Ehlers | Prisons It’s time to truly act on criminal justice reform.

COMMENTARY

ON PRISONS

To act justly, to love mercy

It’s time to truly act on criminal justice reform.

By ANTHONY EHLERS

Oregon Governor Kate Brown has granted more commutations and pardons than all of that state’s governors in the last 50 years combined.

Brown’s effort raises a question here in Illinois: why isn’t Governor J.B. Pritzker using his clemency powers more e ectively and expansively? He has stated repeatedly that he’s in favor of criminal justice reform. If that’s truly the case, it’s time for Pritzker to address the historical harms and injustices associated with mass incarceration. It’s time that the state of Illinois refl ects the governor’s stated values and beliefs.

Clemency is an umbrella term that refers to the ability of governors to grant mercy to incarcerated people. Clemency includes pardons, which fully forgive someone who has committed a crime; commutations, which reduce prison sentences, often resulting in early release; reprieves, which pause punishment; and eliminating court-related fi nes and fees.

Historically, presidents and governors regularly used clemency for things like wrongful convictions, witness recantation, flawed evidence, police misconduct, and a prisoner’s exceptional rehabilitation. Alexander Hamilton argued in the Federalist Papers that clemency is a necessary check on a justice system that levels excessive punishment. Without clemency, he argued, “justice would wear a countenance too sanguinary and cruel.”

There are many reasons Pritzker should be granting clemency. The injustices of mass incarceration, the tough-on-crime deterrence myth, racism, laws like Truth in Sentencing, and life without the possibility of parole (also called death by incarceration, or DBI), are inextricably intertwined. The victims of mass incarceration are su ering from overly punitive laws and dying in prison despite yearslong self-rehabilitation.

Mass incarceration is the civil rights issue of our era, and we cannot eradicate mass incarceration without addressing long sentences. Clemency is a tool for criminal justice reform, and an act of grace, exercising the belief that compassionate mercy and ensuring public safety are not mutually exclusive.

“The state of Illinois, like too many states in our union, is experiencing an unacknowledged and little known humanitarian crisis where thousands of people are over-sentenced to

WELSEY TINGEY VIA UNSPLASH

death by incarceration,” Joseph Dole, policy director of Parole Illinois, wrote in 2021. “These DBI sentences destroy thousands of lives for no legitimate penological purpose, are a historical anomaly in Illinois and around the world, and are completely unnecessary for public safety.”

While Illinois had the death penalty until 2011, it was only handed out about a dozen times a year statewide. Even at the height of the death penalty in Illinois, when many innocent people sat awaiting execution, Death Row never held more than 200 people.

Today, Illinois sentences hundreds of people to death by incarceration every year! This transition from viewing a dozen people per year as irredeemable to hundreds was not only unjustifi ed, but has resulted in the steady growth of Illinois’s “slow Death Row.”

It’s important to note that juveniles and young adults are more amenable to rehabilitation and less culpable for crimes than fully mature adults. In 2019, the Illinois Supreme Court ruled that sentences of more than 40 years were a de facto life sentence for people younger than 18.

Maintaining sentences that ignore those facts and sentencing juveniles and young adults to die in prison is inhumane.

We arrived at this humanitarian crisis via emotional hyperbole, racism, political gamesmanship, the abandonment of rehabilitation as an ideal, and the mass demonization and dehumanization of “criminals.”

I’ve often described the Illinois Department of Corrections (IDOC) as a waste-management system. Society views us as garbage, and so opportunities for rehabilitation are nonexistent. In 1994, Congress banned prisoners from Pell grant eligibility amid a change in the social milieu from favoring rehabilitation to demanding punitiveness. IDOC largely abandoned college and vocational programs in the 1990s, and turned to warehousing people in increasingly inhumane conditions.

Despite that, many prisoners took it upon themselves to self-rehabilitate. Many do so even though they have no avenue of release other than executive clemency, which has been a nearly nonexistent remedy for decades.

Today, society and the IDOC have acknowl-

COMMENTARY

edged that abandoning rehabilitation was a mistake. This summer, Congress reinstated Pell grant eligibility for people in prison, and vocational and college programs are fl ooding back into IDOC.

Unfortunately, the people who for decades overcame the IDOC’s hindrances to rehabilitation, and spent untold time, money, and e ort to rehabilitate themselves, will see little benefi t from their herculean e orts.

That’s because most of the legislation being passed to increase good time for rehabilitation efforts is not retroactive, and many of these same prisoners have a DBI sentence. The only way their e orts to self-rehabilitate can be rewarded is through an act of clemency by the governor.

It is an incredible injustice to acknowledge it was a mistake to abandon the goal of rehabilitation, while simultaneously denying any opportunity for early release for all those in prison who rehabilitated themselves despite all of the hindrances put in their way by prison administration and IDOC at large.

Illinois has thus far failed to heed the true message of criminal justice reform. Even after Illinois did away with the death penalty, its criminal justice system is still as lethal and unjust as it ever was. Thousands of people, a disproportionate number of whom are Black, and many who are innocent, are sentenced to su er for decades in prison until they die there.

Neither judges or legislators take into account a person’s capacity to change, to grow, to be rehabilitated. Deterrence here literally inflicts more punishment than is justifiable. It’s done in the false hope that the punishment will be so terrible, that it will scare others out of committing that crime. We know that doesn’t work! Increasing the pain of one individual to try to coerce the behavior of another person is morally repugnant. Nonetheless, we currently have thousands of people in Illinois prisons su ering from this injustice.

The Sentencing Project notes, “the racial and ethnic disparities plague the entire criminal justice system from arrest to conviction, and is even more profound among those serving life sentences.” Illinois has been one of the worst o enders in that regard.

While Black people make up less than 15 percent of Illinoisans, they were 54 percent of the Illinois prison population as of June. Nationally, nearly half of people serving life without parole (LWOP) and de facto life sentences are Black.

Pritzker needs to exercise his executive clemency powers to grant blanket clemency to those serving a sentence of DBI (LWOP or de facto life), and anyone sentenced under the provisions of the Truth in Sentencing Act.

I would ask the governor to commute the sentences of anyone currently serving a sentence of 40 years or more, including LWOP, to a sentence of parole eligibility after they serve 15 to 20 years of their sentence; and also order that anyone who is subject to any TIS provision and are sentenced in that aspect must have the IDOC recalculate all sentences at the 50 percent (day for day) rate.

Such action would only be granting parole eligibility after 15 to 20 years in prison. No one should have to wait longer than that to have an initial hearing to determine if they can be safely returned to useful citizenship.

The Model Penal Code of the American Legal Institute recommends a second look for everyone after 15 years. The Prison Policy Initiative recommends parole eligibility after 15 years, as does Families Against Mandatory Minimums. The Sentencing Project in Washington, D.C., recommends capping all sentences at 20 years like European countries do.

“If you are confi dent that you can keep people safe, you’ve given victims the opportunity to have their voices heard and made sure their concerns are addressed, and individuals have gone through an extensive amount of rehabilitation and shown accountability, what is the point of continuing to incarcerate someone, other than retribution?” said Oregon governor Brown in June.

Governor Rauner actually pioneered the fi rst type of clemency when he commuted the LWOP sentence of Sherman Morissette to parole eligibility in January of 2019. Morissette was subsequently granted parole by the Prisoner Review Board after 19 years in prison.

Governor Pritzker has done the same numerous times. It’s time the governor did it for all people sentenced to die in prison. v @Prisonjourn