Illinois Issues: What Will It Take To Stem Mass Incarceration?

Jan 7, 2016

Most experts say the governor’s target of a 25 percent reduction in the state's prison population can't be met by simply backing off the war on drugs. Instead, policymakers will have to look beyond the "nons” — nonviolent, nonserious and nonsexual offenders — and in so doing, challenge entrenched attitudes about crime and justice. 

Edmund Buck was arrested when he was 15 years old. He and another teenager were accused of killing rival gang member Burrell Hamilton, age 14 — beating him with their fists and a cast-iron skillet, and stabbing him, a detective told the Chicago Tribune. It was 1994. Buck would be convicted as an adult and spend nearly two decades in prison, earning day-for-day credit on a 39-year sentence.

As happens with most people who go to prison, even many convicted of murder, Buck eventually got out. That happened in late September 2013, a month after his 35th birthday. Two years later, he says making it on the outside hasn’t been easy.

“Prison, going in as young as I did, did not prepare me to be an adult in the world today,” Buck says. None of the programs were geared toward people who’d committed violent crimes, he says, and that pattern continued after his release. “Virtually every program that I ever knocked on the door to denied me assistance because of my offense.”

Buck was speaking at a public hearing of the Illinois State Commission on Criminal Justice and Sentencing Reform. That’s the group Gov. Bruce Rauner created to figure out how to reduce Illinois’ prison population by 25 percent over the next decade. It’s comprised of legislators, lawyers, judges, police, prison administrators, professors and a community activist.

The executive order establishing the commission called for a final report by the end of 2015, but now commissioners say they need more time. Instead, they’re about to release an interim list of less controversial recommendations — what some have called low-hanging fruit — and plan to take another three months to consider the more politically vexing options.

Buck’s complaint — that a violent act twenty years prior meant he was rejected nearly every time he sought help figuring out how to live as a free man — points to larger questions about the future of criminal justice in America. Experts say if politicians are serious about reducing mass incarceration, they’ll have to go beyond the usual proposals of easing up on low-level crimes. They will have to look beyond the “non, non, nons” — the “nonviolent, nonserious and nonsexual offenders,” as political scientist Marie Gottschalk puts it.

So far, the Illinois commission’s suggestions for change have been limited to relatively easy issues. It remains to be seen whether, with the extra three months they’ve been given, commissioners will address what experts say is necessary to significantly reduce the prison population, such as sentence lengths and truth-in-sentencing laws. Put more succinctly: It there any chance the commissioners can meet Rauner’s goal?

For years, reformers had a hard time getting traction with claims that Illinois prisons were overcrowded. Yes, there were 49,000 inmates in a system designed to house 32,000. But after a bungled early-release program nearly cost then-Gov. Pat Quinn the 2010 election, the governor slowed the release of prisoners and insisted everything was fine. “I would say the prisons are crowded,” Quinn told Chicago public radio station WBEZ-FM in 2013. But when a host asked whether they were overcrowded: “No, I wouldn’t say that. I think that everyone who is in the prison has adequate space, and it’s a humane situation.”

A year later, Quinn lost his bid for re-election, and the new governor had a different perspective. “The conditions in our prisons are unacceptable,” Rauner said in his 2015 State of the State address. “Inmates and corrections officers alike find themselves in an unsafe environment. It’s wrong.” Illinois is not alone. A national movement is taking shape — uniting small-government conservatives on the right and civil liberties advocates on the left — to maintain public safety without having to incarcerate so many people.

There’s a widespread perception that the war on drugs is the main reason America has one of the highest per-capita incarceration rates in the world. That’s one of the arguments a bipartisan group of legislators used last year in passing House Bill 218, which would have decriminalized possession of relatively small amounts of marijuana. Rauner made changes to the bill with his amendatory veto power, but the legislation died after the House did not take up the new version. State Rep. Kelly Cassidy, a Democrat from Chicago, has reintroduced the legislation, incorporating the governor’s proposed amendments, as HB 4357.

Gottschalk, a professor at the University of Pennsylvania, calls this sort of thinking “the war against the war on drugs.” But in her 2014 book Caught: The Prison State and the Lockdown of American Politics, she writes that it’s not nearly enough: “All the recent attention on the missteps of the war on drugs has contributed to the misperception that the war on drugs has been the primary engine of mass incarceration in the United States.”

'All the recent attention on the missteps of the war on drugs has contributed to the misperception that the war on drugs has been the primary engine of mass incarceration in the United States.'

Drawing a distinction between the “non, non, nons” and more violent, serious and sexual offenders has resulted in what Gottschalk calls worthwhile reforms in drug policy. “But if the ultimate aim is to slash the prison and jail population, render the criminal justice system more just, and dismantle the carceral state without jeopardizing public safety, this political strategy may be ultimately self-defeating,” she writes. Gottschalk explains that separating “good” and “bad” offenders further stigmatizes people convicted of violent or sexual offenses. That, in turn, has left the U.S. “deeply attached to condemning huge numbers of offenders to extremely long sentences.”

Michael Jacobson, the author of Downsizing Prisons: How to Reduce Crime and End Mass Incarceration, says that desire for long sentences puts America way out of step with other developed nations. Today he heads the Institute for State & Local Government at the City University of New York, but in the 1990s Jacobson had successive stints as probation and correction commissioner in New York City.

“In most other countries, countries in Europe, a 10-year prison sentence is considered just an incredibly harsh punishment. Because it is, for anyone who’s ever been in prison,” Jacobson says. “But we just tend to throw around numbers like it's a card game. Ten. Fifteen. Twenty. Twenty-five. No time is too much time.

“But in the end, you have to ask yourself: for what purpose? What social good does it achieve? You start to very quickly lose any deterrent effects — deterrence is all about swiftness and certainty, not whether it’s 15 years or 13 years.” Jacobson says it also diverts money that could be used to promote public safety in other ways. “You can ask 100 experts: If you shortened everyone’s sentence who was getting 20 years to 18 years, and took all that money, could you invest it in ways that got you more public safety than the last two years of a 20-year sentence?” More police? Better schools? Economic development?

Members of the Illinois State Commission on Criminal Justice and Sentencing Reform heard from one such expert. Daniel Cooper, who’s based at Adler University, explained that over a five-year period, Illinois spent more than a million dollars to incarcerate residents on each of 851 city blocks in Chicago. Cooper has suggestions for ways in which that money might be better spent, but it remains to be seen how willing the commission will be to follow that path.

The commission arrived at its preliminary recommendations during a long meeting in November, debating the ideas line-by-line, word-by-word. Then, after the language seemed to be where most people wanted it, there was a roll-call vote. They began with relatively uncontroversial suggestions: “Improve and expand data collection, integration and sharing” and “Require all state agencies that provide funding for criminal justice programs to evaluate those programs.”

Then things got more complicated. There was significantly more debate over a proposal to “Prevent the use of prison for those with short lengths of stay.” Commission Chairman Rodger Heaton, a former U.S. attorney and current Rauner aide, explained that when inmates are sentenced to fewer than 12 months in prison, they often have so much credit from being in a local jail awaiting trial that they spend very little time in state custody.

Rodger Heaton (right), a former U.S. attorney and current top Rauner aide, is chairman of the Illinois State Commission on Criminal Justice and Sentencing Reform.
Credit Brian Mackey / WUIS/Illinois Issues

“By the time someone goes through receiving and classification, is assigned to a parent facility, is transferred there, and then signs up for — or is routed toward — particular kinds of treatment or programming, the waitlist is such that they don't get anything from the Department of Corrections during that short stay, other than to be kept safe, fed and clothed,” Heaton said.

There was also a great deal of debate over whether judges ought to have the discretion to give a sentence of probation — as opposed to mandatory prison — for crimes such as residential burglary, repeat violations of driving on a suspended license, drug law violations, Class 2 felonies and possession of a weapon by a felon. The last point, given the prevalence of shootings in Chicago, Rockford and a few other Illinois cities, was particularly controversial. Howard Peters, a commission member and former director of the Department of Corrections, said making the weapons offense subject to probation could “poison the well,” leading many legislators to discount all the work of the commission.

“As a practical person who really wants something done in terms of returning discretion (to judges), I’m concerned … that just having that there will contaminate the whole group,” Peters said. “Through a separate action, any wise lawmaker could go to the legislature and make that issue probationable at any point that they wish.”

'If we're acting like politicians in here ... we're not doing what we're supposed to be doing as a commission.'

The idea of Illinois state legislators, many of whom are perpetually focused on the next election, proposing something so controversial drew a retort from fellow commissioner Kwame Raoul, a Democratic state senator from Chicago. “I’m a wise lawmaker — I think I am — but the reality is, the politics, in the absence of the endorsement of a group like this, it won’t happen, Howard,” Raoul said. “If we’re acting like politicians in here, just pure politicians in here, we’re not doing what we’re supposed to be doing as a commission.”

Through that and other proposals, the commission is urging Illinois to refocus its justice system on risk, looking at individual offenders rather than the offenses with which they’re charged. Jacobson, the CUNY expert, says from that perspective, it could actually be worse for the justice system to go easy on a nonserious young offender than an old-timer with a long record.

“The fact of the matter is there’s probably more risk involved in cutting the sentence of a 24-year-old who’s spent the last eight years selling low-level drugs on the street,” Jacobson says. “That person probably has a lot more risk than a 58 year old who’s been in prison for 25 years for robbing a 7-Eleven.”

Among the biggest issues commissioners are expected to address in the coming months are truth-in-sentencing, the length of sentences and the disproportionate number of contacts that African Americans have with police.

The panel’s work won’t get any easier from here. That’s in part because, as both Gottschalk and Jacobson indicated, reducing incarceration to the extent the governor has called for must involve lowering sentences for politically unpopular classes of criminals — the violent, the serious and the sexual. “All you need is one case where that guy goes and does something horrible for it all to go south,” Jacobson says. Rauner himself used such a scenario against Quinn in the 2014 campaign. “One of the questions I’ve been struggling with is how can you get Americans to think about this in a way that’s not immediately ‘Screw ’em. Leave them there forever,’” Jacobson says. “Is it some notion of human dignity in punishment? I don’t know. It’s a very tough question.”

Commission member David Olson, a professor of criminal justice at Loyola University Chicago, says voters have to decide how much punishment and retribution they’re willing to pay for. “I always try to remind my students that if you say (murderers) should stay in prison for the rest of their life, then don’t bitch and moan if there’s not a lot of money in the MAP program that provides scholarships to college students, because that money is competing with the money that the Illinois Department of Corrections spends,” Olson says.

Olson says over the past four decades, the average sentence for murder in Illinois has gone from 10 years to 40 years. He says the first bump happened in the 1970s, when Illinois moved from indeterminate sentencing — 10 to life, for example, with a parole board deciding when someone was let go — to a fixed or determinate (PDF) number of years. That’s the period in which Buck, the former inmate who spoke to the commission last year, was sentenced to 39 years. The judge would have known Buck could be out in half that time with day-for-day good-conduct credit.

David Olson, a professor of criminal justice at Loyola University Chicago, says looking at truth-in-sentencing will be difficult-but-necessary if the commission has any hope of meeting its 25 percent prison reduction goal.
Credit Brian Mackey / WUIS/Illinois Issues

Olson says the next shift happened with truth-in-sentencing, which Illinois adopted in 1996, requiring that people convicted of murder serve 100 percent of their sentence. Had Buck committed his crime a few years later, he might have decades yet to spend in prison.

“That’s going to be the heavy lift. That’s the area that the commission needs to look at next if they really do want to achieve this 25 percent reduction,” Olson says. “It can’t be done by legalizing drugs. If we said no more prison sentences for drugs, we wouldn’t get down to that 25 percent goal.” Rather, the commission will have to look at violent crime, including murder. “Is 40 years really what we feel is appropriate? Or would 35 be OK? Would 30 be OK?” he asks. “Because we’re still getting our retribution — it’s still a lot more than what we used to get — but that would have a pretty substantial long-term impact, because that’s really what’s driving the long-term growth in the population.”

Part of the difficulty is the potential disconnect between the risk an individual offender poses and what our evolving notions of justice say he deserves — the gap between statistics and emotion. St. Clair County State’s Attorney Brendan Kelly says he’s found that most people understand the idea of making decisions based on evidence — say, that two people charged with the same crime might not post the same risk to society. “But we do have to understand that it is impossible to remove emotion entirely from the equation. You can have someone who committed murder, and this is the only time they will ever do something like that. But that single act is so heinous, so offensive to our collective view of what is right and what is wrong, that they have lost, either permanently or for a very long time, the right to live among the rest of us.”

'We do have to understand that it is impossible to remove emotion entirely from the equation.'

Another topic that could be controversial among commissioners is disproportionate minority contact — the fact that African Americans and Latinos are more likely to be arrested and imprisoned than whites. “Let’s say black and white people are equally as likely to use marijuana for personal use,” says Elena Quintana, a psychologist and commission member. “That has been shown again and again and again. And yet, white people are 15 times less likely to be arrested for marijuana possession as black people. They’re more likely to just be let off … or get some other form of sanction that does not create a lifelong barrier to employment or liberty.”

Quintana, who is director of the Institute on Public Safety & Social Justice at Adler University, has been urging her colleagues to take up the question of race. “It’s very hard to know what to do, and that’s why I think it wasn’t taken on earlier or more squarely,” she says. She’s circulated a list of ideas to commissioners that include using a public health model — rather than criminal justice — to respond to drugs, poverty, homelessness, prostitution and mental health disorders. It also calls for legalizing drugs and eliminating sentence enhancements for being a gang member or a felon — designations not necessarily tied to an individual’s present behavior or the risk they pose.

“When you start to really think about disproportionate minority contact — it’s a justice system that’s so basically unjust; it’s so statistically overwhelming,” Quintana says. “When you have something that’s that out of whack, it’s not about the personalities of the people that you’re arresting. It’s that the system is broken, and we need to address that.”

Chicago's million-dollar blocks — where the state spent more than $1 million locking people up over a five-year period — are concentrated in the most impoverished parts of the city.
Credit chicagosmilliondollarblocks.com

The concept of Chicago’s million-dollar blocks ties in closely with the idea of disproportionate minority contact. Cooper, a colleague of Quintana’s at Adler University, says it’s a way of changing the lens through which we view incarceration, moving away from offenses and instead focusing on how much money the state is spending on neighborhoods.

“Instead of ‘this is a dangerous, violent neighborhood,’” Cooper says, “the idea is ‘this is actually a place where we’re investing heavily in suppression and incarceration.’” Chicago’s 851 million-dollar blocks are concentrated in some of the city’s poorest neighborhoods, on the south and west sides: Austin, Humboldt Park, North Lawndale, West Englewood and Roseland. Cooper says he wants people to think about whether incarceration is the best response to the problems of those neighborhoods.

“While there are very real public safety challenges, a lot of that has to do with forms of disadvantage that have been in place for years: poverty, disinvestment,” he says. “A lot of the history of neighborhoods on the west and south sides go back to redlining, where these neighborhoods did not accumulate wealth through housing the same way other neighborhoods did.

And that’s just on the level of the neighborhood. A report last year from the Ella Baker Center for Human Rights and other groups examined the financial burden incarceration puts on individual families: “Despite their often-limited resources, families are the primary resource for housing, employment, and health needs of their formerly incarcerated loved ones, filling the gaps left by diminishing budgets for re-entry services,” the report says.

That was certainly the case for Edmund Buck. When he shared his story with commissioners, he was accompanied by his sister, Davonda. He says without support from his family, he’d have had a much harder time making it after his release from prison.

Davonda, who’s the eldest of Edmund’s siblings, put a finer point on it: “It’s like they don’t want them to live any kind of life. You know, ‘We took most of it with you being here in prison, but we’re going to throw you out on the street and go for it. Good luck.’ It’s like you just want them to come back.”

While incarcerated in Danville Correctional Center, Buck participated in the Education Justice Project, a college-in-prison program sponsored by the University of Illinois Urbana-Champaign. Today he works in home care. He writes poetry. He’s collaborating on a re-entry manual to help other newly free inmates find programs and support. He has less than a year of mandatory supervised release before he’ll be done with his sentence.

Illinois, like many states, has a high recidivism rate. In a telephone interview, Buck said while prison did not prepare him for living as a free adult, he made one rule for himself: “I might not know what I’m going to do, but I do know what I won’t do.”

The fact remains, however, that when he goes out for a job and an employer conducts a background check, it will come out that his background includes murder. There are some stains that even time, research and changing norms have a hard time overcoming. And Buck knows that keeps the odds long on whether legislators will ever decide to look beyond the non, non, nons.

“I guess this is the bit of the cynic in me,” Buck says, “but I think a lot of this stuff doesn’t get a lot of traction because you won’t find too many politicians willing to stick their neck out for — not just the convicted felons, but the violent offenders. It’s like an albatross, man. They fear it getting hung around their neck.”

Illinois Issues is in-depth reporting and analysis that takes you beyond the headlines to provide a deeper understanding of our state. Illinois Issues is produced by NPR Illinois in Springfield.