Illinois governor Bruce Rauner last week issued an executive order to establish a commission to study and reform Illinois’ beleaguered criminal justice system.
Eric A. Johnson teaches and writes about criminal law, criminal procedure and evidence at the U. of I. College of Law. Johnson, who worked as a prosecutor in the offices of the attorney general of Alaska (1990-2001) and New York (2001-04), spoke with News Bureau business and law editor Phil Ciciora about what issues he would like to see the commission tackle.
As a former prosecutor, what do you think are the most important issues facing the criminal justice system in Illinois?
I’d like to see the commission start with the Illinois criminal code, in part because the code’s shortcomings would be relatively easy to remedy. When the code was adopted in 1961, it was basically a strong code. It was comprehensive without being unduly complex. In the intervening years, though, the Legislature has added a multitude of unnecessary and duplicative provisions, a result of which is the Illinois criminal code now is among the worst in the country. It lacks precisely those qualities that Gov. Rauner, in his executive order, identified as critical to the fairness of the criminal justice system: “uniformity, certainty [and] consistency.”
Moreover, reforming the criminal code would be relatively easy. In 2003, the Illinois Criminal Code Rewrite and Reform Commission, which had been created in 2000 by then-Gov. George Ryan, published a comprehensive proposed rewrite of the criminal code. The commission’s proposed rewrite was, unfortunately, ignored entirely by the Illinois General Assembly. But it’s a really outstanding piece of work. Participants in the rewrite included several of the country’s leading criminal law scholars, among them Paul Robinson, who oversaw the project, and University of Illinois law professors Wayne R. LaFave and Andrew D. Leipold, who served as special counsel to the commission. As an easy first step, Gov. Rauner’s commission ought to revive this earlier criminal code rewrite.
The governor said he would like a “comprehensive, holistic approach" to reforming the justice system. What does that look like to you?
For me, a holistic approach means targeting social problems that, at first glance, might appear to have relatively little to do with criminal justice. It means, for example, improving educational opportunities and social services in communities where crime is common.
The governor is right to target these broader social problems, of course. But it’s important to recognize that crime itself also is among the social conditions that give rise to crime. I’m not a sociologist, but my work as a prosecutor always was informed by the recognition that some forms of crime – domestic violence, for example, and drug crime – harm other people not just directly but indirectly, too, by destroying the social fabric. If they’re to make the right choices, children require not just educational opportunities and decent social services, but a sense of physical security, as well. Unfortunately, in some communities, large-scale imprisonment of violent and repeat offenders may be the only way to provide that physical security.
According to the executive order, recidivism in Illinois is high – 48 percent of adults and 53.5 percent of juvenile convicts return to prison within three years of release. One of the goals of the executive order is to reduce Illinois’ prison population by 25 percent by 2025. Based on your experience as a government attorney, does that seem realistic?
It would be wonderful, of course, if the governor were able to reduce the state’s prison population by 25 percent without, at the same time, making our communities more dangerous. But I’m skeptical. What’s behind our current high level of imprisonment are lots of individual sentencing decisions by individual judges, who usually have broad discretion in deciding whether, and how much, imprisonment is justified in a particular case. From this up-close perspective, the judges’ decisions generally seem right.
It’s not my impression that the state’s trial judges are imposing long terms of imprisonment vindictively or reflexively. On the contrary, the judges seem to be fully cognizant of the terrible consequences of their decisions for offenders, for their families and for their communities. Unfortunately, where violent and repeat offenders are concerned, judges often have little choice but to imprison the offender for the sake of deterrence and prevention. If equally effective “alternatives to incarceration” were readily available for these cases, as the governor’s order appears to suppose, I’m guessing these judges would have discovered them, if only for their own peace of mind.