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With the support of Mayor Rahm Emmanuel, HB2265 / SB 1342 was recently introduced to 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. Our friends at the John Howard Association—in recent articles on the Huffington Post and in the Chicago Tribune—have responded forcefully to Emmanuel’s proposal, laying out how new mandatory minimums will undermine efforts at crime control and only increase crime in our streets.

We at Chicago Appleseed add our voice in opposition to Emmanuel’s proposal and focus on another aspect of the proposal’s impact: a new mandatory minimum will exacerbate pre-trial delays by introducing more disorder and uncertainty in our criminal justice system.

In interviews with stakeholders, one of the more frequently cited explanations for increased delays is a change in Illinois sentencing laws. Since 1999, the Illinois legislature has made criminal sentencing both harsher and more complex. Increased mandatory minimums, increased time-served requirements, gun add-ons, and consecutive sentencing requirements have resulted in significantly longer prison terms.^[i] And though mandatory minimum sentences have given the State greater leverage in plea negotiations, they may ultimately delay the pretrial process by discouraging defendants from pleading guilty.

The Illinois  Truth in Sentencing (TIS), enacted in 1998, requires those convicted of first-degree murder serve 100% of the court-imposed sentence and that specific classes of violent offenders serve 85% of their sentences. Since then, the legislature has added to the list of offenses that require 85% time served.^[ii] Now the projected average time served by those convicted of murder is 40 years–up from 11 years for first degree murderers released in 1999.[iii]

Longer sentences are linked strongly with longer pretrial detention. According to an unpublished analysis of sentencing and jail length of stay data from 1995 to 2010, the increase in sentences for homicide and other violent felonies correlates positively with jail population trends. ^[iv] For detainees charged with Class X offenses, the average length of stay in the Cook County jail, prior to being sentenced to prison, has increased by approximately 200 days since 1995 and by more than 100 days since 2000.^[v]

A  study of nine urban felony courts examined the impact of mandatory sentences and aggressive prosecution tactics with respect to case processing time. The study found, conclusively, that more serious cases and those with longer sentences did take longer to process.^[vi]The study said sentence enhancements “raise the stakes for defendants and may make them less inclined to plead guilty or to do so early in the process.” Yet, the authors explain, sentence enhancements can also be a bargaining chip, for inducing pleas, which dispose of cases sooner.

In our interviews, several stakeholders in Cook County felt the relationship between longer sentences and longer length of stay could be explained by “hard bargaining” by the state. Loosely defined, hard bargaining is a prosecutorial strategy whereby the state charges an offense with a mandatory minimum rather than one that has no minimum.  This practice in and of itself is not reportedly new. Defense attorneys, in turn, either cannot or will not advise their clients to accept such offers, leading to a protracted negotiation process.

One lengthy study of state criminal justice strategy^[vii] suggests that a policy of inflexible negotiating limits Assistant State’s Attorneys’ ability to prosecute effectively. This is especially the case when combined with lax charging practices. “Denied the latitude to negotiate on cases that were weak or improperly charged,” the study reads, “assistants had to find ways in the courtrooms of circumventing their bosses’ policy restrictions when they were handling cases that they felt were inappropriate to try, but which they could not dismiss or nolle prosequi without jeopardizing their position in the office or incurring the wrath of the policy’s enforcer.”^[viii]  One of the ways prosecutors ostensibly get around hard bargaining policies is by permitting (through insinuation to the defense that a more attractive offer will not be forthcoming) more cases to go to trial, where a judge may convict a defendant of a lesser-included offense.

Readying for trial takes much longer than obtaining a plea bargain. Thus, any strategy encouraging defendants to seek trial will result in an increased length of stay for pretrial detainees, consistent with the increases described herein.

Information on the “trial tax” and other issues related to pre-trial delays and the overcrowding of Cook County Jail are available in our report, Pre-Trial Delays and the Length of Stay in Cook County Jail, available here.