Don’t give up before the magic happens: doing hard criminal justice reform is worth it

Some days are just plain crap. As advocates for criminal justice reform, particularly the kind we do at Restore Justice Illinois (RJI; we work in the deep end of the pool, on policies impacting long-term inmates and people with violent offenses), we can find ourselves at odds with both our allies and our opponents, settling for far less than we want, and investing all of our hopes in strategies where success is measured in decades rather than years.

But that doesn’t mean it isn’t all worth it.

In early 2013, following the US Supreme Court’s June 2012 ruling in Miller that mandatory life without parole sentences are unconstitutional for juveniles, we had one of those rotten days. A group of advocates, parents of “juvenile lifers,” and lawyers sat in a conference room at the Northwestern University legal clinic that houses the Illinois Coalition for the Fair Sentencing of Children.

We were a glum lot. Our little band of advocates had recently been laughed out of the room by the key negotiator for the Illinois State’s Attorney’s Association over our attempt to dismantle juvenile life without parole (JLWOP) in Illinois by banning it. He even made a chart to show that if we got rid of JLWOP here retroactively — for instance, by providing for a way to review someone’s sentence — the underlying mandatory sentences for most of the kids we were talking about were so long they would not get a genuine second chance anyway.

I was working for Human Rights Watch (HRW) circa 2013 when this photo of a mocking analysis of JLWOP reform legislation was taken. HRW didn’t own the legislation, but I think our opponents liked using it because it was big and recognizable.

Disclaimer: I’m not a lawyer. But now that we are getting into sentencing law, I want to trigger memories of your early civics education, and then ask you to keep them in the back of your mind as you are reading:

  • The legislature writes the laws, often with the help of advocacy groups and other stakeholders.
  • The courts make sure those laws are in line with our state’s constitution and consistent with other laws by taking and elevating individual cases that may either prove or disprove that a particular law or policy is kosher.

Back to our bad day. We were having a strategy meeting to decide what we really had to do to dismantle the system that has kept so many children in prison for life. In other words, if we can’t abolish JLWOP by abolishing JLWOP, what do we have to do? That was the first of dozens of meetings and calls to piece together a course of action. It even resulted in us forming a new organization, RJI, to put a finer point on the legislative advocacy necessary to make the kind of incremental, long-term changes we now saw were in front of us.

In April of 2015, Restore Justice, working to support bill champions Representative Barbara Flynn Currie and Senator Don Harmon, celebrated its first legislative success with a the passage of HB2471, a bill that eliminated mandatory juvenile life without parole in statute (to peals of laughter from our opponents, knowing that based on their chart, so few would get relief); and, more meaningfully, both required judges to consider youth specific factors in sentencing and gave judges the ability to depart from other sentencing enhancements, including gun enhancements, when facing a child in their adult courtroom.

In negotiating the language that would ultimately end up in HB2471, the RJI team agonized over being forced to set a definition of “de-facto life.” Our opponents wanted an underlying minimum sentence that amounted to “life” for judges to revert to when choosing not to give a “natural life” sentence to a juvenile in what they considered extreme cases. We had already done research on what amounts to life earlier in the negotiation process, and had determined 40 years, which was drafted into the bill and subsequently became law.

While thrilled to take our first chip away from the rock that is juvenile life without parole in Illinois, we considered it a meager, partial victory because we had to give up so much in negotiations with law enforcement stakeholders who were necessary for any new law to be adopted. Most notably, it was not retroactive, meaning it would not help the loved ones of the moms on our coalition; it would only help those coming into court from the effective date of the law.

Following the passage of HB2471, RJI and our coalition partners hunkered down and started the process of setting the next goal, which was to bring some sort of parole reviews to Illinois, which has not had a parole-for-release system since 1978. In 2016, 2017, and for much of 2018, we celebrated no concrete victories on sentencing reforms or on restoration of parole, but we worked with Representative Currie and Senator Harmon again to develop and build support for HB531, a proposal for a limited, prospective parole program for youthful offenders.

Fast forward to April, 2019. Two amazing things happened.

First, while the former Governor of Illinois had threatened a veto of HB531 (the youthful parole bill), the new Governor, JB Pritzker, did sign it on April 1. Again, while we celebrated, each and every staff and board member at RJI had a caveat: it just isn’t enough.

And then we had a truly special day, a day that somehow did what the bill signing did not: it restored my faith that even when it is not enough, it is still worth it.

On April 19, a man named Dimitri Buffer got a decision from the Illinois Supreme Court. A lower court had granted his petition for a resentencing hearing under the Miller ruling, agreeing with Buffer that a 50-year sentence amounted to a “life” sentence. The state disagreed, had argued it was not enough, and asked the Illinois Supreme Court to reverse the decision. They said 54 to 59 years would be a more reasonable line to draw for what constitutes a “life” sentence.

The justices ruled in favor of Buffer, and they used the language from HB2471, now law, to rationalize their argument that the will of the elected legislature was to define de facto life at 40, and that any sentence given to a juvenile that exceeds 40 years is a de facto life sentence.

Back to Civics 101: the courts sometimes interprets laws as an expression of popular voice. They see elected lawmakers’ will as evidence of our citizens’ will. So it was a big deal when we read the following sentence in the Buffer decision:

“…the General Assembly has determined that the specified first degree

murders that would justify natural life imprisonment for adult offenders would

warrant a mandatory minimum sentence of 40 years for juvenile offenders. The

legislature evidently believed that this 40-year floor for juvenile offenders who

commit egregious crimes complies with the requirements of Miller.”

And that is the line that is going to give Dimitri Buffer and likely another 142 inmates in Illinois a resentencing hearing. That is a big deal in a state with no parole system (HB531, the youthful parole law, is prospective), and no time off for good behavior for serious offenses. Without that line, the line may have been the one proposed by the prosecutors.

Is it enough? Of course not. There are almost 2,000 people serving 40+ year sentences in Illinois for things they did before their brains matured. The vast majority of them will not yet benefit from these changes. And don’t even get me started on the fact that no juvenile should ever be sentenced to anything even approaching life given what we know about youthful behavior.

But before April 2019, there were 142 people who wouldn’t have a chance, and now they do.

It may not be enough, but it’s what we need today to keep going and do more tomorrow.