JHA Testimony to Illinois State Commission on Criminal Justice and Sentencing Reform

July 27, 2015:  Testimony of the John Howard Association of Illinois to Illinois State Commission on Criminal Justice and Sentencing Reform

The John Howard Association (JHA) is Illinois’ only independent, non-partisan prison monitor. Our mission is to achieve a fair, humane, and effective criminal justice system by advocating for change in correctional policy and practices and promoting reform inside Illinois’ adult and juvenile prisons. We believe that how we run prisons, treat inmates, train and empower correctional staff, and interpret and apply constitutional standards in our prisons is not only important in how it affects prisoners and their ability to successfully reenter society – it directly impacts the lives of every Illinois resident, as we all depend upon the criminal justice system to make our communities safer and who we put in prison and why we put them there is a reflection of who we are as a society.

Illinois has long-proclaimed that the purpose of punishment is to protect the safety and welfare of the public and to reform offenders. This principle is reflected in the Illinois Constitution, which mandates that, “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” The Illinois Supreme Court summed up the equity principle underlying our notion of “just punishment” quite clearly in the 1889 case, Sykes v. Illinois, stating: “On the one hand, punishment will not be inflicted unless deserved, while, on the other hand, it will not be imposed unless for conservation of the public good.”

This principle is as relevant today as it was a century ago. The groundbreaking contemporary treatise on mass incarceration, The Growth of Incarceration in the United States: Exploring Causes and Consequences, published by the National Research Council in April 2014, recognized that four long-established democratic values must guide any discussion of criminal justice and sentencing policy: proportionality, parsimony, citizenship, and social justice. If Illinois is to embrace and uphold these core values, we will have to reconsider and fundamentally change the way that we use our prisons.

The report issued by the Illinois State Commission on Criminal Justice and Sentencing Reform (Commission) on July 1, 2015, accurately recounts how piecemeal changes in prosecution and sentencing policies over the past four decades dramatically increased our prison population leading to the crisis of over incarceration that we have today. JHA commends the Commission for its initial report, and agrees with the findings, processes, and goals articulated therein. The challenge now facing the Commission and Illinois is to take bold action to put this conceptual framework into practice. To do this, our elected officials must marshal the political will to enact necessary reforms. Maintaining the status quo of mass incarceration and failed criminal justice policies is no longer an option.

In addition to the findings and recommendations set forth by the Commission in its initial report, JHA believes that the following issues also necessitate attention by the Commission and Illinois’ lawmakers:

Existing Prison System Deficits

Inhumane and unconstitutional conditions in Illinois’ prisons cannot be effectively remedied absent a drastic reduction in our prison population. Holding inmates in substandard conditions, while depriving them of access to basic human services and rehabilitative treatment is contrary to the constitutional objective of restoring offenders (the vast majority whom return to the community) to “useful citizenship.” Improvements within the Illinois Department of Corrections (IDOC) are critical to advance reform.

First and foremost, sure and steady leadership is needed at the helm of IDOC. Additionally, lack of transparency and data collection must also be addressed, along with inefficiencies in the state hiring process that prevent the timely, effective hiring and placement of qualified prison staff. As noted by the Commission, data collection, program evaluation, and transparency have not been IDOC’s strengths. However, the agency has not had funding, staff, or technology in place to support improvement in these areas. Going forward, this must change.

IDOC needs stable, effective, and accountable leadership to implement practical changes for population reduction and initiatives that will lead to successful reentry for people leaving prison and returning to their home communities. IDOC leadership must be realistic and candid about the limits of the agency’s capacities and the resources that it needs. Effective collection and communication of information, which are necessary to evaluate the quality and efficacy of reform, will require technology upgrades and other expenditures on staff and training.

Intergovernmental collaborations also must be strengthened to ensure that information is appropriately shared to the benefit and efficiency of all agencies that touch justice-involved individuals, including Sheriffs’ Departments, the Departments of Health and Human Services, Education, Children and Family Services, and the Secretary of State. For reform to succeed, existing system breakdowns must be frankly acknowledged and remedied.

Today, without formal evaluation, we know that we need more resources in our prisons devoted to healthcare, education, and other programs that will enable people leaving Illinois prisons to lead productive lives rather than return to prison within three years, as is the case with approximately half of the people currently released. As Illinois’ only independent monitor in our prisons, we know this based on the numbers on waitlists for basic education and vocational instruction we observe at every IDOC facility, we know this because of what we see and what is reported to us by prisoners, staff, and administrators. We know that many IDOC inmates are being warehoused in sub-standard conditions for relatively short periods of time and then being released without the benefit of having received programming that gives them the tools they need to succeed and also without sufficient support in reentering society.

Illinois must also revamp the state hiring process for correctional agencies, where the inability to fill critical positions continually hampers progress. Current hiring inefficiencies are not only costly by increasing the amount of money Illinois spends on overtime pay annually; they also negatively impact the day to day operations, programming, and culture within our prisons. By eliminating unnecessary bureaucratic layers in correctional agency hiring, IDOC and individual prisons, will be better able to attract and hire employees with the necessary education and qualifications in a shorter period of time, and will improve working and living conditions within Illinois prisons. Hiring process reforms will empower IDOC to better manage its operations, implement effective programming, and allow the agency to fill vacancies in a timely manner, all of which will improve inmate outcomes and result in cost savings to the state by reducing spending on staff overtime pay.

Use of Discretion

An important and impactful way to stem the tide of mass incarceration is to limit the number of people that enter the criminal justice system. Justice system contact can be reduced through front end actors exercising more responsible use of discretion. Ensuring appropriate exercises of discretion demands greater accountability and transparency by front end system actors.

Law Enforcement Discretion

The discretion that law enforcement has in deciding whether an incident will result in an arrest, leading to charges being filed, begins the road to detention, indictment, conviction and ultimately sentencing and imprisonment. Without increasing the options available to law enforcement, developing diverse kinds of training, and fostering culture change around how these options are exercised, we leave police with only a very blunt instrument to handle situations that are often complex and multi-dimensional.

If law enforcement is provided with, and trained on, a panoply of methods, resources, and alternatives to arresting people who may be suffering from mental illness, under the influence of drugs or alcohol, or otherwise not law abiding but not violent or dangerous, many unnecessary prosecutions and prison sentences would never happen. We do not need to give every transgressor full justice system contact and need to provide alternatives.

Prosecutorial Discretion

The discretion wielded by local prosecutors in bringing charges and deciding what charges to bring, largely determines the fate of most criminal defendants. It is noteworthy that this extraordinary embodiment of power is unreviewable. For too long prosecutorial success has been based on number of convictions achieved, it is time for prosecutors to recognize themselves as system actors and contributors to over incarceration. As stewards and actors in the justice system, prosecutors should be invested in individual and community improvement and success, asking the questions; are more people charged with offenses being rehabilitated when possible, and, are our communities becoming safer and thriving? This perspective must be embraced by prosecutorial supervisors; they must lead by example in carefully reviewing cases with a lens toward fair treatment and effectiveness, as well as public safety. These principles must be taught to new and junior attorneys, who often handle minor offenses, and may lack the experience to view these incidents through a greater lens of system impact and have a gauge on the necessity of prosecuting such crimes.

Prosecutor John Chisholm, District Attorney of Milwaukee, Wisconsin, has made efforts to reduce over incarceration and its disproportionate impact on African-American communities. In a recent article discussing his work, he states, “in the U.S. legal system prosecutors may wield even more power than cops. Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or a felony; demand a prison sentence or accept probation. Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison. And prosecutors make these judgments almost entirely outside public scrutiny.” It is unclear how in the history of this country prosecutorial discretion has become so unfettered. This practice must stop, until all players in decision making roles commit to changing business as usual, the number of cases prosecuted and whether they result in an individual unnecessarily heading to prison, stemming the tide of mass incarceration will be close to impossible.

Judicial Discretion

Our laws need to be constructed so that judges have the discretion to hand down sentences that are principled, effective, and fair. Mandatory minimums and statutory limitations that impact sentencing credit availability, length of parole, opportunity for parole, as well as alternative placements must be rethought and legislated to provide judges with the opportunity to fully consider each defendant’s circumstances and the offense at hand. Criminal sentences should be tailored to each individual situation in a thoughtful way that is not hindered by legislative mandates.

Cost and Responsibility Shifting Between the State and Counties

In order to right-size IDOC’s prison population and provide alternatives to imprisonment for low level offenders, jails, probation departments, and other diversion and community based programs must be provided with the resources needed to keep populations once headed to or in IDOC out of IDOC.

Shifting the focus from costly state incarceration to local community approaches that emphasize treatment and rehabilitation makes sense from both a fiscal and public safety perspective. Allowing low level offenders to remain in their communities while receiving treatment and supervision is less costly than incarceration and less disruptive of familial, social and economic ties that are essential to offenders' rehabilitation. However, for such reforms to be effective, we must commit ourselves to investing more resources in essential community services such as housing, job training, education, drug treatment, and medical and mental health care.

In order to realize the goal of rehabilitating offenders and thereby strengthening the communities in which they live or will return to upon release from prison, we must recognize the collateral consequences that impact a person’s life simply by having a felony record and/or serving time in prison. Although collateral consequences are not formally part of the sentence handed down by a judge, they are no less punitive. These consequences include barriers to housing, education, and employment, and ineligibility for public benefits. These are real costs incurred by individuals and their communities due to incarceration. Such collateral consequences should be curtailed and more community supports put in place to promote success and prevent recidivism.

Meaningful criminal justice and prison reform and significant cost savings cannot be accomplished without comprehensively addressing deficiencies that exist at every stage of our criminal justice system – from arrest, charging and sentencing, through the conditions of incarceration, and reentry into society. There are no quick, easy, or inexpensive ways to fix our broken system, but there are workable solutions that can have meaningful impact. We must examine what has resulted from the lopsided power dynamics that have been written into our criminal code and promote judges’ ability to hand down informed, individualized sentences related to the circumstances of each case. We must be realistic about what offenses merit incarceration. We need to provide alternatives to prison that do not lead to low level offenders being unnecessarily warehoused in IDOC to the benefit of no one, offenders or taxpayers. We have to provide reentry skills, supports, and opportunities to those caught in the net of the criminal justice system so they may reenter the fold of society, rather than remain on the margins at great cost to them, as well as communities large and small throughout Illinois.

We commend the Commission for the work done thus far to articulate the specific policies that must be implemented for these changes to be enacted. We look forward to collaborating with this Commission and all system stakeholders to achieve important change in Illinois.

Respectfully submitted,

Jennifer Vollen-Katz
Executive Director
John Howard Association of Illinois
jvollen@thejha.org
(312) 291-9555