Executive Summary
Overly severe criminal penalties remain a pervasive problem in the criminal legal system. They reflect unfair prejudices and misunderstandings of deterrence and recidivism from the “tough-on-crime” era of the 1980s and 1990s. Punitive laws—such as truth-in-sentencing, mandatory minimums, and three-strikes laws—spawned mass incarceration and excessive sentences. Now, thousands of people continue to serve overly long sentences. Many laws have been passed to reduce sentence lengths, and thus, the number of people incarcerated. But, because these laws tend to only apply prospectively, the thousands of people who were impacted by punitive sentencing structures are being left behind. State legislatures—including the Illinois legislature—may, and previously have, alleviated these harsh penalties with retroactive criminal sentencing reforms.
This memorandum will illustrate how and why the Illinois legislature is able to pass retroactive criminal sentencing reforms without violating principal constitutional challenges such as the Ex Post Facto Clause, Separation of Powers doctrine, the Contract Clause, and the Crime Victims’ Rights Clause.
A law that is “retroactive” applies to people incarcerated before the law was passed. A law that is “prospective” applies to people incarcerated after the law was passed. This memorandum will discuss retroactive legislative enactments and amendments that seek to effectively reduce the time spent in prison notably by expanding opportunities for sentence credit, parole, release, or resentencing. These laws will be referred to as “retroactive criminal sentencing reforms.”
Retroactive criminal sentencing reforms will powerfully impact the people who were harshly sentenced and prompt a meaningful step towards decarcerating Illinois.
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