IDOC Must Promulgate Proposed Administrative Rules for Earned Discretionary Sentencing Credit Without Further Delay
Uncertainty breeds stress and discontent. This is especially true for prisoners who do not know when they will be exiting prison doors, which is the primary concern of most. Additionally, uncertainty about when prisoners will be leaving prison makes planning for reentry unnecessarily more difficult for prisoners, their families, and the Illinois Department of Corrections (IDOC).
In 2012, the Illinois legislature gave IDOC broad discretion to award eligible prisoners who demonstrated good behavior up to 180 days of “supplemental sentence credit” (SSC) towards their early release. From the beginning, uncertainty enveloped this initiative, as not only were relatively few prisoners released from IDOC awarded this credit, but no information was provided as to why individuals did or did not receive an SSC award. This law was effective January 1, 2013. In the exercise of Departmental discretion and under its rulemaking authority, IDOC promulgated an Administrative Rule effective February 1, 2013, which set out various internal factors that the agency would consider, in addition to the statutorily proscribed factors, in determining whether to award SSC, such as a prisoner’s performance and achievements in work assignments, education and programming while in IDOC custody. Under this Rule, IDOC broadened the class of prisoners who were considered per se ineligible for SSC beyond those delineated in the statute, providing, for example, that any prisoner who had been found guilty of a 100-level disciplinary offense in IDOC custody or who was returned to IDOC custody for a parole violation would be automatically ineligible for SSC. The outcome of IDOC’s 2013 implementation of SSC was that very few prisoners received any days of SSC.
Illinois’ lawmakers revisited the issue of discretionary sentencing credits in 2017 and a new law that went into effect in January of 2018 modified the previous statute governing this credit, now referred to by IDOC as Earned Discretionary Sentencing Credit (EDSC). In so doing, Illinois’ Governor and lawmakers made clear that purpose of the new law was to expand, rather than restrict, the use of discretionary sentencing credit so that, in Governor Rauner’s words, “[m]ore inmates [have] the opportunity to strive to return sooner to a productive life…” The new law again gives IDOC the discretion to award up to 180 days sentencing credit to eligible prisoners who exhibit good behavior. Under the new law, lawmakers intended that more categories of prisoners be eligible for sentencing credits than under the prior law. The new law makes clear that the list of statutory factors to be considered in awarding EDSC is not exhaustive and it remains in IDOC’s discretion to decide the weight factors should be given.
In short, the new law again leaves it in the hands of IDOC to use its rulemaking authority to promulgate standards and guidelines for the exercise of its discretion to implement the awarding of EDSC—understanding that the underlying legislative intent and purpose of the new law was to expand the use of discretionary sentencing credit. Where the legislature delegates substantial discretion to an agency in implementing a law, as this new law does, it is up to the agency to establish rules stating precisely and clearly the standards under which it will exercise its discretionary power to fully inform those persons who will be affected. As it stands, however, nine months after the new law became effective, IDOC has yet to issue a single rule or standard setting forth how it will exercise its discretion to award EDSC. In comparison, after the law allowing IDOC to award eligible prisoners up to six months of sentencing credit for exhibiting good behavior became effective in 2013, IDOC had Administrative Rules for sentencing credits in place less than two months after the day the law went into effect. Frustrating the new law’s intent, IDOC has not taken any action to implement EDSC and award discretionary credit to deserving prisoners.
IDOC’s inaction and silence on the implementation of EDSC has generated mass confusion and discord among prisoners who are affected by and could benefit from the new law. Most stakeholders remain uninformed as to how and when IDOC plans to put it into effect and to exercise its discretionary power under the new law. IDOC’s unwillingness to establish administrative rules and processes to implement the new law is a derogation of its duty and has created an untenable situation.
Consistent with the intent of the Legislature, it is critical that IDOC propose administrative rule changes to implement Earned Discretionary Sentencing Credits without further delay, clarify for prisoners and the public the Department’s internal process for determining which prisoners are eligible to be considered for and granted EDSC, and immediately begin the process of granting EDSC to prisoners who are deserving of it.
Any reduction of IDOC’s population resulting from the Department’s increased utilization of earned sentencing credits will allow for better use of limited resources, which is exactly the end the Legislature and Governor sought to achieve when the law governing sentencing credits was changed in 2017. It is within IDOC’s discretion and power to determine the standards and process for implementation, award EDSC, and make all of the relevant information available to the public and prisoners. In accordance with the law, this should be done immediately.
For more information please contact:
Jennifer Vollen-Katz, Executive Director, John Howard Association
312-291-9555, firstname.lastname@example.org, www.thejha.org
 730 ILCS 5/3-6-3 (2012), http://www.ilga.gov/legislation/ilcs/documents/073000050K3-6-3.htm.
 Title 20, Illinois Administrative Code, Section 107.210, “Awarding of Supplemental Sentence Credit,” ftp://www.ilga.gov/jcar/admincode/020/020001070C02100R.html.
 Public Act 100-0575, (Eff. 1/8/2018), http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=100-0575.
 Illinois Senate Republican Caucus Webpage, “Governor signs Senate Bill 1607 to expand earned prison sentence-credit eligibility,” (January 9, 2018), http://senategop.state.il.us/News/5118/Governor-signs-Senate-Bill-1607-to-expand-earned-prison-sentencecredit-eligibility/news-detail/.
 5 ILCS 100/5-20 (2017), http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=83&ChapterID=2&SeqStart=2100000&SeqEnd=5900000.
 JHA sent a draft of this statement to IDOC on August 15, 2018, and asked that IDOC provide any missing information or correct any inaccuracies contained in it. In response to this request, a representative from IDOC thanked us for sharing the document and responded, “The IDOC has been working to implement an electronic version of sentencing credits that will improve the consistency of application across the entire corrections system. We are obligated to ensure that the new sentence credit law is applied equally to all who qualify for sentence credits. We believe our Agency’s new system will be more transparent, while accurate and efficient for the utilization by staff and those who are sentenced to the custody of the Illinois Dept. of Corrections.”