this is defendant's first offense of any type, we feel she is a fit subject for probation."

At the completion of the probation hearing the trial judge stated that there were no mitigating circumstances; denied appellant's application for probation and sentenced her to a term of not less than three or more than ten years in the penitentiary.

• 1 The primary objective in the administration of the criminal laws of this state is the safety and security of the community. Therefore, all should be interested in pursuing that course of action which is most likely to accomplish that end. In pursuit of that objective, the legislature of our State has enacted legislation providing that a person convicted of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation when it appears the defendant is not likely to commit another offense, the public interest does not require that the defendant receive the penalty provided for the offense and the rehabilitation of the defendant does not require that he or she receive the penalty provided by law for the offense. (Ill. Rev. Stat. 1967, ch. 38, par. 117-1.) Probation is more than a merciful act by the court in cases where there are mitigating circumstances; it is also an affirmative correctional tool used because it offers the most future protection to the public.

• 2 Probation has been described as an authorized mode of mild and ambulatory punishment intended as a reforming discipline; and whether or not sentence is imposed in the granting of probation, the liberty of one judicially determined to have committed an offense is abridged in the public interest. Toyosaburo Korematsu v. United States, 319 U.S. 432; People v. Nordstrom, 73 Ill. App.2d 168; People v. Smice, 79 Ill. App.2d 348.

A thoughtful discussion of the reasoning behind probation is contained in the Introduction to the Standards Relating to Probation promulgated by the Advisory Committee of the American Bar Association on Sentencing and Review:

"The basic idea underlying a sentence to probation is very simple. Sentencing is in large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against. Probation proceeds on the theory that the best way to pursue this goal is to orient the criminal sanction toward the community setting in those cases where it is compatible with the other objective of sentencing. Other things being equal, the odds are that a given defendant will learn how to live successfully in the general community if he is dealt with in that community rather than shipped off to the artificial and atypical environment of an institution of confinement. Banishment from society, in a word, is not the way to integrate someone into society. Yet imprisonment involves just such banishment — albeit for a temporary sojourn in most cases.

By the same token, however, it is to say that probation is a good bit more than the `matter of grace' or `leniency' which characterizes the philosophy of the general public and of many judges and legislatures on the subject. Probation is an affirmative correctional tool, a tool which is used not because it is of maximum benefit to the defendant (though, of course, this is an important side product), but because it is of maximum benefit to the society which is sought to be served by the sentencing of criminals. The automatic response of many in the criminal justice system that imprisonment is the best sentence for crime unless particular reasons exist for `mitigating' the sentence is not a sound starting point in the framing of criminal sanctions. The premise of this report is that quite the opposite ought to be the case — that the automatic response in a sentencing situation ought to be probation, unless particular aggravating factors emerge in the case at hand. At least if such aggravating factors cannot be advanced as the basis for a more repressive sentence, probation offers more hope than a sentence to prison that the defendant will not become part of the depressing cycle which makes the gates of our prisons resemble a revolving door rather than a barrier to crime."

The Standards Relating to Probation recommended by the Advisory Committee of the American Bar Association on ...

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