It's a Crime: State's Criminal Code has become increasingly difficult to navigate
State Sen. Ira Silverstein figured Illinois needed a new criminal law. He had heard on the evening news that a New York City real estate mogul fed and paid jurors after they deadlocked over tax evasion charges against him. The Chicago Democrat wanted to keep that from happening here. There was nothing authorities could do to stop Abraham Hirschfeld from taking jurors out for a meal and giving them each $2,500 after the judge declared a mistrial. Giving gifts and money to jurors after a verdict wasn't against the law in New York.
It also wasn't against the law in Illinois. Though no one in the legal community could recall anything like it happening here, Silverstein thought the state could use some preventative maintenance. He promptly introduced legislation to make it a crime in Illinois to give gifts or money to jurors after they render a verdict. The General Assembly passed the bill. Gov. George Ryan signed it. And the state gained one more criminal offense.
Behold the political process in action. More particularly, behold the impact of politics on the state's Criminal Code, the collection of(continued on next page)
A quarter century of getting tough
In the 1970s, with crime rates on the rise, policy-makers shifted the focus of criminal justice law from rehabilitation to punishment. They began requiring stiffer sentences for violent crimes and drug offenses. And they began getting tougher on juveniles.
Sources: Charles N. Wheeler III and the Taxpayers' Federation of Illinois which ran a two-part series on the state's corrections programs in the February March and April 2000 issues of Illinois Tax Facts; Department of Corrections Annual Reports; Illinois Criminal Justice Information Authority; and the Illinois Compiled Statutes
The death penalty is reinstated. The law allows capital punishment for offenders convicted under any of seven categories of murder. The list of death-qualifying factors continues to grow.
Determinate sentencing is implemented. Offender is sentenced to a specific number of years in prison, rather than a range of years.
A new Class X category of felony is created for such serious crimes as attempted first degree murder, aggravated criminal sexual assault and armed robbery. These crimes carry a mandatory sentence. Parole is replaced by mandatory supervised release at the end of the prison terms.
Penalty for residential burglary is boosted. No probation allowed.
Extended sentences allowed for certain violent offenders if the victim is a child, a senior citizen or handicapped. statutes that detail what Illinois considers unlawful and what the state has determined is appropriate punishment. Every year, for better or worse, lawmakers add new crimes, expand the scope of existing offenses and toughen penalties across the board. As a consequence, the code has become increasingly difficult to navigate for even the most experienced lawyers and judges and is sometimes redundant or contradictory.
It hasn't had a major overhaul since 1961. And over those 40 years, countless amendments reflecting shifting attitudes toward crime have been added, often in piecemeal fashion. Whereas the original code was designed to take a holistic approach to crime and punishment, amendments often were made with little consideration of the code's general statutory scheme.
In fact, the state's criminal laws, now scattered throughout 90 acts, encompass some 240 pages. They outline such offenses as soliciting, kidnapping and using "intoxicating compounds," the law that prohibits recreational use of 15 substances, including trichloroethylene, methyl cellosolve acetate and scopolamine. There are laws prohibiting every conceivable reprehensible act, from possession of burglary tools to murder.
And that's just the beginning of the logistical nightmare. The Code of Criminal Procedure, which governs court proceedings, and the Unified Code of Corrections, which governs sentencing and rehabilitation, have their own places in the Illinois Compiled Statutes.
"The legitimate legislative process over a period of three decades has led to the creation of inconsistencies, particularly within the sentencing portion of the code," says Supreme Court Justice Thomas Fitzgerald, former presiding judge of the Cook County circuit court's Criminal Division. "It used to be that a trial judge pretty much knew what the sentencing rules were for virtually every given circumstance because of the experience that we had. Now, I don't think there's a judge in the state that would find himself or herself in that position."
A new Criminal Code may be on the way, though. Gov. George Ryan last May appointed a 33-member commission to streamline and update the code. He ordered the commissioners, mostly lawyers and judges from throughout the state, to rewrite the code so that it's readable and understandable. In addition, he wants the commission to draft provisions to reflect "significant changes in our society, such as growth of drug trafficking, increased viciousness of gangs and the expanding criminal frontier of computers and the Internet."
"These changes in society are not adequately integrated into all the appropriate facets of our law but must be in order to ensure a cohesive and fair approach to crime and punishment for the next century," Ryan wrote in his executive order establishing the panel.
As a result, more offenders are serving longer prison terms, sparking a prison building boom over the past couple of decades. Though crime rates have begun to decline, the impulse to "get tough on crime" has not. Nor has the prison building boom.
Penalties are toughened for possession and delivery of certain drugs and drug paraphernalia.
Special offender "boot camps" are authorized.
Multi-county grand juries authorized to investigate and prosecute drug-related and money laundering activities.
Truth-in-sentencing requires offenders convicted of murder lo serve 100 percent of their sentences and offenders convicted of other serious crimes are required to serve 85 percent of their sentences.
Youthful offenders can be sentenced simultaneously as adults, with the adult sentence stayed if the offender meets the requirements of the juvenile sentence.
Sentences for certain felony offenses involving guns can be increased by a range of 15 years to life in prison.
The commission was not given a time frame and, by some estimates, its task could take several years. The length of time the rewrite takes will, in large part, depend on the commission's ambitions. Commissioners say they will focus first on the Criminal Code but expect their scope will expand to the Criminal Procedure and Corrections codes, as the three codes are intertwined.
Much also will depend on how much the commissioners decide to take on. Since their first meeting last June, they have disagreed over how much of the Criminal Code - sometimes used informally to refer to all three codes - to rewrite and to what extent the rewrite should reflect the state's current policy toward crime.
"Everybody agrees that a comprehensive rewrite is appropriate, but some commissioners voiced concerns that there are some areas that just don't need to be rewritten," says Cook County Assistant State's Attorney Bernard Murray, who has helped State's Attorney Richard Devine with his work on the panel. "Some commissioners feel that the way that certain crimes are listed now is fine."
So how did the state's system of crime and punishment get so complex? Lawmakers amend the Criminal Code for any number of reasons. They make changes, for example, in response to real or perceived increases in crime. In the 1970s, they created a new category of penalties for certain heinous crimes, and they recast and reinstituted the death penalty in certain circumstances. The list of those circumstances - called death-qualifying factors - has continued to grow. In the 1980s, they moved to send certain juvenile offenders to adult court, where they can face adult punishment. And they stiffened penalties for drug offenses. In the 1990s, they toughened penalties for using guns while committing crimes.
Illinois lawmakers also are subject to national policy shifts on criminal justice, including the move away from rehabilitation and toward punishment, as well as the political impulse to "get tough" on crime.
And this state has experienced its own shifts in criminal justice policy. One example is the move in 1977 from "indeterminate" to "determinate" sentencing. No longer are defendants sentenced to prison for a range of years; they are instead sentenced to a specific number of years.
Lawmakers also respond to isolated cases when making changes in the criminal statutes, as in the case of Silverstein's bill.
"You can have a situation where there's a story in the Chicago Tribune about something that occurred and a sentence was imposed - whether it's a good sentence or a bad sentence, we could argue all day long," says Thomas Appleton, a Sangamon County circuit court judge who sits on an Illinois Judicial Conference committee that once weighed rewriting the Criminal Code. "The Tribune makes a big story out of it and the next thing you know there's a bill in the legislature to make sure something like this never happens again."
So, while lawmakers may have good intentions in amending the code every year, each change nevertheless adds to the complexity of the criminal statutes. And the inconsistencies. Some in the legal community say, for instance, that the law is unclear as to when certain offenders should receive consecutive rather than concurrent sentences for separate crimes committed during the same course of conduct.
That complaint is familiar. The members of the committee that rewrote the code in 1961 remarked in a written commentary that Illinois had no Criminal Code "in the sense of a codified, systematic body of law having utility as an instrument of social control in a modern community."
"Many of the provisions are unchanged since Judge Lockwood, in submitting to the Illinois General Assembly of 1827 a revised draft of the Laws of Illinois, described the small chapter on criminal jurisprudence as having been adopted primarily from a volume of the Laws of New York of 1802, which he brought with him to Illinois, and a volume of the Laws of Georgia, which he located in the office of the Secretary of State," they wrote.
In 1934, a committee rewrote the code, according to the 1961 committee, but the General Assembly failed to adopt the committee's proposal.
Recent efforts to reform the Criminal Code have circulated for years. Sen. Carl Hawkinson, a Galesburg Republican, and Rep. Thomas Johnson, a West Chicago Republican, sponsored legislation in 1999 to create a 16-member commission to take up the task. The legislative commission would have been composed of eight legislators, eight "public" members and nonvoting advisers representing various entities concerned with criminal law.
The measure passed the Senate but died in the House - a fate that coincided with the governor's push to appoint his own panel.
Now the ball is in the governor's hands. And that's an awesome responsibility. Ryan's commission is charged with proposing both "simple and clear language and a coherent structure for the criminal statutes" and "new provisions which address the changing nature of crime."
But those tasks are not as easy as they might sound. And the biggest potential obstacle brings us back to the political process or, more particularly, to the impact of politics on the code that embodies criminal justice policy.
Once the commission delivers its proposed code to the legislature, there undoubtedly will be more hurdles to overcome. How, for example, will proponents of the rewrite convince lawmakers to vote for eliminating redundant or contradictory criminal provisions when such votes could be perceived as "going soft" on crime? Convincing lawmakers to pass substantive, policy-oriented change is likely to be even more difficult.
"People talk about it and it all sounds great in theory, but try passing any bills down here that have anything to do with reducing criminal penalties and you'll go nowhere with it," says Rep. Thomas Dart, a Chicago Democrat and chair of the House Judiciary Committee on Civil Law. "Maybe there's something that I'm missing here, but other than rearranging sections, which frankly a clerk can take care of, I don't see substantive changes going anywhere."
And there's more. The governor's decision not to include lawmakers on the 33-member commission certainly won't help a rewrite proposal's prospects in the legislature. It could be subject to greater political attack as lawmakers won't have any "ownership interest" in it.
"The only comment that I'm going to make about the rewrite is that there are no legislators on the commission," says Hawkinson, chair of the Senate Judiciary Committee. "And I think that's a mistake because without legislative input from the four [partisan leadership] caucuses, the chances of anything being enacted into law are substantially diminished."
In any event, Matthew Bettenhausen, the commission's chairman, says he will seek input from lawmakers and he expects the commission's proposed rewrite to be politically feasible.
The commission's task is both technical and substantive in nature. On the one hand, commissioners must decide how much of the code's language to replace. On the other hand, they must decide what the state's policy toward crime should be. Both tasks have proved to be controversial.
Many commissioners, who are full-time practitioners, believe the rewrite should closely parallel existing law. They say lawmakers aren't likely to agree to vast changes in provisions they debated and approved over the years. "We are not a committee of the legislature," says DuPage County State's Attorney Joseph Birkett, a commissioner. "We're a commission appointed by the governor to revise or recommend revisions. We don't have the power to draft or recommend legislation as a committee of the legislature does."
Yet commission reporter Paul Robinson is proceeding with a full rewrite of the code, from the top down. At the commission's November meeting, Robinson, a Northwestern Law School professor, presented commissioners with drafts of four proposed articles that adopted entirely new language, including terms, definitions and section numbers. The draft articles - theft, property damage, burglary and invasion of privacy - eliminated provisions from current law deemed redundant by Robinson and his staff. The articles also adjusted disproportional penalties.
Some commissioners say they object to that wholesale exchange of language. They believe the commission should take a more cautious approach to restructuring offenses and penalties - redundant or disproportional as they may be.
Robinson, who has experience drafting criminal codes in other states, says he's just doing what he was hired to do. "If they're just going to fiddle around the margins, they don't need me," he says.
And Bettenhausen, deputy governor for criminal justice and public safety, says Robinson is proceeding consistent with the governor's order. The governor, he says, wants a "comprehensive" rewrite.
In fact, Rep. Johnson calls the rewrite a golden opportunity to revisit such policy positions as mandatory minimum sentences for certain drug offenders. "We can't put a bill in saying we do away with mandatory minimums because then you're [perceived as] politically soft on crime," Johnson says. "The key here is with the rewrite you can reform some of these draconian situations and get a lot smarter with what we're doing with the different segments of the criminal population. Then you're bringing back an entire progressive code to the General Assembly which you could pass. And the politics of it is everybody has got cover because you're voting for good government."
And he's not the only one to suggest the state should rethink such penalties. Donald Snyder, director of the state Department of Corrections, has complained that Illinois' prison system simply doesn't have room for all the drug offenders.
There are more than 8,900 inmates serving time in the state's prison system for felony drug offenses, according to a corrections spokesman. Snyder said in an interview last year there were about 400 such offenders incarcerated in 1986. He said that instead of spending $18,000 a year (the cost is now $18,500 a year) to incarcerate these prisoners, "they should be in some community-based treatment program."
"There are violent individuals that never should be free, never should be back on the street. They're very, very dangerous people," Snyder told Illinois Tax Facts, a newsletter published by the Taxpayers' Federation of Illinois. "But I think we need to educate the public that not everybody that offends us should be locked up for long periods of time, that people do have treatment problems, drug problems, that people do make mistakes, and we need to spend our dollars more wisely."
As with any statutory changes recommended by the governor's panel, changing the penalties for drug offenses would have to be approved by the legislature. And, as Snyder acknowledged, convincing the legislature to restructure penalties for drug offenders - or penalties for any offense, for that matter - would be a tough sell.
In the meantime, lawmakers are moving on: They introduced 230 bills this year to amend the Criminal Code, the Code of Criminal Procedure and the Unified Code of Corrections. Among them is one designed to crack down on gang activity by requiring stiffer penalties for gang members who commit crime. There's another to make felons out of people who have sex with animals, and yet another to return to juvenile court some juvenile offenders who were moved to adult court under automatic transfer laws.