EDITOR’S NOTE: This column originally ran on Oct. 10, 2018, shortly after the Van Dyke verdict. We’re reposting it outside our paywall following today’s sentencing.

Chicago police officer Jason Van Dyke, although convicted of second-degree murder, by a bizarre quirk in Illinois law faces a higher mandatory minimum sentence than a defendant convicted of the more serious offense of first-degree murder with a firearm.

Even though Laquan McDonald died from the gunshots that resulted in a murder conviction, Van Dyke’s sentence will be largely based upon the almost metaphysical question of how many of those same gunshots “severely injured” McDonald, rather than more important societal considerations such as the seriousness of the offense, deterrence of these sort of crimes in the future, the defendant’s prior criminal history and so forth.

A confluence of Illinois case law and sentencing statutes requires a mandatory minimum sentence of 96 years in prison if each gunshot severely injured McDonald, apparently overriding the jury’s determination that Van Dyke was guilty of the lesser offense of second-degree murder.

The jury agreed with the prosecution’s argument that Van Dyke’s shooting of McDonald was unjustified. The jury also found that Van Dyke sincerely, but mistakenly, believed he was justified. Thus, Van Dyke was effectively acquitted of first-degree murder and convicted of second-degree murder. (This is why Circuit Judge Vincent M. Gaughan did not announce a verdict on first-degree murder, as it merged into the second-degree conviction).

It is a safe assumption that Van Dyke requested that the jury be instructed on the mitigated offense of second-degree murder as a matter of strategy to lessen his potential prison sentence: A conviction of first-degree murder with a firearm would have required a sentence of at least 45 years’ incarceration with no possibility of early release.

Second-degree murder, on the other hand, is punishable anywhere from probation to 20 years in prison with possible release after 10 years. Moreover, committing second-degree murder with a firearm does not require an extra sentence of 25 years to natural life as a first-degree murder does.

So is officer Van Dyke, convicted of second-degree murder, facing a sentence as low as probation and as high as 20 years?

No. By a quirk of Illinois law, Van Dyke may face a mandatory minimum sentence as high as 96 years.

This is because the prosecution charged each gunshot as a separate offense of aggravated battery with a firearm, and each shot holds a minimum sentence of six years in prison.

Illinois’ sentencing statute, however, requires that the sentence for any Class X felony (such as aggravated battery with a firearm) that causes “severe bodily injury” be served one after the next (consecutively).

Thus, if Judge Gaughan finds that each shot caused severe bodily injury, he would be required to sentence Van Dyke to a minimum of 96 years in prison (16 multiplied by six). If the judge finds that only 10 of the 16 shots severely injured McDonald, the minimum sentence would be 60 years, and so forth.

Moreover, even though the shooting and the murder are the same physical act, Illinois case law requires Judge Gaughan to sentence Van Dyke on the aggravated battery charges, not the second-degree murder, on the counterinstinctual holding that aggravated battery with a firearm is more “serious” than second-degree murder (even when murder is the ultimate result of the gunshot wounds).

This is a poor premise upon which to sentence a murder. For one, the severe bodily injury factor seems irrelevant if the victim dies. For example, if a victim is shot once and survives, the “severity” of the injury would be relevant to the sentencing range. If the victim dies of that same gunfire, however, the sentencing range should be for murder, the accuracy of each gunshot rendered irrelevant.

Moreover, the jury wasn’t required to answer the question of whether each shot “severely” injured McDonald, only whether each shot was justified. As a result, the evidence at trial doesn’t provide a clear basis for such findings.

And last, this sentencing scheme results in a defendant convicted of the lesser offense of second-degree murder facing a minimum sentence twice that of a defendant convicted of first-degree murder with a firearm.

Our judicial branch can correct this problem by permitting a judge to sentence a defendant on second-degree murder rather than aggravated battery. (In People v. Lee, 213 Ill. 2d 218 (2004), Justice Robert R. Thomas in dissent argued exactly that). And our legislature can amend the law to permit, rather than require, consecutive sentencing in these sorts of cases where the gunshots constitute one course of conduct.

Either way, a fix is needed. The jury found Van Dyke guilty of murder, and he should be sentenced as such.