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.

Kate Holt, a Springfield woman, filed a complaint last week charging that the state’s capitol is violating state law by denying insurance coverage for physician-directed care for employees who are transgender. The charge recounts how Ms. Holt was denied coverage for medication prescribed by her physician - medication covered for other employees who are not transgender - after she was employed by the City of Springfield beginning in February 2020. The denial is a clear violation of Illinois’ Human Rights Act, according to the charge. 

“My prescriptions were excluded from insurance,” said Holt in announcing the charge. “They were excluded not because they were exotic or unreasonably expensive. My medications are common and covered for other medical conditions. I had already taken them under a physician’s care for more than two years without any problem. And the medications are covered for transgender people by other insurance plans, including our statewide Medicaid system.” 

“But these safe, widely available medications were denied to me under the City of Springfield’s plan because of who I am,” Holt added. 

At the time of her employment with the City in February 2020, Holt sought coverage for medication prescribed by her physician for treatment of her medical condition – gender dysphoria. Within a few weeks, Holt was disappointed to learn that the City’s Plan (administered by Trustmark Health Benefits) specifically denied coverage for “sex transformation and hormones related to such treatment.” Such an exclusion is aimed solely at people like her who are transgender and in need of treatment for gender dysphoria. 

Over the course of several months, she repeatedly contacted City employees responsible for management of the insurance plan, learning each time that her request for coverage had been denied. In June of 2020, Holt was told that the Joint Labor Management Health Care Committee had denied her request for coverage of hormone treatment, and that no change would be made. 

She also was told that there is no way to appeal this decision. The charge notes that the employee is being treated differently than other employees solely because she is transgender, a clear violation of the Illinois Human Rights Act.   

“The Capitol City needs to respect and follow the law of Illinois,” said Josh Blecher-Cohen, a legal fellow with the ACLU of Illinois. “Our client repeatedly raised this issue with those responsible for managing the employee insurance plan at the City of Springfield. She was repeatedly rebuffed. 

“The City responded with callous indifference and has taken no action – they need to do so.”  

Illinois still sends too many people to prison - and gives too many people felony records that follow them for life - for crimes that are often just the symptoms of poverty, addiction, and mental illness. Like a young woman in Chicago, who had her dreams of a career in medicine dashed after pleading guilty to simple drug possession. Or a teenager facing the prospect of prison after being caught stealing a winter coat from a Target store.

Even after a person finishes their sentence, having a felony record means that they will continue to face severe stigma, including numerous restrictions on access to employment, housing, education, and other crucial resources. These consequences are concentrated in segregated low-income neighborhoods, further deepening the existing patterns of inequality and disinvestment.

Over the past three decades, at least 1.5 million people have been convicted of felonies in Illinois. Many of these Illinoisans became entangled in the criminal legal system as a result of possessing small amounts of drugs or for property offenses like shoplifting—crimes often related to addiction and other mental health issues. From 2016 to 2018 alone, more than 5,000 people went to prison in Illinois for low-level thefts that would be categorized as misdemeanors in most other states. During this time, about 20,000 people were convicted of felonies for small-scale drug possession in Illinois, with more 7,500 going to prison.

But Illinois jails and prisons are not treatment centers. Police, prosecutors, and judges are fundamentally ill-equipped to manage complex health conditions. Even the most well-intentioned people working in criminal courts and correctional facilities usually lack the training, support, and resources to adequately respond to the specific needs of people with substance use disorders and other mental health issues.

Among people in Illinois jails and prisons, it is estimated that only 17 percent of those in need of clinical treatment services actually receive those services during their incarceration. While these numbers are abysmal, they are consistent with national averages.

Incarceration ultimately worsens the health outcomes of individuals who are at increased risk of death from overdose and suicide after their release. When people are already struggling with an addiction or health issues, the experience of going to jail only further destabilizes their lives, exacerbates the economic pressures they face, and stigmatizes them as criminals for life.

Incarceration also places stress on entire families and traumatizes children by taking their parents out of the home. Women represent a growing percentage of Illinois’ incarcerated population, usually because of retail theft or drug possession convictions. Incarcerated women are more likely to have been convicted of a low-level offense than their male counterparts and are also more likely than men to have been convicted of drug crimes: 30 percent vs. 18 percent. Of the approximately 2,500 women imprisoned in Illinois, about 80 percent are mothers and approximately 65 percent of their children are minors.

To reduce the number of people who become entangled in the legal system because of poverty and untreated health conditions, we must first start by ending the failed War on Drugs. To shift away from criminalization and embrace a public health and harm reduction approach to drug use and possession, Illinois must:

• Reduce the sentence classification for all drug crimes by at least one class and reclassify simple possession of any controlled substance from a felony to a misdemeanor.
• Eliminate mandatory minimums and sentencing enhancements based on prior criminal history for drug offenses.

Illinois must also modernize its outdated sentencing laws for property crimes. From 1975 through 2009, Illinois’ felony retail theft threshold remained unchanged at $150, even though the cost of goods quadrupled during that time. Since then, the cost of goods has continued to rise, but the threshold has increased just once and has not kept pace with inflation.

Today, retail theft is a felony in Illinois if the stolen goods have a value of just $300 or more, and even someone stealing a sandwich can face felony charges if they have a prior misdemeanor theft conviction on their record.

Those thresholds make Illinois an outlier, putting us out of step with every other state in the Midwest and most other states in the country. Only two states have a lower felony threshold. 29 states have thresholds of $1,000 or above, and several have thresholds of $2,000 or even $2,500.

While opponents have warned that raising the threshold might embolden thieves and cause theft to rise, evidence from other states shows that is not the case. A study of 37 states that raised their felony theft thresholds between 2000 and 2017 found that raising felony thresholds has no impact on the rates of theft or overall property crime, and the amount of a state’s felony theft threshold—whether it is $500, $1,000, $2,000, or more—is not correlated with its property crime and larceny rates.

Illinois should follow the lead of these 37 states and pass legislation to:

• Increase the felony threshold for retail theft from $300 to $2,000; and
• Repeal the penalty enhancement that requires a misdemeanor charge to be upgraded to a felony if the person has any prior theft conviction.

With these actions, the State of Illinois can work towards keeping more people out of its overcrowded prison and jail systems – especially in an ongoing pandemic – and give people a better chance at getting the treatment and help they need, instead of exacerbating the problem by throwing them behind bars.