22 Jan Winter 2021 Newsletter to People Who Are Incarcerated
It has been 10 months and counting since the onset of COVID-19 and statewide quarantine policies. Please know we think about you all the time, we care about the conditions inside prisons, and we are working as hard as we can to address some of the issues you are facing. Thank you to all who have taken time to write to us. While we are unable to answer each letter individually, we read every one of your letters. As usual, we will use this letter to answer as many of your questions as possible. If we don’t have an answer, we reach out to our allies to learn more, and pass that information along when it seems useful. Sometimes the answers we get are not what any of us want to hear, but we feel we believe starting with the facts as we see them is the best place to start.
The 101st General Assembly finished its business for 2019 – 2020 on the morning of January 13 following its 5-day “lame-duck” session.
The 102nd General Assembly convened January 13th for the 1st time with all the people who were elected in November, 2020. Once they were all sworn in, the legislators went home and will re-commence their work together at some time in the coming two months. They are still very concerned about COVID-19 and want to keep their in-person meetings to a minimum.
There were large – even historic – shifts in the law during the lame-duck session. We are still digesting the 749 page criminal legal reform bill – HB3653 SA2 – that passed on the morning of January 13, and we do our best below to summarize what we believe the new bill will do. TWO IMPORTANT THINGS TO REMEMBER:
- The Governor has not yet signed the bill as of January 20, and SO IT IS NOT YET LAW.
- Even if it does become law, there will be months of legal analysis and review necessary to clarify some of the language. EVERYTHING we say about the bill below is our non-legal opinion and is SUBJECT TO CHANGE.
All of the old bills that were filed and debated in the last session (the 101st session of the General Assembly) died when the session ended the morning of January 13th, 2021. That means that if legislative sponsors want to keep pursuing all their previous bill ideas, they have to refile them and start the process all over again.
HOW YOU CAN HELP
If your friends and family on the outside haven’t gotten to know their State Senator and State Representative yet, now is a good time for them to start! At the beginning of the session, anything is possible. People come to the General Assembly with a sense of excitement and optimism and an openness to new ideas to improve our state. And that is true now more than ever.
There are some new people who were first elected in November 2020 and many of them have never heard from someone who has an incarcerated friend or family member. Many legislators are not aware that our prison sentences are extremely long. Many legislators are not aware of how accountability laws work to charge and convict people of crimes they did not directly commit. Same thing with felony-murder laws.
Think of this time as an opportunity for your friends and family — and you — to make a new friend with state legislators. You can send them letters too. And you should! Tell your story (but keep it as brief as possible).
We will find out what the bill numbers are when session starts up again in January.
The General Assembly adjourns May 31 so we are about to get busy. Your voice is important.
Summary of the 749 page “omnibus” bill, HB3653 SA 1. as passed Jan 13, 2020
- This summary is very fresh and has not yet been reviewed by a legal team or colleagues. Remember that everything written here is subject to change as we learn more about the legislation.
- Based on our initial read, we do not think the provisions in this bill are retroactive. There may be exceptions, but we are not ready to weigh in on that yet!
- Remember: THIS IS NOT YET LAW, it needs the Governor’s signature, and it may take time for provisions to be interpreted and enacted even if the Governor does sign the bill.
- IF signed, most provisions will go into effect on effect on July 1, 2021, except for certain provisions that are effective either January 1, 2022, January 1, 2023, or January 1, 2025.
The bill makes 3 relatively small changes related to sentencing:
- HABITUAL CRIMINALS
- Amends statute on recidivism and habitual criminals to say the first offense to count toward being a habitual criminal must be 21 or over. While the prior statute allowed all felonies to “count” toward calculation to sentence as Class X, the new statute says that the defendant, 21 or over, must be convicted of Class 1 or Class 2 FORCIBLE felony.
- FELONY MURDER
- Changes the previous law to make clear that if a third party (such as a police officer, homeowner, or store clerk, for example), do the act which causes the death of someone during the felony, the defendant cannot be charged with murder for the death. Unless a co-defendant kills another co-defendant, it addresses situations when a co-defendant is killed.
- Amends Sec 9.1 9 ( c ) to say “he or she, acting alone or with one or more participants, commits or attempts to commit a forcible felony other than second degree murder, and in the course of or in furtherance of such crime or flight therefrom, he or she or another participant causes the death of a person”
- Without contradicting other laws, allows a court, when considering a sentence for an offense with a mandatory minimum sentence in prison, to instead sentence the offender to probation, conditional discharge, or a lesser term of imprisonment it deems appropriate if:
- the offense involves the use or possession of drugs, retail theft, or driving on a revoked license due to unpaid financial obligations;
- the court finds that the defendant does not pose a risk to public safety; and
- the interest of justice requires imposing a term of probation, conditional discharge, or a lesser term of imprisonment. The court must state on the record its reasons for imposing probation, conditional discharge, or a lesser term of imprisonment.
The bill makes several changes to practices within corrections and county jails:
- SENTENCING CREDITS (revised from summary written by John Maki of the Alliance for Safety and Justice) amended to:
- Offer guidance on how risk assessment should be used.
- Specify that forcible felonies are eligible (with new language around a demonstrated commitment to rehabilitation).
- Allow people serving longer sentences to earn a proportionally higher credit: allows people serving sentences of less than 5 years to earn 180 days and allowing people serving sentences of 5 years or more to earn up to 365 days.
- Provide clearer structure and transparency to credit revocation by requiring the use of a sanctions matrix that aligns credit revocation rates system-wide, creates behavioral incentives for people who have lost credits due to violations by requiring a periodic review and restoration process based on maintained good conduct after the violation.
- Amends earned program credits to more uniform access to these credits for all people across the IDOC system. These changes include:
- Allows people in Adult Transition Centers to earn program credits for successful progression through program tiers in those facilities.
- Allows people to earn credits (at a lower rate) for other self-improvement programs not currently covered by the program credit, and for volunteer activities and work assignments other than correctional industries.
- Grants partial credit to people who start, but for reasons outside their control (injury/illness, facility transfer) are unable to complete programs.
- Allows people who are on the waiting list for a program but transferred to maintain portable waitlist priority for the new facility.
- CALCULATION OF TERM OF IMPRISONMENT
- For the purpose of sentence credit, home detention such as curfews that restrict movement for 12 hours or more per day counts.
- Electronic monitoring is not required for home detention to be considered custodial for purposes of sentencing credit.
- PROGRAM ELIGIBILITY
- Amends eligibility for programs such that people who have been previously convicted of certain felony drug crimes can be considered as though they had a Class A misdemeanor.
- MANDATORY SUPERVISED RELEASE
- Changes rules on how mandatory supervised release terms are to be written into the sentencing order:
- Creates new, more nuanced tiers of mandated MSR terms by offenses for people convicted BEFORE December 12, 2005 (the effective date of Public Act 94-715)
- 3 years: first degree murder, criminal sexual assault of a child, aggravated criminal sexual assault, and criminal sexual assault
- 18 months (NEW TIER): most Class X felonies
- 12 months (WAS 2 yrs): most Class 1 and 2 felonies.
- NO SET MSR for Class 3 or 4 felonies, except:
- If PRB determines it is necessary, and if they do, must be under 12 months.
- For people serving at 85% per Truth in Sentencing, and others convicted after 1/1/2009,
- the term of mandatory supervised release shall be as follows:
- (A) Class X felony, 3 years;
- (B) Class 1 or Class 2 felonies, 2 years;
- (C) Class 3 or Class 4 felonies, 1 year.
- the term of mandatory supervised release shall be as follows:
- Creates new, more nuanced tiers of mandated MSR terms by offenses for people convicted BEFORE December 12, 2005 (the effective date of Public Act 94-715)
- Changes rules on how mandatory supervised release terms are to be written into the sentencing order:
- PLACE OF CONFINEMENT
- Expands IDOC ability to offer Electronic Detention (ED), ATC or other programs to some incarcerated people with less than 4 months time remaining.
- Applies to Class 3 and Class 4 felonies other than violent crime as defined in Section 3 of the Rights of Crime Victims and Witnesses Act.
- Amends definition of “home detention” to include clarification that confinement need not be 24 hours per day and may or may not include ED, and that ED is not required for the purposes of sentencing credit.
- Requires that at a minimum, any person ordered to pretrial home confinement with or without electronic monitoring must be provided with open movement spread out over no fewer than two days per week, to participate in basic activities (adds grocery shopping to list that includes work, medical, educational, and religious activities that are allowed).
- Clarifies that approval of changes in participant residence cannot be unreasonably withheld.
- Clarifies that a person who is on EM must remain in violation for at least 48 hours to be considered guilty of a Class 3 felony (rather than previous language that did not specify the length or seriousness of the violation).
- Expands IDOC ability to offer Electronic Detention (ED), ATC or other programs to some incarcerated people with less than 4 months time remaining.
PREGNANT WOMEN IN CUSTODY
- Adds section to provide training for corrections officials on treatment of pregnant women.
- Adds a section to provide education for pregnant women in prison.
- Adds a section to provide postpartum recovery time and support of at least 72 hours.
- Adds a section to provide that pregnant women or women who have given birth within 30 days cannot be placed in administrative segregation.
- Adds that women defined above cannot be placed in a bed more than 3 feet from the floor.
DEATHS IN CUSTODY
- Illinois Criminal Justice Information Authority (ICJIA) will be the agency collecting and reporting on deaths in custody. Makes it unlawful for law enforcement agencies to fail to report facts to ICJIA.
- ICJIA will create a standardized form to be used for the purpose of collecting information about persons who die in custody.
- Applies to prisons, jails, lock-ups, as well as to people who die as a result of a peace officer’s use of force.
- Creates a process for reporting and some standards around how investigations are to be handled, including timeframes for reporting (within 30 days).
- Next of kin of decedent must be notified “as soon as possible in a suitable manner giving an accurate factual account.”
- Creates a dedicated family liaison within IDOC to report developments.
The bill makes significant and ground-breaking changes to the pretrial system in Illinois, including the end of cash bail.
ABOLISHING MONEY BOND
- The abolition of money bond and its replacement with a robust new pretrial decision-making process will take effect on January 1, 2023. This delayed effective date was negotiated at the request of the Illinois Supreme Court and other system stakeholders to allow the courts time to transition to the new system. All other provisions of the bill, including the electronic monitoring changes, sentencing changes, changes to law enforcement’s ability to arrest & release for low-level misdemeanors, and working groups on data and pretrial practices, will go into effect on January 1, 2022.
- The bill creates a “detention eligibility net” and mandates release for many individuals from county jails.
- The bill raises standards for initial pretrial detention and reforms the process for violations of pretrial release conditions, among many other provisions.
RIGHT TO COMMUNICATE
- Creates tighter standards increasing detainee access to phone – mandates 3 calls within 3 hours of arrival rather than “reasonable time.”
- Gives detainees the right to retrieve phone numbers on their phone.
Much of the bill is related to policing, and we are not qualified to provide a strong analysis of this section of the legislation. We can list some of the provisions, however:
Creates the Statewide Use of Force Standardization Act to establish statewide use of force standards for law enforcement agencies.
Creates the Task Force on Constitutional Rights and Remedies to review available research, best practices, and effective interventions to formulate recommendations by May 1, 2021.
Some other provisions (not a complete list):
- Amends the State Police Act concerning discipline of Illinois State Police officers and the appointment of the Illinois State Police Merit Board.
- Amends the Illinois Police Training Act to increase training and outline processes for review.
- Creates the Illinois Law Enforcement Certification Review Panel to make recommendations on the decertification of law enforcement officers.
- Amends the Uniform Crime Reporting Act to require that the Illinois State Police make crime statistics available monthly and participate in the FBI use of force database.
- Amends Uniform Peace Officers Disciplinary Act to create an anonymous complaint policy.
The bill creates a new law to ensure legislative maps are drawn using incarcerated people’s last known address rather than their address in prison with the No Representation Without Population Act. Provides that:
- The State Board of Elections will have to prepare redistricting population data to reflect incarcerated persons at their residential address prior to incarceration.
- The language creates a mechanism for IDOC to electronically track “last known address.”
- Data will be the basis of the Legislative and Representative Districts required to be created pursuant to Section 3 of Article IV of the Illinois Constitution. Data will not be used for other purposes.
- Incarcerated populations residing at unknown geographic locations within the State will not be used to determine the ideal population of any set of districts, wards, or precincts.
Finally, the law amends the Crime Victims Compensation Act.
- Adds Attorney General as place people can apply for compensation (from just Court of Claims).
- Adds “anyone living in the household of a person killed or injured in a relationship that is substantially similar to that of a parent, spouse, or child” to the definition of victim.
- Amends “felon as victim” section to say that the victim’s criminal history or felony status can not automatically prevent compensation, but that no compensation may be granted to a victim while the applicant or victim is held in a correctional institution.
- Clarifies application process and allows people who applied before 1/1/2021 to re-apply.
ANSWERS TO YOUR QUESTIONS
We were unable to find answers to all of your questions between the last letter and writing this one. We are still trying to find out more information about IDOC’s tablet program, expanding video visit time frames, and more. We are not ignoring your questions, we just don’t have any answers yet. What we can answer, we have included below:
Many of you asked for the Clemency Tool Kit and info on Medical Releases, Early Release for Elderly:
This is an excellent time to consider a clemency petition. The Governor and the Prisoner Review Board have streamlined the clemency process. Clemency is literally the only proactive thing most folks can actually do to pursue release after serving many years in prison. Our colleagues at Illinois Prison Project (IPP) put together a toolkit to help loved ones of incarcerated people file. It is available here:
We included the 18 page document in our last newsletter. If you did not receive it and would like one, you can write to IPP directly and they will send it to you:
Illinois Prison Project, 53 W. Jackson, Suite 1056, Chicago IL, 60604.
The other two mechanisms for early release are Earned Discretionary Sentencing Credits (EDSC) and Electronic Detention. IDOC has the authority to grant good-time, up to 180 days, to people who are close to their out date (also known as MSR date). IDOC has already reviewed the more than 7,000 people who may have been eligible for EDSC in a pool consisting of class 2 – 4 felonies with under 6 months to go until their release, and as of mid-December, IDOC data shows that 2,547 made it through. Electronic detention is barely being used, and is a mixed bag, as you know.
Many also asked about visiting:
We have been on lockdown with no in-person visits since March 14, 2020. As the vaccine is offered to you this year – possibly as soon as February – and into 2021 – we will advocate for in-person visits to be reinstated as soon as possible. We realize many of you are worried visits will be somehow compromised. We will be working to the best of our ability to make sure that does not happen. You will remember that we worked with legislators to pass a law in 2018 ensuring every inmate is entitled to receive 7 in-person visits per month.
Several of you asked for more information on mental health and grievance issues:
For the most recent information on these issues we went to Alan Mills from Uptown People’s Law Center…
“Back in March, IDOC declared a “force majeure” as to our settlement agreement. Basically, that means that they aren’t able to comply because of some catastrophic act of nature. The pandemic surely counts. It is completely understandable that there are some things they cannot do—for example, it would make no sense to hold crowded group therapy sessions while the virus is spreading virtually unchecked. However, there are other things they should be doing—including increasing the number of one-on-one sessions and getting people out of their cells as much as possible. We attempted to bring these matters before the Court in the Rasho case. However, the judge ruled that he would not hold a hearing on our motion until after the 7th Circuit Court of Appeals rules on whether the injunction the judge entered in the Spring of 2019 is constitutional. We continue to meet with the IDOC and the monitor to try and get as many improvements as we can.
We know the entire grievance system is a mess But people need to know that if they have tried to file grievances, and simply can’t get a response, they are allowed to go to court. They should, however, keep careful records of the attempts they have made to follow the process.”
There were also some questions about Pell grants. We’ve included an article at the end of the newsletter that we hope will give you some insight.
U.S. Supreme Court
On November 3, the U.S. Supreme Court heard arguments in Jones v. Mississippi, to address what states must do (really, what judges must do) before imposing a JLWOP sentence. The arguments turned largely on how the Court should interpret two other Supreme Court cases: Miller v. Alabama, which deemed sentencing schemes that mandate life without parole for certain juvenile offenders unconstitutional, and Montgomery v. Louisiana, which made the Miller rule apply retroactively. Brett Jones was sentenced to life without parole — the state’s mandatory sentence for murder — after he killed his grandfather in August of 2004, less than a month after his 15th birthday. After Miller was decided, the Supreme Court of Mississippi decided that its holding should apply to Jones’s case and ordered resentencing. The judge at resentencing upheld Jones’s previous sentence after taking the “Miller factors” into account.
Jones argues that the judge who resentenced him operated under a fundamental misunderstanding of Miller because he failed to find that Jones was “permanently incorrigible” before sentencing him to life without parole. The State of Mississippi, meanwhile, argues that Miller merely required that a sentencing court take into account how the qualities of youth counsel against sentencing children to a lifetime in prison, and that a finding of “permanent incorrigibility” is just “one way of testing the sentence’s proportionality.”
The argument (held via telephone) took almost an hour and a half and there is no predicting how the Court will rule. That is particularly true as this was one of the first cases heard by the newest appointee, Justice Barrett (whose questions were not very revealing of how she was thinking about the case). Some judges did seem to suggest that what happened in the resentencing hearing was enough, but others left open the possibility that some kind of permanent incorrigibility finding may be necessary before imposing such a sentence. A decision in the case is expected sometime this year.
As we wrote before, it is not clear what this decision might mean for Illinois. A win for Brett Jones may open up some possible pathways to challenge life sentences imposed without a specific finding of permanent incorrigibility. We really must wait to read a decision from the Court (win or lose) to see if there will be any impact on the existing decisions in Illinois.
Illinois Supreme Court
On October 22, in People v. Lusby, the Illinois Supreme Court concluded that a 2002 sentencing hearing of a 16-year-old passed constitutional muster under Miller because the trial court mentioned Mr. Lusby’s youth twice (once in reference to the fact that his age made him ineligible for capital punishment), considered the presentence investigation report, and concluded that the defendant showed “absolutely no respect for human life” and that the crimes were “clearly depraved.” The majority determined that Mr. Lusby’s discretionary de facto life sentence was constitutional, finding that there was some evidence on each of the Miller factors available for consideration, reversing the appellate court’s judgment.
A bright spot of the decision was Justice Neville’s vigorous dissent. He powerfully called out the majority for overlooking the constitutional presumption against the imposition of such sentences for juveniles and noted that the majority’s oversight of this fundamental principle that JLWOP sentences are “rare” and “uncommon” skewed the majority’s analysis. The trial court’s failure to acknowledge this presumption, he said, renders the sentencing hearing unconstitutional. Justice Neville also affirmed that a “trial court’s mere awareness of a juvenile defendant’s age and consideration of a Pre Sentencing Interview does not show that the court considered the defendant’s youth and attendant characteristics.” Not unlike the Holman decision, the Court found a way to affirm a pre-Miller sentencing hearing by concluding that the original sentencing court had adequately considered the Miller factors to conclude that the defendant was “incorrigible and a life sentence was appropriate.”
Mr. Lusby’s attorney has filed a Petition for Rehearing asking the Illinois Supreme Court to reconsider its decision, or at least hold the case until the U.S. Supreme Court’s decision in Jones, discussed above. The Court has not ruled on that petition yet.
Pending cases in the Illinois Supreme Court:
People v. Antonio House – The briefing process continues for Mr. House. The First District Appellate Court has twice found the life sentence that Mr. House is serving for an offense that occurred when he was 19 years old to be unconstitutional. The State has asked the Illinois Supreme Court to reject the appellate court’s conclusion. The Illinois Supreme Court is ultimately being asked whether there is enough evidence in the record to support an “as-applied” Illinois Constitutional challenge. There is some hope that the Court’s decision could provide some clarity about the method and manner for raising emerging adult challenges to lengthy sentences in Illinois. We expect argument will occur sometime in 2021.
People v. Derrell Dorsey – In Dorsey, the Court will answer whether the 14-year-old defendant’s consecutive sentences of 40, 18, and 18 years, for an aggregate sentence of 76 years, is a de facto natural life sentence, where Mr. Dorsey’s eligibility for day-for-day credit may lead to release after 38 years. This case will likely answer what is called the Peacock issue – which itself is clarifying the reach of the Buffer decision that found that any sentence more than 40 years is a life sentence for juveniles. Dorsey will allow the Court to answer whether that means 40 actual years, or whether you should ignore possible sentence credit and just look at the number of years imposed by the original sentencing court. The opening brief was filed in August and the State has not filed its brief yet. Briefing should conclude and argument should happen in 2021.
People v. Robert Christopher Jones – In Jones, the Court is asked to answer whether a defendant who, before Miller and Buffer were decided, agreed to plead guilty in exchange for a de facto life sentence for an offense that occurred when they were a juvenile, should now be able to challenge that sentence in a post-conviction petition and seek a new sentencing hearing where youth is adequately taken into account. The Court just accepted this case in November, briefing will begin next year.
Illinois Appellate Courts
The major headline is that in August 2020, Dimitri Buffer received a new sentence of 25 years.
Many individuals who were serving more than 40 years (for offenses that occurred before they turned 18) have been remanded for new sentencing hearings.
In at least two cases, the appellate court itself has reduced sentences: People v. McKinley, 2020 IL App (1st) 191907 (individual with a de facto life sentence, resentenced to 39 years; appellate court reduced to 25 years); and People v. Hill, 2020 IL App (1st) 171739 (individual originally sentenced to life plus a consecutive 30, resentenced to 54 years with 6 years consecutive; appellate court reduced murder sentence to 34 years with 6 years consecutive).
The above two decisions are also noteworthy as instances in which appellate courts are continuing to monitor resentencing hearings that have occurred after Miller. In these cases, the appellate courts decided the sentencing courts still did not adequately consider the individual’s youthful characteristics in coming up with a sentence. Another example of this can be found in People v. Dicorpo and Henney, 2020 IL App (1st) 172082 (remanding for a new sentencing hearing to happen “speedily” and encouraging the sentencing judge to “look closely at Buffer”).
We are aware that the State continues to ask the Illinois Supreme Court to review resentencing decisions. This is happening most often when the individual is serving a sentence greater than 40 years, but the individual is eligible for good time credit. Essentially, the State is saying these decisions should be put on hold while we wait for the Illinois Supreme Court’s Dorsey decision.
Emerging adult decisions
As discussed above, the Illinois Supreme Court may provide further guidance on this issue in the House case. Some appellate courts have tried to outline what a “Harris” claim should entail:
“When young adults raise claims that the Miller line of cases applies to them, we read our supreme court’s precedents to set out the following procedure:
(i) under Harris, a young adult defendant must plead, and ultimately prove, that his or her individual characteristics require the application of Miller;
(ii) if, and only if, the young adult makes this showing, then the trial court considers whether the initial sentencing hearing complied with Miller, following our supreme court’s guidance in Holman and the analysis in Croft; and
(iii) if the initial sentencing hearing was Miller-compliant, then the trial court can reject the defendant’s claim (as the courts did in Holman and Croft); or if the initial sentencing hearing was not Miller-compliant, then the trial court should order resentencing.”
People v. Johnson, 2020 IL App (1st) 171362, ¶ 25; see also People v. Ruiz, 2020 IL App (1st) 163145, ¶ 52.
There is a divide within appellate districts and among appellate districts as to who may get relief for an emerging adult claim. It is not clear that anyone 18 or older has received a new sentencing hearing under an Illinois constitutional challenge that their youth was not adequately considered at the original sentencing hearing. But many appellate court decisions are allowing claims to be further developed in post-conviction proceedings. Many of the good decisions are coming out of the First District and there are some decisions rejecting these arguments in the Second, Fourth, and Fifth Districts. Compare People v. Ruiz, 2020 IL App (1st) 163145; People v. Minniefield, 2020 IL App (1st) 170541. First District courts sometimes also look to the record to determine whether a claim should advance. People v. Daniels, 2020 IL App (1st) 171738 (where appellate court even willing to look to the record to see whether the petitioner’s individual circumstances corroborate their pro se petition’s general pleadings, even when those circumstances aren’t specifically pled in the petition); with People v. Moore, 2020 IL App (4th) 190528 (acknowledging that the record showed the defendant’s behavior was influenced by his difficult upbringing, as he “was abandoned by his father at a young age, and . . . his mother struggled with drug addiction and keeping her children fed,” but denying leave to file because “th[o]se factual allegations were missing from defendant’s motion to file a successive post conviction petition”); People v. White, 2020 IL App (5th) 170345, ¶ 24 (denying leave to file a successive petition that “generally assert[ed] studies that show that sometimes youthfulness can extend into a person’s twenties,” because it did not “allege how he was particularly affected by immaturity”). The Second Appellate District has also shown some hostility to these claims in People v. LaPointe, 2018 IL App (2d) 160903, and People v. Hoover, 2019 IL App (2d) 170070. In both cases, the Court found petitioners could not establish cause and prejudice on their claims.
While we are heartened when we see decisions like People v. Jakeen Savage, 2020 IL App (1st) 173135 (permitting further post-conviction proceedings on a challenge to a life sentence for a 21 year old) and People v. Darione Ross, 2020 IL App (1st) 171202, there are many decisions out of the First District that have rejected these same emerging adult claims. See, e.g., People v. Carrion, 2020 IL App (1st) 171001, ¶¶ 30-33; People v. Gomez, 2020 IL App (1st) 173016, ¶¶ 37-38; People v. McClurkin, 2020 IL App (1st) 171274, ¶¶ 20-23; People v. Handy, 2019 IL App (1st) 170213, ¶¶ 40-41.
Other challenges for youthful offenders
People v. Womack, 2020 IL App (3d) 170208 – Following a 2006 shooting when he was 16 years old, Womack was convicted of attempt murder and sentenced to 18 years imprisonment, plus a mandatory 20 years for personal discharge of a firearm. The trial court denied Womack leave to file a subsequent post-conviction petition; his petition argued his sentence violated the proportionate penalties clause by virtue of the mandatory firearm enhancement.
A majority of the appellate court found that Womack had met the cause and prejudice test, and it remanded for stage-two proceedings. Relying on People v. Barnes, 2018 IL App (5th) 140378 and People v. Aikens, 2016 IL App (1st) 133578, the majority concluded that mandatory firearm enhancements for youth “no longer reflects Illinois’s evolving standard of decency.” The majority also relied on recent legislative changes to 730 ILCS 5/5-4.5-105, which both require courts to consider the specific mitigating factors of youth at sentencing and render firearm enhancements discretionary for youth. Although these statutory changes don’t apply retroactively, the majority noted they are an additional indicator of evolving standards of decency.
The cause prong of the cause-and-prejudice test was satisfied because Barnes and Aikens were not yet decided when Womack filed his first post-conviction petition. And prejudice was satisfied because the application of a mandatory firearm enhancement violated the proportionate penalties clause in his case. Like the youth in Barnes and Aikens, Womack has no prior criminal history and additional mitigating factors were present. Furthermore, the shooting occurred during a tense exchange “that resulted in the impulsive and reckless decision-making behavior to which young minds are more susceptible.”
But for every good decision, be aware of the possible bad:
People v. Woods, 2020 IL App (1st) 163031 – Roscoe Woods was convicted of attempt murder for a 2006 shooting of a police officer when he was 17 years old, and he was sentenced to 8 years, plus a mandatory 25-year mandatory firearm enhancement. The trial court denied Woods leave to file a subsequent post-conviction petition that raised an as-applied proportionate penalties challenge to the firearm enhancement that was rooted in Miller and Buffer. The appellate court affirmed. It found Roscoe’s reliance on Miller and Buffer was misplaced, as he wasn’t serving a life sentence. It noted that the Illinois Supreme Court previously rejected a shocks-the-conscience challenge to enhancements in People v. Sharpe, 216 Ill.2d 481 (2005) and that the 1st District later extended Sharpe to youth in People v. Wilson, 2016 IL App (1st) 141500. While the Legislature and Governor made firearm enhancements discretionary for youth, the court ruled these statutory changes were insufficient to say mandatory enhancements are unconstitutional for all youth.
CALLS TO ACTION
On September 15th, our sister organization, Restore Justice Illinois (RJI), which can do some political work, held a “Day of Action.” Volunteers reached out to State’s Attorney and General Assembly candidates from across Illinois to ask them to fill out a survey regarding criminal legal reforms. Using their answers, RJI endorsed some candidates. RJI endorsed Eric Rinehart for Lake County State’s Attorney, and he won; RJI hopes Eric will bring some much-needed compassion and fairness to the office.
On November 6th, we held a “Day of Action” with family members, board members, and advocates. We started the day with a video call explaining the process and our goals. Our “Big Ask” was for IDOC to test every incarcerated person for COVID-19, rather than just those who might have symptoms. All public health experts have said that before the vaccine, this is the only way to really get a handle on the virus and protect people. To accomplish this we asked that everyone make four phone calls: one to IDOC in Springfield, one to the Governor’s Office, and the other two to their State Representative and State Senator. We felt IDOC could not begin to address things like restoring yard, commissary, or visits until they know how widespread the virus is. In December, IDOC began widespread testing; testing will continue until the virus is stopped.
On January 15th, we hosted another “Day of Action,” again with family and friends. We made calls about IDOC plans to begin vaccinations and what the expected timeline might be.
Please ask your people to contact us if they want to join our next Day of Action!
They can find out more on our website: restorejustice.org
Other Updates for your Loved Ones:
CRIIC – COMMUNITIES & RELATIVE OF ILLINOIS INCARCERATED CHILDREN –
Please invite your family and friends to join us. Our 2021 meetings will be held on:
- February 9th – 1:00 to 2:00pm – via Zoom video call: A representative from Illinois Prison Project will talk about clemency filings.
- March 9th – 1:00 to 2:00pm – via Zoom video call: Dan Johnson, Restore Justice Illinois’ Lobbyist will update us on recent legislation, as well as how we can help.
- April 13th – 1:00 to 2:00pm – via Zoom video call
- May 11th – 1:00 to 3:00pm – TBD
- June 8th – 1:00 to 3:00pm – TBD
- July 13th – 1:00 to 3:00pm – TBD
- August 10th – 1:00 to 3:00pm – hopefully in person at “Art on 51st” (1238 W. 51st St.)
- September 14th – 1:00 to 3:00pm – “Art on 51st”
- October 12th – 1:00 to 3:00pm – “Art on 51st”
- November 9th – 1:00 to 3:00pm – “Art on 51st” (Christmas Card photos and signing)
- December 14th – 1:00 to 3:00pm – “Art on 51st”
When we resume meeting in person, the meetings will be at “Art on 51st,” located at 1238 W. 51st Street in Chicago. We will serve lunch and post information on the discussion topics in advance. We hope to be able to resume meetings in August, but, of course, that depends on the pandemic.
Support for Court
Do you have an upcoming court date? If you need support and want someone to be in the courtroom, physically or in “Zoom” court, let us know. We will do our best to accommodate.
From the Desk of Jobi Cates – Executive Director
The most “top of mind” topic for me these days continues to be COVID-19. My family has been very lucky so far. While my son did contract the illness, he recovered and is doing very well. My parents, who are in their late 80s, have so far stayed safe by basically staying home in their retirement community; I will breathe a major sigh of relief when they are finally able to receive their vaccine shots. (The first one is supposed to be administered tomorrow.) Before COVID, my family had two major activities together: visiting my parents and family on the east coast, and visiting our small handful of loved ones in prison. We miss being with our people so much, and we know you do, as well. I see the vaccine as the fastest track to being able to get back in the car and visit with the people we love!
As you have no doubt seen on the news, older people and those with existing conditions are scheduled to get the vaccine in the first priority group, as they suffer the worst consequences. I am thrilled that Illinois is offering the vaccine to YOU at the same time as those high-priority seniors. … We are hearing you should be offered the vaccine relatively soon, perhaps as soon as February. People in IDOC – you – have suffered so much from COVID, even if you have not been ill, because of the impact on your day to day lives. My sincere hope is that if enough of us take the vaccine, we can start getting back to a more normal life, which includes visits.
I’m sure you all have a lot of questions about the vaccine, and I am sure that there are loads of rumors. I have been nerdy about reading “the science” as much as I can, checking with both the Centers for Disease Control and the World Health Organization for the facts. So far, I am convinced that Dr. Ezike, Illinois’ Director of Public Health, has steered us straight on everything, including the vaccine. I’ve included a “Q & A” from the CDC at the end of this letter in case you want to read a little more on your own.
This has been such an emotional month on so many levels – regardless of your political affiliation, the election and surrounding national chaos really sent us all for a loop. Between that and the toll the virus is taking, being disconnected from family and friends, I can really only imagine how difficult your lives have become in prison, and I want you to know myself and our entire team at Restore Justice think about you every day, all day, in the hope that our efforts will meet with some success.
Thank you for your letters and for your courage. Warmly, Jobi
From the Desk of Julie Anderson, Outreach Director
Greetings; Although my New Years was quiet this year, I have never been more thankful to see the beginning of a New Year – Welcome 2021. It’s been a tough year for all of us, especially for all of you. Resilience is what defined 2020, but more importantly, it will be what takes us forward. My hope for 2021 is that we can work on some great legislation to reduce sentences and also to make things a little better for you – our loved ones. I also hope the virus will soon be stopped and we can resume in-person visits. I never realized how much I would miss traveling to visit prison, I miss the long 4 hour talks, the terribly expensive junk food from the machines and even the long drives. Since covid 19 has taken over all of our lives, my “screen time” has increased by 200%. I know many of you have tablets and your own screen time has increased significantly. Please know you are my thoughts and everything we do here at Restore Justice is done to help as many individuals as we can and to “do no harm” to anyone, what that means is, if we think passing a law will help some people, but may harm others who are currently in court or have cases pending, we will not proceed. We do our best to try and anticipate any unintended consequences from legislation that we work on. Here’s to a 2021 filled with hope and hopefully improvements. Once again thank you all for reaching out to us and please invite your family and friends to join our family group, when we work together, we can accomplish great things. Together we will be heard.
From the Desk of Alissa Rivera, Communications Manager
We successfully hosted our first ever virtual fundraising event in December. My incredible co-workers, Julie, Wendell, and Nelson bravely shared their stories. I am in awe of them.
As we begin this new year, I am thinking about all of you. You guide our work. We will keep fighting for better COVID protections, and we will also keep advocating to fix Illinois’s cruel sentencing laws.
Thank you, always, for being part of the Restore Justice family. We’re grateful for you!
From the Desk of Wendell Robinson, Program Manager
As always, I give it to you as I see it. So with this entry I’ll be speaking about HOPE!
Knowing some of you are up against some extreme odds, I can’t applaud you enough for how you’ve managed to keep your resilience in hand. I chose to speak about hope for a number of reasons, but, the main reason is that since I last wrote I had the opportunity to be at the front gates for three individual releases (all from separate institutions). Each of these guys did 29 years.
We picked up the last person on December 9. On this particular night, six of us went and had dinner. As I looked around the table, it hit me like a ton of bricks. At one point in time, every person at the table had a life sentence (Natural Balls, Elbows). (Among the six, five were JLWOP, and two were wrongfully convicted.) To know in that moment what every person at that table had overcome was electrifying. Can you imagine being in that space? Can you imagine what that energy felt like?
I share this moment with you not in a braggadocious manner. But simply put, I need you to know that HOPE is real, HOPE is alive, HOPE is well! So until next time, please keep HOPE in your possession.
Forever in solidarity
From the desk of Alice Swan, Office Manager
Happy New Year to all–here’s hoping that 2021 brings a better world than we had in 2020. I am really hoping that the rolling out of vaccines means that in-person visiting can resume before long. I miss seeing people in real life, and I’m sure you all do too.
I’m excited for what the new year will bring to Restore Justice also–working virtually for almost a year has been a bummer in many ways, but in many ways our team is closer and stronger than ever because of it. We hope that the pandemic will soon be under control and prisons become safer so that our focus can shift back to sentencing reform.
From the Desk of Nelson Morris, Program Associate
Hello, I am Nelson Morris the Project Associate for Restore Justice. And I am looking forward to this new opportunity that has come with this new year, like fighting for your well being and best interest. I know first hand these are hard times. keep your head up and stay strong.
From the Desk of Kayla Rueda, Policy Associate
I will echo what my team has already said above – Happy New Year to you! Like many, I am hoping this year will bring positive change and better news ahead. It has been a wild ride since starting with the RJ team last January. Unfortunately, the pandemic hit and I was unable to join the rest of the team on their visits to all of you. Hopefully, those can resume soon so that I can join them!
I’m looking forward to the work Restore Justice will be doing in the next year to continue our advocacy efforts and change sentencing laws in Illinois.
From the Desk of Willow So – Intern
Happy New Year everyone! I hope that 2021 brings in more positivity for all. I’ve only been working here a short while but am in deep admiration of everyone on the team for all of the work they put in. Hopefully once conditions improve, I’ll get to join in on the team visits to all of you. I’m looking forward to continuing to work with Restore Justice and advocating for sentence reform.
FROM THE CDC WEBSITE ON COVID-19 VACCINES
Are COVID-19 vaccines safe?
All the COVID-19 vaccines being used have gone through rigorous studies to ensure they are as safe as possible. Systems that allow CDC to watch for safety issues are in place across the entire country. The U.S. Food and Drug Administration (FDA) has granted Emergency Use Authorizations for COVID-19 vaccines that have been shown to meet rigorous safety criteria and be effective as determined by data from the manufacturers and findings from large clinical trials. Clinical trials for all vaccines must first show they meet rigorous criteria for safety and effectiveness before any vaccine, including COVID-19 vaccines, can be authorized or approved for use. The known and potential benefits of a COVID-19 vaccine must outweigh the known and potential risks of the vaccine.
Can a COVID-19 vaccine make me sick with COVID-19?
No. None of the authorized and recommended COVID-19 vaccines or COVID-19 vaccines currently in development in the United States contain the live virus that causes COVID-19. This means that a COVID-19 vaccine cannot make you sick with COVID-19.
There are several different types of vaccines in development. All of them teach our immune systems how to recognize and fight the virus that causes COVID-19. Sometimes this process can cause symptoms, such as fever. These symptoms are normal and are a sign that the body is building protection against the virus that causes COVID-19. Learn more about how COVID-19 vaccines work.
It typically takes a few weeks for the body to build immunity (protection against the virus that causes COVID-19) after vaccination. That means it’s possible a person could be infected with the virus that causes COVID-19 just before or just after vaccination and still get sick. This is because the vaccine has not had enough time to provide protection.
After getting a COVID-19 vaccine, will I test positive for COVID-19 on a viral test?
No. Neither the recently authorized and recommended vaccines nor the other COVID-19 vaccines currently in clinical trials in the United States can cause you to test positive on viral tests, which are used to see if you have a current infection.
If your body develops an immune response—the goal of vaccination—there is a possibility you may test positive on some antibody tests. Antibody tests indicate you had a previous infection and that you may have some level of protection against the virus. Experts are currently looking at how COVID-19 vaccination may affect antibody testing results.
If I have already had COVID-19 and recovered, do I still need to get vaccinated with a COVID-19 vaccine?
Yes. Due to the severe health risks associated with COVID-19 and the fact that re-infection with COVID-19 is possible, vaccine should be offered to you regardless of whether you already had COVID-19 infection. CDC is providing recommendations to federal, state, and local governments about who should be vaccinated first.
At this time, experts do not know how long someone is protected from getting sick again after recovering from COVID-19. The immunity someone gains from having an infection, called natural immunity, varies from person to person. Some early evidence suggests natural immunity may not last very long.
We won’t know how long immunity produced by vaccination lasts until we have more data on how well the vaccines work.
Both natural immunity and vaccine-induced immunity are important aspects of COVID-19 that experts are trying to learn more about, and CDC will keep the public informed as new evidence becomes available.
Will a COVID-19 vaccination protect me from getting sick with COVID-19?
Yes. COVID-19 vaccination works by teaching your immune system how to recognize and fight the virus that causes COVID-19, and this protects you from getting sick with COVID-19.
Being protected from getting sick is important because even though many people with COVID-19 have only a mild illness, others may get a severe illness, have long-term health effects, or even die. There is no way to know how COVID-19 will affect you, even if you don’t have an increased risk of developing severe complications.
Will a COVID-19 vaccine alter my DNA?
No. COVID-19 mRNA vaccines do not change or interact with your DNA in any way.
Messenger RNA vaccines—also called mRNA vaccines—are the first COVID-19 vaccines authorized for use in the United States. mRNA vaccines teach our cells how to make a protein that triggers an immune response. The mRNA from a COVID-19 vaccine never enters the nucleus of the cell, which is where our DNA is kept. This means the mRNA cannot affect or interact with our DNA in any way. Instead, COVID-19 mRNA vaccines work with the body’s natural defenses to safely develop immunity to disease. Learn more about how COVID-19 mRNA vaccines work.
At the end of the process, our bodies have learned how to protect against future infection. That immune response and making antibodies is what protects us from getting infected if the real virus enters our bodies.
Article by Sara Weissman, published in “Diverse Issues In Higher Education” on December 31, 2020.
As Congress’s stimulus package heads to the president’s desk for signing, the legislation has major implications for students in prison.
Notably, the bill pushed forward on Dec. 21 moves to end a 26-year ban on Pell grants for incarcerated students, a major victory for students and their advocates after years of activism.
The reversal “will increase access to opportunity for people leaving prison, in terms of their career paths and their ability to take care of themselves and their families post-release,” said Margaret diZerega, who directs the Center on Sentencing and Corrections at the Vera Institute of Justice, a nonprofit for criminal justice reform. “Really it’s an equity issue also, given the disproportionate number of Black and brown people in prison.”
In recent years, restoring Pell grants to incarcerated students has enjoyed rare bipartisan support. The Second Chance Pell Experiment – a pilot program allowing some incarcerated students to access Pell grant funding – began under former President Barack Obama and expanded under President Donald J. Trump.
Thanks to the program, “there are more members of Congress who are interacting with the colleges, the corrections departments and the students in these programs,” diZerega said. “We saw several members attend graduations in prisons or go visit prison programs. And I think being proximate to the students and the faculty and the corrections staff that make these programs possible, people see how transformative they are.”
Historically, incarcerated students lost access to Pell grants as a part of the 1994 crime bill. The legislation wasn’t only a hit to college affordability for students in prison. It also cut down their options for higher education programs.
Without federal funding toward tuition, “the drop in the availability of college programs in prison was dramatic,” said Dr. Bradley Custer, senior policy analyst for postsecondary education for the Center for American Progress, a left-wing think tank.
The programs that persisted found other sources of funding – like private funds or state funds – but now “we have this opportunity to have a steady, secure stream of federal funding that students can rely on, just like non-incarcerated students with financial need can rely on.”
He expects to see more colleges and universities developing courses and degree programs for incarcerated students, and he praised the legislation for including standards to ensure students receive quality education options. For example, colleges have to be accredited private or public nonprofit institutions approved by the state and programs need to report data to the secretary of education, who in turn will report to Congress.
“This was not just a simple ‘let’s remove the ban,’” Custer said. “[These schools] have to be able to provide programs that lead to careers where students are not going to be denied a license because of their criminal background. A lot of thought was put into which types of colleges and programs do we want offered in exchange for Pell dollars.”
The end of the Pell grant ban isn’t the only measure in the stimulus package that’ll benefit incarcerated students. It also removes a 1998 law that barred students with drug convictions from eligibility for financial aid, enforced through a question on the FAFSA. In 2006, Congress narrowed the law – and the FAFSA question – only temporarily removing financial aid from current students convicted of drug offenses. Still, the application question confused students and hundreds lose aid every year, either because of actual drug convictions or because they leave the question blank.
It was a “bit of a nightmare,” Custer said. “The new bill completely deletes that law. There’s no ifs, ands or buts about it anymore,” and the question will no longer appear on the FAFSA.
He pointed out that the measure isn’t perfect. Under the 1988 Anti-Drug Abuse Act, students convicted of drug offenses can still have federal benefits taken away from them, including student aid. That’s a hole that needs fixing, but he thinks “this helps a lot more people than it leaves behind.”
The bill also re-extends the Pell grant to those confined for psychiatric treatment for sexual offenses under state civil commitment laws. Before 2008, these students could use the Pell grant toward correspondence courses, where faculty could send reading and assignments to their facilities.
Meanwhile, some measures not specifically designed for incarcerated students will help them nonetheless, like shortening the FAFSA. Notably, the bill removes the question about whether applicants are registered for selective service, a known barrier for incarcerated students, who have a harder time registering or proving they’ve registered from prison, Custer noted.
Despite these inroads, advocates say the work of ensuring affordable higher education for students in prison is far from over.
DiZerega’s focus is now on ensuring “implementation goes well and that it happens with a sense of urgency,” she said, “because people in prison have been waiting a long time for this ban to be lifted,” she said. “We and others want to make sure they don’t have to wait any longer than necessary.”