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QUESTION 1: These are several areas of criminal sentencing law that help fuel long-term incarceration. While the General Assembly debates these bills, the views of State’s Attorneys are always central to the discussion. That’s why we’d like to ask you for your opinion publicly since it carries so much weight with legislators. Please share your thoughts on each one of these.
Sounds good to me. I think the State’s Attorney Lobby Association has been shrouded in secrecy, and I believe that since prosecutors are the most powerful actors in the criminal justice system, State’s Attorney’s have an obligation to be transparent about their views and their values — especially when those views are being presented to the General Assembly and to the Governor.
Mandatory gun enhancements: Judges must add 15 years to the sentence of someone who possesses but does not use a firearm in the commission of a crime. In 2015, a new law made these enhancements discretionary for juveniles, but not adults. HB4376 (Ford) would make those mandatory gun enhancements discretionary for all offenders. (Do you support, oppose, or are you neutral on the bill? Thoughts welcome.)
I support the bill. We must empower our local State’s Attorneys and judges to decide how to charge and dispose of cases without mandatory minimums tying everyone’s hands. Frankly, as a criminal-law practitioner for 18 years, I’ve seen how easily mandatory minimums are manipulated by prosecutors and judges to pressure the innocent into taking unjust plea bargains. This bill would allow prosecutors to use gun enhancements when necessary to protect the public, but not smother the truth-seeking function of the courts as many mandatory minimums do.
Felony-murder rule: Illinois has a broad felony-murder statute that allows prosecution of individuals for murder in cases where they did not commit or plan to commit a murder, but committed another forcible felony that resulted in someone’s death. HB1615 (Slaughter) and SB2292 (Peters) would narrow the scope of Illinois’s felony-murder law. (Do you support, oppose, or are you neutral on the bill? Thoughts welcome.)
I support SB2292. Our felony-murder statute needs to be drastically reformed. The current statute unjustly reaches accomplices who may have no intent to do harm or who may not even know that the principal is armed. In both of those scenarios, charging felony-murder would be gravely unjust and would not protect the public. SB2292 appropriately focuses on deterring individuals from committing felonies who also have an intent to cause great bodily harm or death. It is simply “magical thinking” to believe that the felony-murder rule deters people (especially young people) from committing felonies generally. I have been on record as opposing the current manifestation of the felony murder statute since my opponent, the current Lake County State’s Attorney, improperly deployed it against five young people. Here is my statement.
Accountability: Illinois law utilizes a theory of accountability throughout its criminal statutes. This theory allows individuals to be convicted of the same, more serious crime as their co-defendant/s in an underlying felony, even if they did not directly perpetrate or plan to perpetrate the more serious crime. If convicted, people who are accountable serve the same sentence as the primary actor in the offense. (Do you think we should abolish accountability theory, narrow the usage of accountability theory, or keep accountability as is?)
In practice, we need prosecutors who recognize that while some principals and accomplices have an equal moral responsibility, many do not. First, I would be in favor of a law that requires the State to allege accountability in the charging document. I’ve been the first chair on two Armed Robberies where the State changed its theory in a closing argument. While I argued that this “bait and switch” violated due process, we need legislative reform in this area. Second, I would structure the sentencing statutes so that a sentencing judge could reduce the class of felony for an accomplice. This would be similar to the structure of the Attempt statute. Obviously, someone who has the specific intent to commit a crime may be more morally blameworthy than an accomplice. Yet our current law punishes the accomplice much more than a person (with specific intent) who attempts and fails to commit a crime.
Earned sentencing credits: A 1998 law called Truth in Sentencing reduced or removed the opportunity for incarcerated individuals to earn “time off for good behavior.” The law has led to much longer actual “time served” in Illinois prisons and has removed incentives for rehabilitation. (Do you think we should restore earned sentencing credits to pre-1998 levels, restore some earned sentencing credits, or keep sentencing credits the same? General thoughts welcome.)
We should restore this program to create incentives inside the prison system. The overly complex sentencing rules only create the possibility of mistakes by judges and lawyers. As it stands now, inside the courthouse, the parties are bargaining with advance knowledge of the rules. We should change the rules at the outset and create more incentives inside the prison for rehabilitation. Also, like mandatory minimums, truth-in-sentencing provisions are used by judges to intimidate lawyers from filing motions to suppress and to engage in trials. Without Fourth Amendment (and Fifth Amendment) motions, courts are not holding police accountable nor are they seeking the truth via trials.
Mid-sentence parole review: Illinois has true “parole for release” for only a tiny fraction of the prison population (those of any age convicted before the abolition of parole for release in 1978, and those under age 21 convicted after June 2019, pursuant to Public Act 100-1182, the Youthful Offender Parole Law). The remainder of incarcerated people in Illinois do not have access to a parole review hearing at any point in their term of incarceration. What most call parole in Illinois is a post-incarceration period of Mandatory Supervised Release, which is added to a sentence and is not a path to be released earlier than the original sentence.(Should we restore parole as a system for early release broadly, or should we continue with no general parole where the incarcerated serve the entire sentence received no matter what circumstances may have changed?)
I generally favor having trained professionals review sentences using evidence-based practices to determine whether someone can be safely released from our prison system. Having said that, as a practitioner of criminal law on a daily basis for the last 18 years, it is hard to imagine how negotiations would be affected by this rule change. Would prosecutors increase their offers and justify it based upon the possibility of the defendant receiving parole? Would hardworking, well-meaning defense attorneys “over-sell” the possibility of parole? Could a judge use this type of system to justify a prison sentence instead of a probation sentence as a way to “out-source” the supervision from the county to the State? Creating this type of uncertainty could have unintended consequences. I believe (of course) that we are relying too much on incarceration in our legal system for non-violent offenders. In other words, my concern is that this reform will inadvertently lead to more incarceration of the non-violent rather than less. But, again, from the perspective of realizing our constitutional mandate for rehabilitation, I am for this program in the broadest terms.
Abolishing life without parole sentences for all juveniles. Unlike the majority of states, current law in Illinois still allows for a juvenile to receive a life sentence without the possibility of parole, despite young people having unique ability to change. A 2019 law implemented mid-sentence parole review for most individuals convicted of serious offenses before they turned 21. HB5670 (Mayfield) would expand on that law to prohibit life without parole sentences for anyone under the age of 21 when their crime was committed. Juveniles could still serve life in prison if the Prisoner Review Board rejects their application for early release. (Do you support, oppose, or are you neutral on this bill? Thoughts welcome.)
I favor HB5670 for all the reasons that justify the new 2019 law. It is critical that State’s Attorneys fully embrace the developing scientific consensus that the brain is still developing past the age of 18.
QUESTION 2: Proactive commutations by the Governor. Our current state prison population of 36,000 remains stubbornly high, largely because Illinois abolished mid-sentence parole review in 1978; people who otherwise might have been released from prison due to rehabilitation no longer have that option. The State Constitution gives the Governor authority to commute any sentence and release any person. Today, commutation is a reactive process. An incarcerated individual must submit a petition for review to the Governor, who tasks the Prisoner Review Board with creating a private recommendation, which the Governor may or may not act upon. Given the lack of mid-sentence parole review since 1978, do you think Governor Pritzker should make the reactive commutation system more proactive to systematically consider commutations? Potential groups to consider for proactive commutation include the elderly (over 65), those who have had excellent records while in prison, or those who have demonstrated remorse and have been rehabilitated but still face decades of incarceration. (Do you think Governor Pritzker should proactively review incarcerated individuals serving long sentences and assign them to the Prisoner Review Board to determine whether their sentences ought to be commuted given their unique circumstances? Do you think he should not do that? Thoughts welcome.)
I strongly favor this reform. As I said above, I believe we need professionals reviewing sentences to determine whether someone can be safely returned to the community. This program would focus on reducing the prison population and “righting the wrongs” of sentencing mistakes in the past. For this reason, it wouldn’t have some of the drawbacks that I outlined above regarding mid-sentence parole. I do believe that survivors of crimes need to be consulted in a meaningful way for this process to maintain legitimacy.
QUESTION 3: General ideas and personal anecdotes. When you think about our criminal legal system in Illinois (from policing to prosecution to sentencing to incarceration to re-entry), what do you see as the biggest opportunities for improvements in the next two years? Please consider this an open-ended question to share any important anecdotes that inform your perspective or other ideas for reform or improvements that deserve more attention.
I started this campaign because the Lake County courthouse is not treating people fairly, not holding police and prosecutors accountable, and is not fighting to reduce crime in underserved communities. Instead, the current office is mired with personal loyalties that matter more than constitutional rights or good policy. Simply, the current office is destroying lives by over incarcerating people, failing to advocate for sufficient treatment, and by failing to protect victims in underserved communities. One of the most exciting recent trends is that the voters are realizing that they can elect reform-minded prosecutors who acknowledge the legal system’s deep flaws but who also have the energy and vision to quickly implement reform without waiting on the General Assembly or Supreme Court.
This questionnaire lists many of the important areas of reform. These important changes have one thing in common: they move the criminal-justice system back toward analyzing each defendant/suspect on an individual basis. For example, mandatory minimums prevent good people in the legal system from reaching the truth of a case, or from fashioning a sentence that takes into account the unique circumstances of each individual. Determinate sentencing prevents the prisoner from being analyzed during the rehabilitation process. We have to continue working on making sure that defendants understand the collateral consequences of criminal dispositions, and we need to constantly ensure that line prosecutors and line public defenders have the appropriate amount of time and resources to effectively represent their clients.
When you work hard everyday in a courtroom for your clients, it is easy to become discouraged about systemic reform. But times are changing. I never thought I would hear a Governor or Lieutenant Governor openly talk about bail reform and removing mandatory minimums — both of which I strongly support. The political atmosphere is finally moving from the “tough-on-crime” 1990s toward a more nuanced and complex understanding of how institutional racism and classism have destroyed the ideal of “equal justice for all.”
QUESTION 4: Voting rights while incarcerated. Should people who are incarcerated in prison be allowed to vote? Those in county jails (before they are sentenced) are allowed to vote. Vermont and Maine allow those serving a sentence in state prison to vote.
I support voting rights for those in jails. I support voting rights for those in prison since they and their families are affected by the democratic decisions of the political system.
QUESTION 5: There is an ongoing debate over whether the General Assembly has the constitutional authority to pass a law reducing criminal sentences for people already incarcerated. Those who say it’s unconstitutional believe the only two methods to modify sentences are through executive clemency, or a legal procedure called revestment, wherein the prosecution and defense agree to bring the case back before a judge. On the other hand, some argue while those are two legitimate avenues to modify existing sentences, they are not the exclusive avenues, and if the General Assembly wishes to pass a law that reduces existing sentences, the General Assembly is not constitutionally precluded from doing so. In other words, revestment is a path toward modifying existing sentences and it doesn’t preclude legislative action. Please share your opinion on whether the General Assembly has the constitutional authority to pass criminal sentencing changes that affect the currently incarcerated. (This question is particularly relevant to State’s Attorneys, as the leaders of the community of State’s Attorneys have aggressively taken the position that any bill the General Assembly considers that would potentially reduce sentences for currently incarcerated people is unconstitutional.)
I am for this reform. I assume the arguments against legislative action in this area are based on “separation of powers.” For the most part, the traditional separation of powers arguments are deployed to prevent powerful executives and unelected judges from acting without accountability. Here, a legislature, that is popularly elected every two years, would be able to reduce sentences if the Governor agreed. I simply fail to see the strength of the constitutional argument against this proposal.