Right now, mandatory minimum sentencing laws are extremely punitive to people in Illinois and routinely deny judges in our state the flexibility to craft individualized sentences. Even a man convicted of a nonviolent crime like selling drugs can be required to spend the rest of his life in prison, not because the judge determined that was a fair sentence, but because of a law passed by legislators who knew nothing about the circumstances of the case or his potential for rehabilitation.
While the Illinois Constitution provides 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,” mandatory minimum sentences and penalty enhancements leave judges no recourse but to sentence an individual to a long prison term, even if they believe that probation or a shorter term of incarceration would be a more just outcome.
In Illinois, all prison-eligible crimes are categorized within one of six felony classes, each of which carries a minimum and maximum prison sentence. For instance, a Class 4 felony is the lowest-level class with a one-year minimum prison sentence and three-year maximum; both the minimums and maximums grow progressively longer for Class 3, 2, and 1 felonies, respectively. It is important to note that first-degree murder is in its own class, with a minimum sentence of at least 20 years and a maximum of 60 years, or up to natural life if certain aggravating factors apply.
For a broad array of crimes, Illinois law provides mandatory minimum sentences, meaning the law specifically mandates imprisonment and prohibits consideration of any alternative to incarceration. Some examples of crimes carrying mandatory minimums in Illinois are residential burglary (which typically involves the unlawful entry into an unoccupied residence) and delivery of 3 grams or more of heroin.
These mandatory minimum sentencing laws rob judges of discretion in two ways: by forcing them to sentence people to prison rather than probation, and by forcing them to sentence people for unnecessarily long terms of incarceration. Evidence shows that the average sentences imposed by judges tend to be closer to the minimum sentence than the maximum, and judges have said they often feel constrained by those minimums.
At a recent hearing in the Illinois Senate Criminal Law Committee, retired Judge Donald Bernardi testified that “in discussions I’ve had with judges … we have often discussed the inability to go below a minimum. Judges would comment ‘I wish I could have given him probation.’ I mean that’s something I actually have heard quite a bit. I have never heard a judge complain ‘I wish I could have given the guy more time.’”
Illinois law also includes harmful mandatory penalty enhancements that require judges to tack on additional years—and sometimes decades—to a person’s sentence under certain circumstances. The severity and rigidity of these draconian sentencing enhancements make Illinois an extreme outlier compared to other states.
For instance, in 1999 the General Assembly passed a law requiring judges to add 15, 20, or even 25 years to a person’s sentence if they possessed or discharged a firearm during the crime. Illinois’ firearm enhancements are the most extreme of any state in terms of length, and are rigidly mandatory in comparison to other states’ laws. While in 2015 the legislature amended the law to allow judges the option not to apply the firearm enhancements to juvenile defendants, no such option exists for an adult defendant.
Illinois also still has destructive and ineffective “three strikes” laws on the books that impose lengthy mandatory prison sentences - and in some cases natural life imprisonment without the possibility of parole- if a person has certain prior convictions. Short of the death penalty, life imprisonment is the harshest imaginable punishment. If Illinois is to continue condemning people to die in prison, then lawmakers must ensure that this drastic sanction is never imposed mechanically, and only for the most serious violent crimes. A drug offense should never carry a life sentence, no matter what past convictions a person may have.
These laws also come with large racial disparities embedded into their enforcement - according to an analysis by the Illinois Sentencing Policy Advisory Council, 70% of the people admitted to prison who were eligible for “three strikes” sentencing were Black. For all but 27% of these individuals, at least one of their three convictions were for a non-forcible felony.
To empower judges to construct just sentences for individuals based on all the evidence before the court, Illinois must enact the following reforms to its sentencing laws:
- Allow judges more flexibility to determine the length of prison sentences by reducing the minimum sentence for most classes of offenses.
- Eliminate mandatory minimum sentences for residential burglary and certain drug law violations and give judges the discretion to determine whether a sentence of probation may be appropriate for these crimes.
- Roll back mandatory sentencing enhancements that require judges to add 15 - 25 years to a person’s sentence if they possessed or discharged a firearm during the crime.
- Limit “three strikes” sentencing to cases where all three convictions are for serious violent offenses
Every crime is different, and every individual charged with an offense is different. Judges, not the legislature, should be responsible for determining individual sentences for people found guilty of crimes. It is time for Illinois legislators to do away with harmful minimum sentencing laws and give judges the flexibility they need to better serve their communities.