As Illinois' only non-partisan prison watchdog, the John Howard Association (JHA) believes that the state needs to do everything in its power to use evidence-driven laws, policies, and practices to address Chicago's epidemic of gun violence. This must include the appropriate use of the state's prison system, particularly for the serious offense of illegal gun possession.
However, as we debate how we should use prison, we should do so with a clear understanding that the deeper we send a person into the justice system, the more we trade the possibility of the long-term benefit of rehabilitation for the short-term effect of incapacitation. This is an important fact about prisons, which is often lost when it comes to making criminal justice law and policy. There is nothing magical about a prison cell. It can restrain a person who poses a violent risk to public safety, but it is extremely expensive and difficult to try to make it do anything else. As the vast majority of people who go to prison eventually return to our communities, we need to answer the following question as we consider creating longer criminal sentences for any offense, including illegal gun possession: Is this the most effective use of our limited resources to get us the results that we all want, which are safer communities?
With the support of Chicago's Mayor Rahm Emanuel, HB2265 was recently introduced in the Illinois General Assembly with the goal of imposing a mandatory three-year minimum prison sentence for people convicted of illegal use of a weapon, which in the Illinois Criminal Code is called Unlawful Use of a Weapon (UUW). This proposal would radically change current law, which allows judges to use their discretion both to sentence these offenders to state prison for several years, but also, if they deem it to be appropriate, to employ cost-effective alternatives to incarceration, like Cook County's Correctional Boot Camp Program, which is a national model that is proven to be far more effective at reducing recidivism than jail or prison.
As JHA's executive director argued in a recent op-ed in the Chicago Tribune, we are strongly opposed to Emanuel's proposal because we believe not only that it will fail to decrease gun violence and create safer communities, but also that it will have profound unintended negative consequences. Based on the most complete fiscal analysis available of HB2265, which was conducted by the bipartisan Illinois Sentencing and Policy Advisory Council (SPAC), it is clear that this bill will cost Illinois taxpayers hundreds of millions of dollars, which means fewer resources that could be used on things that are proven to prevent crime. For instance, Mayor Emanuel is reportedly planning to cut 10 percent of Chicago Police Department's budget. There is no question that the hundreds of millions of dollar that it will take to expand Illinois' prison population under HB2265 would be far better spent on hiring more police officers to patrol the streets of Chicago. In a 2013 New York Time's story, which summarized research that shows how "Prison Population Can Shrink When Police Crowd the Streets," reporters noted that Jens Ludwig, the Director of the University of Chicago Crime Lab, and Philip J. Cook, a Duke University economist, have shown that "money diverted from prison to policing would buy at least four times as much reduction in crime. They suggest shrinking the prison population by a quarter and using the savings to hire another 100,000 police officers." HB2265 will not only rob us of resources that could be put to much more effective use to control crime. Based on an overwhelming consensus of nearly every credible non-partisan policy group that has ever examined the effect of mandatory minimums, including the National Academy of Sciences, it is also clear that HB2265 will not deter people from committing crimes.
Despite this consensus, the University of Chicago's Crime Lab, which, according to its website is dedicated to using "insights from basic science to help government agencies and non-profit organizations develop innovative new approaches to reducing violence," takes a different view. In a memo published on its website, the Crime's Lab Director argued that he expects HB2265's mandatory minimums to lead to more consistent, swift, and certain punishments for UUW offenses, deterring people from illegally carrying guns that would otherwise be used in shootings, thus reducing the number of people who are sent to prison and the costs of their incarceration.
This is an old argument that has never worked for two primary reasons. First, while there is no doubting the fact that the justice system and the threat of prison has a deterrent effect, research and decades of over-incarceration in the United States have demonstrated that the threat of longer prison sentences does not lead to more deterrence, just more prisoners serving longer sentences. Even the Crime Lab and its Director have acknowledged throughout their work that severe punishments, like long prison sentences, undermine crime control. It is true that, along with its recent memo in support HB2265, the Crime Lab's Executive Director recently argued in a Chicago Sun-Times' story that Illinois should not try to rehabilitate offenders convicted of UUW offenses with alternative sentences like Cook County's Boot Camp Program, saying "we should be treating illegal gun carrying like the violent crime it is. If violent offenders aren't eligible for boot camp, I don't know why UUW offenders would be." However, the Crime Lab came to a very different conclusion in its 2009 report "Gun Violence Among School Age Youth in Chicago." It argued: "We would do society as a whole and the youth themselves a favor by making far greater use of swifter, less severe punishments for infractions like gun carrying, including intermediate sanctions like community service or more stringent probation conditions." Similarly, "More Prisoners Versus More Crime is the Wrong Question," a Brooking Institute policy paper co-authored by the Crime Lab's Research Director in 2011, recommended the following: "The resources currently dedicated to supporting long prison sentences should be reallocated to produce swifter, surer, but more moderate punishment. This approach includes hiring more police officers[.]" It is difficult to reconcile these conclusions, but the overwhelming body of research and evidence supports the more measured approach the Crime Lab took in 2009 and that its Director took in 2011 and throughout his body of work.
The second problem with the Crime Lab's support of HB2265 is that while mandatory minimums stem from a wish to impose order and certainty on the justice system, they have the opposite effect, creating disorder and uncertainty. This is the flaw that undermines all mandatory minimum schemes: Mandatory minimums are intended to remove the uncertainty that stems from the exercise of discretion, but they never work that way and instead simply take that discretion away from judges and give it to prosecutors, who become effectively responsible for charging and sentencing. As the great criminologist Norval Morris once explained, in the court system "discretion [is] like matter . . . it cannot be destroyed, it can only be displaced." The displacement of discretionary power onto prosecutors creates significant problems. While judges exercise discretion openly from the bench, and their decisions are reviewable by higher courts, prosecutors decide how to charge offenders in their offices, and their charging decisions are unreviewable. In an article for the University of Chicago's journal Crime and Justice, which surveyed 200 years of findings on mandatory minimum sentences and found them completely ineffective and counterproductive, law professor Michael Tonry noted that mandatory minimums have produced "wide disparities between cases that are comparable in every way except how they were handled." In this way, mandatory minimums undermine the integrity of the justice system by weakening the role of judges in determining proper punishments, increasing the powers of prosecutors beyond their proper roles, and driving record high prison populations, which have had a devastatingly disproportionate impact on minorities and the communities that are experiencing the most violence.
But what about the offender who could have been sentenced to prison, but instead is given probation or some alternative sentence like boot camp and goes on to commit a heinous crime? Even if mandatory minimums for illegal gun possession have negative and costly unintended consequences, wouldn't we all be better off if such offenders were in a prison cell instead of being free to hurt people?
The justice system needs to hold all offenders convicted of illegal gun possession accountable based on the best information available, balancing the goals of incapacitation and rehabilitation. However, the reality is that no one in the justice system can ever predict with certainty if and when a released offender will commit another crime, regardless of how long he was sentenced to prison.
The question the public and lawmakers need to address is who would you rather meet on the streets of Chicago: A recently released parolee who has spent three mandatory years in Illinois' overcrowded and under-resourced prison system, or an offender who has completed an intensive evidence-based alternative sentencing program that is proven to reduce recidivism?
JHA opposes HB2265 because we agree with the consensus of experts and practitioners who have found that the wise use of judicial discretion is more effective at preventing crime than mandatory minimum sentences. At the same time, it is clear that Mayor Emanuel's administration and its supporters will continue to lobby for HB2265. JHA would therefore like to recommend two amendments. First, as supporters have argued that the costs of HB2265 will be minimal and that mandatory minimums could even save taxpayer money by deterring crime, JHA proposes that the City of Chicago should pay for the costs of increased incarceration that stem from the bill, which would otherwise fall entirely on the state. Second, if supporters believe that the law will work, they should demand a three-year sunset be placed upon the bill. This would allow analysts to isolate and evaluate its impact. In three years, if the evidence shows that HB2265 works in the way that the Crime Lab argues it will, no one will oppose re-authorizing it, including JHA.