Criminal Sentencing - A State Legislative Panel Looks At Whether There’s A Better Way To Punish

Nov 1, 2014

Not long ago, attempts to raise criminal penalties in Illinois were met with a standing joke. All such legislation had to make it through the Senate Judiciary Committee, where by informal agreement, it could only advance if it satisfied the sole criterion of the Cullerton Rule. On April 20, 2005, Sen. Edward Maloney, a Democrat from Chicago, presented House Bill 2699, a bipartisan measure that sought to raise the penalties for identity theft. “As you’re well aware, the use of the Internet and electronic bill paying and purchases — as that has increased, so has the incidence of identity theft,” Maloney told the committee. “I feel this bill would discourage and act as a deterrent to this type of activity.” First offenses had been Class A misdemeanors, punishable by up to a year in jail. With this change, first offenses for theft of up to $300 would be Class 4 felonies, making convicts eligible for up to three years in prison, with even more time for greater dollar amounts and subsequent offenses.

These kinds of penalty enhancements were usually no-brainers. Although testifying before the Judiciary Committee can be intimidating for non-lawyers such as Maloney, he was not hesitant. “This came out of the House 113-0,” he said. That’s when Sen. John Cullerton interjected. A Chicago Democrat and president of the Senate, Cullerton was then chairman of the Judiciary Committee. “Senator Maloney, not being on the committee, I should warn you — or tell you — about a rule we have here in this committee in terms of increasing penalties,” Cullerton said. “Nothing to worry about, you’re within the rule. … But we have a rule that when you want to increase penalties, you can only go one at a time,” for example, making a Class 4 felony into a Class 3. “One penalty at a time, so we save room for next year and future General Assemblies.” Thus, the Cullerton Rule, which for a time seemed like the only thing keeping self-styled “tough on crime” politicians from maxing out penalties on every crime in Illinois.

Had senators waited a day before voting, they might have seen an analysis filed by the Department of Corrections, forecasting that increasing penalties for identity theft would result in 38 additional inmates at an operating cost of nearly $7.2 million over 10 years. Had senators waited a decade, they might have seen that Illinois’ prison population would grow from 44,669 in summer 2005 to 48,902 at the end of August this year. Of course, senators didn’t wait. “Are there any questions?” Cullerton asked. “There being none, Senator Cullerton moves ‘do pass,’” he continued, and without a single dissenting vote in the entire General Assembly, pass it did.

For years, the Cullerton Rule notwithstanding, most penalty-enhancement legislation met with that kind of unquestioning acceptance. The cumulative effect of HB 2699 and countless similar bills has left Illinois with prisons teeming at 150 percent of the number of inmates they were designed to incarcerate. The aforementioned increase of 4,233 men and women between summer 2005 and summer 2014 is greater than the population of Stateville Correctional Center, Illinois’ most populous prison. Yet in the same time period, Illinois has closed two prisons and several adult transition centers. Experts and activists have long said this situation is unsustainable from a financial perspective and counter-productive in terms of public safety. This year, a group of state legislators have formed a special committee to consider whether there’s a better way to handle sentencing in Illinois.

One way or another, crowding could force policymakers to reduce the prison population. That’s the judgment of John Maki, director of the John Howard Association, a nonpartisan group that’s been monitoring Illinois prisons for more than a century. “There’s two choices here: Either we find ourselves in federal court, or we reduce the prison population through smart and safe changes in law and policy,” Maki says.

Federal court is where the state of California found itself when its prisons were at 200 percent of their designed capacity. The state argued its case all the way up to the U.S. Supreme Court, fighting a lower court order to bring the population down to 137.5 percent of capacity. In 2011, the justices ruled that prisoners had to be set free. “The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment,” Justice Kennedy wrote for the 5 to 4 majority, citing the U.S. Constitution’s prohibition of cruel and unusual punishments. “This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.” This February, the courts gave the state of California an additional two years to try to reduce the population through rehabilitation programs.

Maki says Illinois ought to take those steps now. In October, the John Howard Association issued a “roadmap” for changing the state’s prison system. It lists a number of policy options, from lowering sentences to giving inmates more ways to earn time off their sentences. But at its core, the document urges a change in philosophy. Maki says in the next four years, tinkering at the margins won’t be enough. Illinoisans need to ask themselves: What do we want from our prisons? “Do we want a system that houses 49,000 and is projected to go much higher in the next four years, even though it’s only built for 32,000, so essentially we’re talking about a warehouse?” Maki asks. “Or do we want a system that makes wise use of resources?”

The question of resources has given prison reform advocates like Maki an unexpected ally: fiscal conservatives. States spend big money locking people up — $1.3 billion annually in Illinois — and that’s a fat target for politicians interested in putting government on a diet. The Texas-based group Right on Crime has support from high-profile Republicans, such as former House Speaker Newt Gingrich and former Florida Gov. Jeb Bush. Indeed, many of the states that have explored ways of reducing prison populations are red states, such as Georgia, Kentucky and Texas. Right on Crime criminologist Derek Cohen acknowledges that the Republican reputation for being tough on crime gives conservatives political cover to reduce incarceration: “It’s almost a case of: It took Nixon to go to China, (and) it took Texas to say this needs to stop right now.”

Like other advocates across the country, Cohen says changing the prison system requires rethinking what incarceration is for. “Prison is for the people we’re scared of, not the people we’re mad at,” Cohen says. “In other words, prison is for the people that need to be incapacitated while they receive rehabilitation or while they receive their punishment.” But that is not yet a universal sentiment among politicians.

Right on Crime, the John Howard Association and the ACLU of Illinois have all suggested paroling elderly inmates or those who are so sick they cannot possibly be a threat to society. As they present it, that gets the most expensive inmates out of prison and into a position where Medicare or Medicaid, rather than state correctional dollars, can fund treatment. That idea drew criticism from Republican Rep. Dennis Reboletti, a former prosecutor from Elmhurst. “You talk about the people that are quite sick. Well usually their victims are either dead or they have been raped and molested, and they have their own problems that they face for their entire lifetimes,” Reboletti says. “There’s no conversation about what the victims have to say. There’s no conversation about the finality of a judgment in court so that people know what the sentence is.” He says inmates who are in prison long enough to become geriatric are often there for committing multiple murders. “Like the gang members that were busy killing a 9- year-old the other day — I would have no compassion for them at any point in time while they’re in Stateville,” Reboletti says.

The challenge for reformers will be convincing policymakers to set aside their gut feelings about justice and retribution, and look instead at what evidence suggests would be the best way to approach correcting criminal behavior. “Politicians … assume what the public’s going to think, and act in a way to avoid being cast as soft on crime to an imaginary public — that’s not the public sentiment, and hasn’t been for some time,” says Doug Marlowe, a lawyer, psychologist and researcher at the National Association of Drug Court Professionals. He recently gave the keynote speech at a conference of Illinois judges, lawyers, probation officers and other “problem-solving court” professionals.

Marlowe says victims of crime are generally more rational than many policymakers: “You ask members of the public: ‘What would you feel if we started sentencing people in a way that actually reduced crime, protected public safety and actually rehabilitated people?’ And they will look at you like you have three heads, and say, ‘Isn’t that what we’re doing now?’ And then you say, ‘No, that’s not what we’re doing, and we haven’t been doing that for 40 years. We punish people for the sake of punishment, and rehabilitation and public safety are not the goals of sentencing, and have not been the goals of sentencing in the United States since the ’70s and ’80s, and so what do you think about us returning to punishing in a way that’s actually effective?’ Most people, including victims’ groups, would say, ‘Uh, yeah, why don’t you do that?’”

Victim-advocate Jennifer Bishop Jenkins says there’s a reason America got “tough on crime” in the 1980s and ’90s. “Sentencing, over the loosey-goosey ’60s and ’70s, had become meaningless,” she says. Victims were retraumatized when killers got parole hearings every few years, even when it was obvious they would never be released, like Charles Manson. Nevertheless, Jenkins does support a less prison-oriented form of corrections, at least when it comes to nonviolent offenders. She says many victims of crime support community-based solutions because crowded prisons are under such pressure to let inmates go. “Why would you let out killers to make more room for nonviolent drug offenders?” Jenkins asks.

After decades of easy penalty enhancements, there are signs that the era of mass incarceration may be passing into history. This process is well underway elsewhere in the country and has gradually been coming to Illinois. For several years, a select group of legislators — notably the House Judiciary Committee, chaired by Democratic Rep. Elaine Nekritz of Northbrook — has been asking questions about sentencing legislation, questions like, Will this actually reduce crime? Lawmakers also created the Sentencing Policy Advisory Council to provide them with research and analysis on which to base criminal justice decisions.

A turning point came late in 2013, when Chicago Mayor Rahm Emanuel tried and failed to ram a controversial penalty-enhancement bill through the General Assembly. Senate Bill 1342 would have imposed mandatory-minimum prison sentences on people charged with certain gun crimes, ostensibly to target gang members in a city that has become nationally infamous for its violence. The legislation’s sponsor, Democratic Rep. Michael Zalewski of Riverside, projected confidence heading into the vote. But a coalition of African-American lawmakers, fiscal conservatives and even the National Rifle Association teamed up to block it from so much as coming up for floor debate.

Ultimately, Zalewski and his opponents settled for a classic Springfield alternative: If at first you don’t succeed, appoint a task force to study the problem. The Joint Criminal Justice Reform Committee is a bipartisan group of 10 senators and representatives tasked with nothing less than examining the entire sentencing structure of Illinois. As if that wasn’t enough, it’s also supposed to ensure that no racial, ethnic or minority group is unfairly treated. The committee’s report is due December 1.

This kind of outcome can be an incubator for cynicism: politicians pretending to learn about a problem, meanwhile scheming to ram their original idea through once the task force is finished. But observers say this effort seems sincere. “I’d ask the members of the committee to do their best to refrain from talking about any old ideas,” Zalewski said at a hearing in Chicago. “It’s in the spirit of this committee to talk about proposals and ideas to get us out of the obvious problems that we’re in today.” Taking up that challenge, Emanuel proposed decriminalizing possession of one gram or less of any drug. The mayor, however, will soon stand for re-election, and may still try to get some sort of gun legislation on which to campaign.

Nevertheless, Maki says he’s optimistic. “I think one of the most promising developments since I’ve been doing this work, for the last five or six years, is the [committee],” he says. “It’s engaged in thoughtful debate … they are arguing about things. It would be nice if we could just turn a switch on and say, ‘We’re going to right-size our system, we’re going to use it only for these principled ways,’ but people are going to have disagreements about that.” And that’s OK: These kinds of things should be hard. “The reason (we’re) where we are today is we took a too-easy approach to crime,” Maki says. “For too long, a lot of us assumed that the answer to crime was simply more prison. And what we’re realizing more and more … is that prison is good for certain things: for people who are convicted of serious offenses and pose a serious risk to public safety, prison is a good place for that person. For everyone else, it just doesn’t do much good. And it’s really, really expensive.”

Few people expect the Joint Criminal Justice Reform Committee to be the final reckoning on crime and punishment in Illinois. But in considering evidence-based approaches to criminal sentencing — what does and does not rehabilitate criminals, what does and does not protect the public — experts say lawmakers are heading in a more thoughtful, constructive direction.

Illinois Issues, November 2014