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March 28, 2022
Varying perspectives on Illinois's new prosecutor-initiated resentencing law
A helpful colleague made sure I did not miss some notable recent stories about the implementation of Illinois's new prosecutor-initiated resentencing law (and some noable resistance thereto). Here are headlines and links:
From Injustice Watch, "Man walks out of prison 28 years early — with the help of a prosecutor"
From the Chicago Sun-Times, "Judge questions constitutionality of resentencing law as prosecutors ask him to reconsider case of convicted burglar"
From the Chicago Tribune, "Questions remain as resentencing initiative championed by Kim Foxx is slow out of the gate in Cook County"
Here is the start of the Tribune piece that highlights just some of the terms of the Illinois resentencing debate:
Cook County prosecutors’ new effort to reduce sentences for some longtime inmates — hailed by State’s Attorney Kim Foxx and other reform advocates as a way to right the wrongs of the tough-on-crime era — will have an uphill climb before some judges, if its first week in court is any indication.
Associate Judge Stanley Sacks sat on the bench with a scowl Thursday as prosecutors presented their request to resentence Charles Miles, who was given a total of 25 years in two burglary cases. “I’ve been doing this for 30-plus years. I make up my own mind, not Gov. (J.B.) Pritzker, not Kimberly Foxx, either,” he said.
Miles is one of three people initially identified by prosecutors as a candidate for resentencing under a new state law allowing prosecutors to proactively request more lenient sentences for people, though the ultimate decision is still up to a judge.
On the bench Thursday, Sacks insisted he had not yet made any decisions about whether Miles deserved a new sentence and said he would not weigh in on the statute’s constitutionality.
But he could not disguise his contempt for the idea in general. He repeatedly questioned why Miles had a pro bono attorney in the courtroom if prosecutors were also advocating for his release, and wondered openly if he had jurisdiction to determine a new sentence. “It’s constitutional? Takes away the governor’s only right? What he does is resentence people through clemency,” Sacks said. “Isn’t that something for the governor to do?”
“That’s one avenue, but that’s mercy. There’s also justice,” said Assistant State’s Attorney Nancy Adduci, who explained the new law simply “re-vest(s) jurisdiction” back to the courts so a judge can consider a new sentence.
March 28, 2022 at 09:56 AM | Permalink
Comments
We can either have a determinate sentencing system with reasonable finality, or we can have a second look system in which the sentence indefinitely remains up for grabs. I prefer the former, which we enacted in the SRA of 1984 with big bi-partisan majorities. But there are reasonable arguments for the latter. If we are to have the latter, however, the second look should be a wide-angle view, not a myopic one that looks only to decrease the sentence. If, as we are so often told by liberals, incarceration makes inmates more criminally inclined not less, then, if we decrease sentences for those who've gotten demonstrably better and less dangerous, we should increase sentences for those who've gotten demonstrably worse and more dangerous.
Posted by: Bill Otis | Mar 28, 2022 2:53:10 PM
Hi Bill - I don’t think your proposal to extend sentences based on “dangerousness” concerns would be constitutional but I applaud the efforts of the prosecutors here. A fair sentencing system must allow people to grow and learn from their mistakes and more and more people are realizing that and making adjustments accordingly. I would cap sentences for all offenses at no more than 20-25 years (exceptions being serial killers and terrorists) so that we can reduce prison costs while also recognizing that some people do not need lifetime imprisonment. I applaud prosecutors who recognize that people evolve and who attempt to seek solutions to crime that do not include incarceration. Brett Miler
Posted by: Brett Miler | Mar 28, 2022 3:37:57 PM
I think any reduction should be based on demonstrated, significant good deeds.
In regards to Bill Otis' concern, one imagines that "getting worse" would likely involve new crimes?
I could certainly see a system where you are sentenced to "X to Y" years, meaning that after X years, you are evaluated. I imagine this would only be done for long sentences.
Posted by: William C Jockusch | Mar 28, 2022 3:55:40 PM
Brett Miller --
There are two ways to avoid the constitutional issue. One is by statute or court rule to maintain the court's jurisdiction over the sentence rather than have jurisdiction end the day sentence is pronounced. The second (which won't work in all cases but will work in 95% of them) is to have a provision in the plea agreement whereby the government waives its rights to finality of judgment and the defendant in exchange waives his double jeopardy right not to have punishment increased post facto. That way, the court later on could either increase or decrease the sentence, depending on what a "second look" at the defendant's continuing behavior discloses.
P.S. The fact that people "can" evolve doesn't tell you that they will, and still less does it tell you what direction the evolution, if any, will take.
Posted by: Bill Otis | Mar 28, 2022 3:57:19 PM
Hi Bill -
Your P.S. comment seems to me to be evidence of your basic pessimism regarding people which influences your posts on criminal law - your fear that more crime will result if sentences are lowered and that most people are incapable of changing. We should recognize that the forces that may lead one to a life of crime are not of the individuals own making and we should try to accomodate that as much as possible.
Brett Miler
Posted by: Brett Miler | Mar 28, 2022 6:27:02 PM
Brett Miller --
My P.S. comment was this: "The fact that people 'can' evolve doesn't tell you that they will, and still less does it tell you what direction the evolution, if any, will take."
That's just a straight statement of fact, and I would note one with which you do not disagree (as no sensible person would). If we're going to do second look sentencing, it's going to have to be one case at a time, in which we make no assumptions, pessimistic or optimistic, and, as Mr. Jockusch says, just look at the factual record. Sometimes it will support more incarceration and sometimes less.
Posted by: Bill Otis | Mar 28, 2022 6:43:52 PM
For the record, Bill, we do consistently "increase sentences for those who've gotten demonstrably worse and more dangerous."
Every US sentencing system includes significant sentence enhancements for criminal history (both formal and informal) even though a defendant has often "finished" his punishment for crime 1 when being sentenced for crime 2. In addition, inmates and probationers and those otherwise subject to community supervision regularly get subject to all sorts of additional punishments for misbehavior, even when the behavior is non-criminal and just involves so-called "technical" violations. (EG, in the Hawkins case that Senator Hawley stressed last week, the defendant apparently got an additional 6 months in prison as a supervised release violation for looking at lawful adult porn.) And sex offenders can sometimes be subject to decades of prison simply for failing to keep their registration up-to-date.
There is, in other words, functionally little "finality" to limit enhancements of all sorts when an individual fails to follow all the rules after being sentenced; that talk only tends to come out to limit efforts to reconsider already-lengthy sentences. Those who endorse consistency, as you suggest, should be fans of second-look efforts.
And, as I noted in an article some time ago, each Article in the main text of the Constitution "can be read to suggest the Framers were decidedly eager to provide or preserve opportunities for defendants to seek review and reconsideration of their treatment by government authorities":
Article I, Section 9 instructs Congress that the “Privilege of the Writ of Habeas Corpus shall not be suspended,” Article II, Section 2 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States,” and Article III,
Section 2 provides that the Supreme Court “shall have appellate Jurisdiction.”
As I put it: "These provisions codify in our nation’s charter all the traditional mechanisms long used by individuals to challenge or seek modification of the exercise of government power through criminal justice systems."
Re-Balancing Fitness, Fairness, and Finality for Sentences
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2432092
Posted by: Doug B. | Mar 28, 2022 8:03:09 PM
Doug --
You and I are talking about two different things. You're talking mostly about getting a tougher sentence if you're a repeat customer or a career criminal, which makes eminent sense and which every jurisdiction I ever heard of does.
I'm talking about "second look sentencing" as it has routinely been presented up to now, to wit (for one example), Mr.X gets 25 years for armed bank robbery; 10 years later he's shown maturity, contrition and uniform good behavior in prison; therefore shouldn't the system take a "second look" to see if it makes sense to let him out early?
As I said, like the big majority of the 1984 Congress, I favor determinate sentencing over second-look sentencing, even while acknowledging that second look sentencing has an element of appeal. The appeal is simply that people can and sometimes do change while incarcerated. So my version of second look sentencing, if that's what we're going to have, is indeed to have a second look, but not to artificially limit it to looking only at the prisoner's positives. Instead, a second look sentencing system should use its flexibility to its highest end, that is, to reduce sentences for those who have demonstrated a small to non-existent likelihood of committing more crime, but to increase sentences when the inmate's behavior (fights, weapons, drugs, continued gang participation, etc.) shows that he's even more dangerous than when he got his initial sentence, and therefore that protecting the next victim counsels adding time rather than subtracting it.
You have often insisted that prison is "criminogenic," i.e., that it produces more crime not less. If that is true, then a sensible and even-handed second look system could not operate ONLY to produce sliced sentences. It would have to account for the fact that the public may need MORE protection from Mr. X than was originally thought.
Posted by: Bill Otis | Mar 28, 2022 10:44:48 PM
Bill, if you think about it, recidivism enhancements amount to (often lots of) additional punishment for committing a second crime after a first crime. That is one major and obvious way that our existing sentencing systems "increase sentences for those who've gotten demonstrably worse and more dangerous."
In addition, when a person in prison gets involved with "fights, weapons, drugs, continued gang participation, etc," they will frequently lose privileges and release credits that they can otherwise earn from just sitting in their cells. That is another way our existing sentencing systems "increase sentences for those who've gotten demonstrably worse and more dangerous."
In addition, when placed on probation or other forms of community supervision, persons who fail to call in at an appointed time, or who visit with the wrong people, or who miss a day at work, or who might possess a gun for self protection or use medical marijuana, can be threatened with or subject to an added period of imprisonment. That is another way our existing sentencing systems "increase sentences for those who've [perhaps] gotten demonstrably worse and more dangerous."
In all these cases, Mr X gets 6 months for a low-level drug possession charge. But, then, after another drug possession charge or having a cell phone in the jail or after release and not showing up to a meeting, Mr X now gets an additional 12 or 18 months, even though his subsequent behavior is perhaps not even on par with the original offenses.
In other words, we are doing "second looks" to aggravate sentences ALL THE TIME, really 24/7, because every problematic behavior is part of a record to compound punishment (and also will be used to seek to defeat any effort at any stage to reduce punishment).
Oh yeah, we have not even discussed sex offender civil commitment AFTER the completion of lawful punishment which serves as yet another way existing laws functionally "increase sentences for those who've gotten demonstrably worse and more dangerous." [Though often in this setting the initial crime is considered sufficient for civil commitment.]
In short, many laws in form and function led to additional punishment for those who behave poorly after initial sentencing. For some balance and to serve various other ends, it is useful to have some laws that can reward those who behave particularly well after initial sentencing.
That all said, if we brought parole back to the federal system as I have urged, we might well create presumptions in which the "average" prisoner serves only, say 75% of the time given initially while the "good" prisoner can get that down to 50% and the "bad" prisoner ends up serving 100%. Will you help me draft the bill?
Posted by: Doug B. | Mar 28, 2022 11:19:56 PM
Doug --
Here's the bill I'll help draft: "The mandatory character of the Federal Sentencing Guidelines is hereby restored, provided, however, that any fact that would take a sentence above the statutory maximum must be proved to a jury beyond a reasonable doubt unless the parties agree otherwise."
Indeed, I think I just drafted the whole deal. And it satisfies Booker.
Like the fat, bi-partisan majority in Congress in 1984, I want determinate sentencing, truth in sentencing, no backdoor maneuvering with the parole board, and a reasonable degree of finality (although there's always the unlimited wild card of executive clemency, including the corrupt kind used by, among others, Clinton and Trump).
I might feel differently if the determinate sentencing system were a failure, and parole were trustworthy, but that's not the world we have. Crime was much, much lower 30 years AFTER the SRA was adopted than it was at the time it was being considered, and we have heard one horror story after the next about how early release (whether called parole or something else) based on some psychologist's blunder (or lying) gets innocent people killed. No thanks.
Everything in life, and in making public policy, is a trade-off, in which close value judgments cannot be escaped. My value judgments will continue to favor the crime victim -- the man or woman (or boy or girl) who never had a choice -- over the criminal who had plenty of choice, and if he had more empathy and more of a conscience would have made a different one.
His fate is not everybody else's fault. First and foremost, it's his. Our policies should reflect this fact.
Posted by: Bill Otis | Mar 29, 2022 1:19:12 AM
@Bill Otis: Do you think the SRA of 1984 would attract the same support --- in either party --- if it came to Congress today as a new proposal?
Posted by: Marc Shepherd | Mar 29, 2022 7:36:14 AM
Bill, I assume you mean with this draft text that EVERY guideline factor that increases the sentencing range --- BOTH the offense level increases and criminal history increases --- have to be proven to a jury BRD absent a defense waiver/plea. Notably, the Justice Departments under multiple Prez of both parties have yet to urge such a reform because, I surmise, they do not like the idea of having to comply with 5th/6th Amendment rights for all guideline range enhancements. Indeed, the Bush Justice Department could have urged and started applying this approach right after Blakely to preserve mandatory guidelines, but they advocated in lower courts and in the Supreme Court for the advisory system that SCOTUS embraced (with a majority vote from GOP Justices). That advisory system has now persisted for 17+ years (when Congress has been more controlled by the GOP and longer, now, than the unconstitutional mandatory system in place from 1989 to 2004).
Notably, FBI index crimes hit their modern peak in 1991, about 7 years after the enactment of the SRA and they hit their nadir in 2014 (or 2019 if you focus on property crimes), about a decade or more after Blakely/Booker gave us advisory federal guidelines. (Indeed, the helpful website listing crime rates in the US through the years shows that murder rates, violent crime rates, property crime rates were all consistently higher in the period from 1989 to 2004 than from 2005 to 2019: https://www.disastercenter.com/crime/uscrime.htm)
And, of course, the federal prison system only processes less than 10% of all felonies prosecuted nationwide and houses only about 10% of all prisoners. Also, about 60% prosecuted in the federal system are subject to immigration and/or drug charges that lack a typical "crime victim" that you claim you "favor." (And less than 2% of all imprisoned violent criminals are locked up in the federal system according to the "Whole Pie" data: https://www.prisonpolicy.org/reports/pie2022.html)
But, Bill, one should never let facts get in the way of beliefs about federal sentencing law and policy.
Posted by: Doug B. | Mar 29, 2022 8:21:56 AM
I always understood that the Sentencing Guidelines were meant to codify the typical sentences meted out by average judges. In other words, they were meant to rein in the overly harsh judges too, not just the lenient ones.
Posted by: Marc Shepherd | Mar 29, 2022 1:11:16 PM
Bill - there you go again - saying that a defendant’s fate is not “everyone else’s fault” and scolding for not having “empathy” or a “conscience” without realizing that one can not develop those things later in life - they are usually formed by a child is 6 or 7 and if someone does not have those things it may not be all of their doing. I wish you would be more empathetic and less judgmental toward those who turn to crime. Brett Miler
Posted by: Brett Miler | Mar 29, 2022 1:23:33 PM
For lots of reasons, Marc, the existing federal sentencing guidelines have long been much harsher than was average judicial practice both before and during the guidelines era. If the guidelines were regularly amended downward to reflect the fact that average sentences are often 25 to 50% below guideline levels, we might get to balanced guidelines. But that has never happened, and the bulk of guideline amendments for 30 years served to increase ranges, not lower them.
Posted by: Doug B. | Mar 29, 2022 1:37:08 PM
Marc Shepherd (cc: Doug) --
"I always understood that the Sentencing Guidelines were meant to codify the typical sentences meted out by average judges."
Correct. I was there (DOJ) at the inception (the early to mid-eighties). We know that the Guidelines would be a hard sell to the lower judiciary, which was used to unfettered discretion (which in fact they were -- most of the district courts ruled against them before we decided to petition for early cert in Mistretta, where we won 8-1 supporting their validity). In order to reduce the intensity of the expected lower court resistance, the Guidelines ranges were intentionally modeled on the sentences that were typically being handed out. There was still plenty of opposition, but less than there would have been if we had tried to jack them up.
Posted by: Bill Otis | Mar 29, 2022 2:36:23 PM
Brett Miller --
"Bill - there you go again - saying that a defendant’s fate is not “everyone else’s fault” and scolding for not having “empathy” or a “conscience” without realizing that one can not develop those things later in life..."
You might want to check that with the second-look sentencing crowd, which routinely and loudly says exactly the opposite. According to their view, one of the main reasons long sentences ought not to be imposed is that people committing crimes in their 20's and 30's can and do change for the better, so it's stupid and inhumane to just "throw them away."
"I wish you would be more empathetic and less judgmental toward those who turn to crime."
I wish you would be more realistic about crime and criminals, and pay more attention to the damage they do to their victims, who are also human beings. Still -- and this bears repeating -- neither your attitude nor mine is the problem. We are mere commenters on a blog. The problem lies with those who think belting Grandma with a tire iron to get her purse is easier and quicker than getting a job.
Posted by: Bill Otis | Mar 29, 2022 2:46:36 PM
Marc Shepherd --
"Do you think the SRA of 1984 would attract the same support --- in either party --- if it came to Congress today as a new proposal?"
I have no way of knowing that despite (as Doug often points out) my bevy of Big Shot friends at Georgetown cocktail parties. If I had to take a guess, I would say support now would be less, but with three caveats.
First, it could be a good deal less and still pass Congress. It had big margins at the time.
Second, the SRA came about after a generation long, massive crime wave. Even liberals had pretty much had enough. The crime picture now is overall not as stark, despite the grotesque surge in murder and overdose deaths.
Third, never discount the tenacity, funding or dishonesty of the pro-crime groups, whose persistence is truly amazing. They now all but own the Democratic Party (which is why Biden now says he opposes the DP after decades of supporting it) and have made some inroads with the Republicans. Neither trend had that much strength 40 years ago.
Posted by: Bill Otis | Mar 29, 2022 3:15:13 PM
@Bill Otis: I agree...the SRA would have less support today in both parties if it were a new proposal. But it does make one wonder if “passed overwhelmingly 40 years ago” is such a strong argument in its favor. Are ideas that seemed good at the time ever allowed to change based on experience?
Justice Scalia thought the SRA was unconstitutional. I suspect Justices Thomas and Gorsuch, and perhaps others, would have joined his opinion in Mistretta if they had been around at the time. Perhaps his Mistretta opinion would even be the majority view today. Scalia eventually got half of what he wanted when the mandatory Guidelines were found unconstitutional. So, the SRA as passed is now just a neutered shell of what it was meant to be.
And to the extent the Guidelines have value, the USSC has been unable to function for over three years, due to the lack of a quorum. What a system!
Posted by: Marc Shepherd | Mar 29, 2022 3:59:50 PM
Marc Shepherd --
"... it does make one wonder if “passed overwhelmingly 40 years ago” is such a strong argument in its favor. Are ideas that seemed good at the time ever allowed to change based on experience?"
Oh for sure. That's why George Gascon in LA and Chesa Boudin in SF are in trouble in their recall races.
"Justice Scalia thought the SRA was unconstitutional."
That is true, but not because he opposed determinate sentencing or limiting judicial discretion. He thought the structural makeup of the Commission impermissibly blurred the separation of powers. Besides, from what I'm hearing from liberals about Roe, Mistretta should be re-affirmed simply because it's precedent.
"So, the SRA as passed is now just a neutered shell of what it was meant to be."
This is largely true (which is why fretting about how tough the guidelines allegedly are is bunk). However, they could be restored to their former power by having juries decide BRD any fact that takes the sentence above a statutory maximum. The USSC and Congress could and should fix that.
"And to the extent the Guidelines have value, the USSC has been unable to function for over three years, due to the lack of a quorum."
We're singing the same song. Judge Bill Pryor and I had some plans, but when the bi-partisan slate of USSC Commissioners put forward by the last administration (which included two other judges) didn't make it to the Senate floor for a vote, the Commission's continued existence in limbo-land was assured for God knows how long.
Posted by: Bill Otis | Mar 29, 2022 4:26:17 PM
