Consensus Questions 11a through 11g relates to Sentencing Laws and Procedures. The current League of Women Voters of Illinois position is stated below, followed by the updated consensus study questions on this topic.

Existing Position:

• The League believes that judges should retain the discretion to choose between imprisonment and probation for most offenses and opposes the proliferation on non-probational offenses.

• The League believes that there should be strict penalties and enforcement for all crimes committed with a handgun or an assault weapon (see LWVIL Gun Violence Prevention position).

• The League supports reduction in time served as an incentive for good conduct by inmates. Such credits should be incorporated into the sentencing structure and should not be revoked without due process.

• The League believes that a body, free from political influence, should make recommendations that promote certainty and fairness in sentencing, develop guidelines that provide greater uniformity and monitor the fiscal impact and effect on prison populations.

  Consensus Questions:

  11a. Should we delete from existing position: “The League believes that there should be strict penalties and enforcement for all crimes committed with a handgun or an assault weapon.”

  PRO: Sentencing for a crime should be based on the actual crime, circumstances, and outcomes and not be dependent on the type of weapon used. In the Illinois State Commission on Criminal Justice and Sentencing Reform Final Report, there are numerous recommendations to decrease all mandatory sentences and “removing or reducing the automatic enhancement for possessing a firearm during any felony crime.” According to The National Institute of Justice in its report Five Things about Deterrence, it states that increasing the severity of punishment does little to deter crime. In Evidence-based practices and best practices, it states that the anger and fear that gun violence provokes should not lead to harsher penalties, which are politically expedient, but not proven to address the underlying causes of the violence.

  CON: The LWVIL’s current position on Gun Violence Prevention states, “The League advocates restricting access to automatic and semi-automatic assault type weapons. These weapons present a clear and unequivocal danger to public safety.” Therefore, there should be strict penalties for a crime committed with a hand gun or assault weapon. There is more certainty of being killed with a gun rather than another weapon. NOTE: This is a very weak CON. The Gun Violence Prevention position does not mention sentencing at all. Harsher sentences do nothing to curb the manufacture and sale of guns. We aren’t punishing the weapon or the weapon’s maker and seller by putting them in jail, are we? Also, the sentences are harsh regardless of whether a death occurs.

  Should we revise the position based on consensus regarding the following questions (11b-11g)?

11b. Should evidence-based practices and best practices guide sentencing laws and prosecutorial decision-making?

PRO: In the 25 years since the League position was last reviewed, the population of the state's and country's jail and prison populations have grown to millions and cost the states and country billions. Published studies demonstrate that the current practices are not effective and many times harmful. In Evidence-based practices and best practices it states that evidence-based practices are approaches that have been empirically researched and proven to have measurable positive outcomes.

Additionally, Professor David Olson, PhD. Loyola University, Department of Criminal Justice and Criminology, in his June 7, 2019, presentation stated that policies and practices should truly address the problem; and practitioners and policy makers need to implement evidence-based strategies to use what works and improve outcomes for all stakeholders.

CON: Sentences are set by statute to dissuade and punish crimes. The legislature proscribes certain conduct, sets sanctions and rules under which the system operates.

11c. Should sentencing take into consideration the public health issues involved in any crime committed?

PRO: The first recommendation of the Final Report of CJSR (Exec. Summary, p. 1) is increasing rehabilitative service and treatment capacity in high-need communities with the highest priority to behavioral health/trauma services. In Building a Safe Chicago (https://news.law.northwestern.edu/108), the first core component of a comprehensive plan to address root causes of violence is to “Put Public Health First.” Public Health strategies include violence prevention, family support, and strategies dealing with trauma and the consequences of violence. Public health includes mental health and extends to the family and community impacted.

CON: Public health is too broad of a term; the issue of sentencing may consider mental health specifically

11d. Should there be more collaboration between stakeholders so that sentencing outcomes are more just and fair?

PRO: Collaborating with different stakeholders, including victims, accused, prosecutor, defense attorney, judge and probation services, has been shown to produce better justice outcomes. Examples of collaboration already exist in problem-solving courts, where teams come together to improve outcomes for the defendant, victim, and community. The Final Report of CJSR (p. 26) recommends Criminal Justice Coordinating Councils, which is another collaborative approach to improve justice and public safety and reduce criminal justice costs.

CON: An increase in collaboration may increase the time involved in getting to a sentence. Additional parties may confuse or distract from the issues involved. Our adversarial system guards against collaboration and/or collusion that may not lead to just outcomes.

11e. Should racial impact statements inform any new criminal law or regulation?

PRO: The premise behind racial impact statements is similar to fiscal or environmental impact statements that are required and considered responsible mechanisms of government. The goal of these statements is to determine possible unintended consequences of new laws.

A significant negative impact is the outcomes of mandatory minimum sentences for crack and powder cocaine, which are pharmacologically alike, yet more severe sentences were put into effect for crack cocaine. Crack cocaine was sold in cheaper amounts than powder form and severely impacted impoverished inner-city African American neighborhoods, who suffered more severe sentences.

CON: All laws should treat defendants equally already. A new regulation is not required. Justice should be blind.

11f. Should legislation that reduces penalties for a crime also benefit those previously convicted and sentenced for that crime?

PRO: Severe sentences have not shown to improve public safety and/or deter crime. Additionally, the cost to society is severe fiscally and community wide, with detrimental impacts on families and loss of human capital in society. According to the Final Report of CJSR, the fiscal cost to the state in 2015 to annually incarcerate one prisoner is greater than $37,000. In 2020, the cost estimate to the state on criminal justice is over $1.4 billion. Research has shown that many sentences are so long that defendants age out of criminal activity. When legislation changes, all those charged and imprisoned due to that crime should benefit from the shortened sentence in order to decrease costs and treat people humanely.

Sentencing retroactivity refers to allowing individuals sentenced under earlier and harsher laws to benefit from newer sentencing laws. The opinion piece cited below, Thousands are stuck in prison—just because of the date they were sentenced, illustrates the need for sentencing retroactivity:

“On Aug.2, 2010, [Eugene] Downs was sentenced to a mandatory minimum sentence of 10 years for conspiring to distribute at least 50 grams of crack cocaine. The very next day, President Barack Obama signed the Fair Sentencing Act, a law that limited mandatory minimum sentences for crack cocaine and the number of cases subject to them.

“If Downs had been sentenced one day later, he would now be free, because the Fair Sentencing Act reduced the sentence for distribution of 50 grams of crack cocaine to five years. Incidentally, Downs' co-defendants were all sentenced after Aug. 2 and benefited from the lowered penalties.”

In January 2018, the U.S. Court of Appeals for the 6th Circuit ruled that because the Fair Sentencing Act contained no provision for retroactivity, there was nothing that could be done to help Downs.

CON: If someone is convicted of a crime, particularly by a jury, then that person should serve out that sentence even if the law gets changed. You do the crime; you serve the time.

11g. Should the charge of felony murder be abolished?

PRO: The United States is one of the last “major, modern countries” to still enforce felony murder rules. The felony murder rule can lead to murder charges for people with little or no involvement in the death, such as the getaway driver. The felony murder charge disproportionately impacts youthful offenders who many times act in groups. The felony murder charge assumes that an individual or group involved in committing a crime that ends in a death should have known that death could be a consequence and all are equally culpable for the death. As the recent science shows, "emerging adults” (ages 18-25) are still maturing developmentally and areas of the brain that control judgement, reasoning, and impulse control are not fully developed. This group is more influenced by group and peer pressure and many times make poor decisions which result in poor outcomes. In many cases, a charge of felony murder will result in extreme prisons sentences, including life without parole.

CON: Felony murder is a charge that can be levied on a defendant to punish that person or their co- defendants involved in a crime that results in someone’s death. If someone is involved in a crime, even if that person was just the driver of the getaway car, that person should have understood the risk and suffer the consequences. The felony murder charge assumes that an individual or group involved in committing a crime that ends in a death should have known that death could be a consequence and all are equally culpable for the death. Those people often are involved in gangs.

ADDITIONAL RESOURCES:
PRO
Race in America - Fighting for Justice, Bryan Stevenson https://www.washingtonpost.com/washington-post-live/2020/10/01/race-amer... with-bryan-stevenson/#comments-wrapper

"Criminal Justice: Sentencing and Incarceration" with David Olson, Thursday, November 12, at 7:00 p.m. Sponsored by Palatine League.

Video: https://www.youtube.com/watch?v=PdN_uQIU9Jw&feature=youtu.be

PowerPoint slides:

https://www.lwvpalatinearea.org/uploads/2/1/7/6/21764682/criminal_justic... 20.pdf.

AMERICA’S OTHER EPIDEMIC, Story by Beth Macy in The Atlantic, May 2020https://www.theatlantic.com/magazine/archive/2020/05/nikki-king-opioid-t... program/609085/

THE CASE FOR CAPPING ALL PRISON SENTENCES AT 20 YEARS, vox.com, by German Lopez @germanrlopez, german.lopez [at] vox.com Feb 12, 2019. https://www.vox.com/future-perfect/2019/2/12/18184070/maximum-prison-sen... incarceration

CON
NEW, MORE PROGRESSIVE PROSECUTORS ARE ANGERING POLICE, WHO WARN APPROACH WILL LEAD TO CHAOShttps://www.usatoday.com/story/news/nation/2020/02/08/criminal-justice-p... prosecutors-battle-overreform/4660796002/

If you would like more information on this question, please contact Di Niesman, LWV of Wheaton, at dniesmans [at] aol.com.