VII. Sentencing Retroactivity
In his first month in office in 2015, Governor Bruce Rauner issued an executive order creating the bipartisan Illinois State Commission on Criminal Justice and Sentencing Reform, which is comprised of leaders from the law enforcement, public service, academia and the General Assembly. The Commission was directed to reduce Illinois prison population 25% by 2025 and delivered 27 actionable recommendations.
With an Illinois prison population still over 42,500 people, many advocates argue that reforms that seek to achieve serious reductions to prison population must include both changes to sentencing law that affect the pipeline of those coming in, but also must explore retroactive reductions in sentences for those already in prison. Many of these individuals were sentenced under now abandoned, so-called “tough-on-crime” policies that have been rejected by the modern approach to criminal justice and that the “tough-on-crime” policies produced detrimental social and safety outcomes.
Despite a diverse group of states such as Louisiana, Colorado and Maryland passing retroactive sentencing reforms in the past few years, the current Attorney General has declined to opine on their legality in Illinois, which has blocked legislative retroactive sentencing reforms.
Do you agree with the need to achieve the goal of reducing the prison population 25% by 2025 as outlined by the Governor and his commission? How can this reduction be achieved safely?
What is your opinion on the legality of retroactive sentencing reforms?
The Illinois Criminal Code defines the responsibility of the Attorney General to include giving legal or constitutional opinions on issues relating to criminal law. If elected, would you be willing to issue an official legal opinion supporting the legality of passing laws which address retroactive sentencing?
I agree with the goal of reducing the prison population 25% by 2025. This reduction can be achieved safely by expanding the use of problem-solving courts (including drug courts and mental health courts), providing educational and vocational opportunities to those who are incarcerated, streamlining and enhancing reentry services (including mental health services, access to affordable housing and transportation, job-training services, and assistance in securing employment), and ensuring that sentencing reforms enacted by the General Assembly are applied retroactively when appropriate.
If the General Assembly expressly provides that a specified sentencing reform is to be applied retroactively and then outlines a process and set of criteria by which an incarcerated person may apply for and be evaluated by a judge for such retroactive application, then a Court likely would find retroactive sentencing reforms—both on their face and as-applied—to be Constitutional.
If either branch of the General Assembly (or any committee thereof) requests an opinion regarding the constitutionality of potential retroactive sentencing reforms, then I would issue such an opinion. Moreover, I would be willing to work with the General Assembly to draft retroactive sentencing reform legislation that would be more likely to be upheld as Constitutional.
Yes, and it can be achieved only through a data-driven focus on identifying those incarcerated who are most likely to succeed in the community and not re-offend, and the on providing them with the assistance most likely to help them achieve this goal. This will require a budgetary commitment and a wholesale change in approach; state government cannot continue to view a decrease in prison population primarily as a cost-saving measure, at least in the short term, because reducing the total cost of correctional facilities and programs will only backfire – to the detriment of public safety – if the recidivism rate climbs through an inattention to community reentry services.
There are many potential approaches to sentencing reform (e.g., removal of mandatory minimums, changes in sentencing ranges or guidelines and changes to parole eligibility or guidelines among others), and addressing the legality and constitutionality of each approach if applied retroactively would require a thorough analysis and review of case law. I support the steps the federal government has made toward retroactive sentencing reform in the case of crack cocaine convictions, and I believe there are ways to legally bring retroactive sentencing and parole modifications to Illinois so as to reduce unnecessary incarceration.
Yes. The Attorney General’s responsibility to issue legal opinions in response to requests by the governor or General Assembly is broad, and I will not hesitate to utilize the best minds in my office to provide a thorough answer on this or any other question of criminal law.