Cook County prosecutors’ new effort to reduce sentences for some longtime inmates — hailed by State’s Attorney Kim Foxx and other reform advocates as a way to right the wrongs of the tough-on-crime era — will have an uphill climb before some judges, if its first week in court is any indication.
Associate Judge Stanley Sacks sat on the bench with a scowl Thursday as prosecutors presented their request to resentence Charles Miles, who was given a total of 25 years in two burglary cases.
“I’ve been doing this for 30-plus years. I make up my own mind, not Gov. (J.B.) Pritzker, not Kimberly Foxx, either,” he said.
Miles is one of three people initially identified by prosecutors as a candidate for resentencing under a new state law allowing prosecutors to proactively request more lenient sentences for people, though the ultimate decision is still up to a judge.
On the bench Thursday, Sacks insisted that he had not yet made any decisions about whether Miles deserved a new sentence and said he would not weigh in on the statute’s constitutionality.
But he could not disguise his contempt for the idea in general. He repeatedly questioned why Miles had a pro bono attorney in the courtroom if prosecutors were also advocating for his release, and wondered openly if he had jurisdiction to determine a new sentence.
“It’s constitutional? Takes away the governor’s only right? What he does is resentence people through clemency,” Sacks said. “… Isn’t that something for the governor to do?”
“That’s one avenue, but that’s mercy. There’s also justice,” said Assistant State’s Attorney Nancy Adduci, who explained that the new law simply “revest(s) jurisdiction” back to the courts so a judge can consider a new sentence.
The effort is also a “re-entry initiative,” Adduci said in court. Prosecutors have identified people who could help them understand the challenges they face upon release from prison; Miles has agreed to collaborate in that effort, and prosecutors have petitioned for his resentencing in part as an incentive for that cooperation, she said.
“We’re trying to improve the fairness of the system,” Adduci said in court. Miles’s sentence was fair at the time Sacks handed it down, she said, but “people change, circumstances change.”
“The question is, has the person been rehabilitated, and can the person help us understand the concept of re-entry … help us understand what people need when they re-enter society,” she said.
“I’m not a social worker,” Sacks said. “All I know is, he commits burglaries ... oh, he’s changed in custody? We’ll see.”
Sacks set a hearing date for early May. If Miles is not resentenced, he is slated for release next year.
Miles’ case was one of three that prosecutors intended to present in court this week for potential resentencing. The first had its initial hearing Wednesday in the suburban Markham courthouse.
Judge Brian Flaherty said that before deciding how to go forward, he would need to review the voluminous paperwork from Larry Frazier’s trial and the subsequent court proceedings – setting up potentially lengthy proceedings for Frazier, who is currently slated for release in November 2023 after serving time for home invasion and residential burglary.
Prosecutors on Thursday withdrew their third petition before Associate Judge Timothy Joyce. The person they wanted Joyce to resentence was actually slated for release as soon as next week – which they did not know at the time they filed the motion.
Judges still have leeway
Sentencing hearings can be thorny affairs. Each case features a unique combination of interlocking factors: the defendant’s circumstances, the details of the crime, the evidence at trial. Sentencing guidelines are supposed to be elastic enough for a judge to weigh each of those factors and tailor a specific prison term to a specific case.
Much also depends on the individual judge. Some have a reputation for relative leniency, while others are known for “launching” defendants into prison with tough sentences.
Overall, Foxx’s office has said, some lengthy prison terms are relics of an outdated lock-’em-up philosophy, and the new law lets prosecutors use their significant power to try to remedy that.
Some research has shown that long sentences do little to deter future crime, and that people are significantly less likely to reoffend as they age.
The office is first reviewing cases of people who have served at least 10 years for a drug, theft, robbery or burglary conviction; people 65 or older who have served at least 20 years for a case not related to a sex crime or homicide; and people who have served at least 15 years for a case other than a sex crime or homicide and who were younger than 21 when they committed the offense.
It’s unclear how many people currently in custody would qualify for consideration under those criteria. The state’s attorney’s office declined to give an estimate.
“We started with a much larger group once we set the criteria and landed on these two cases,” a spokesperson said in an email. “We recognize that two is small, but we want to be positioned to do this right. As of right now we are focused on these two cases.”
The Tribune found inconsistencies in Illinois Department of Corrections data that make it difficult to precisely identify which people would qualify. But the newspaper’s analysis of available data suggests that the numbers may be small.
Of the roughly 12,000 people in IDOC on Cook County convictions, it would appear that less than 2% of them could qualify. Only nine people sentenced from Cook County appear to have been in custody for more than a decade on only drug charges. Other longtime inmates convicted of drug offenses are also serving time for violent crimes, including murder.
A political element
The resentencing initiative quickly became a political football in the governor’s race, with Republican candidate Richard Irvin — a former prosecutor and criminal defense attorney who is running a tough-on-crime campaign — slammed Pritzker’s support of the new state law.
In turn, Pritzker’s representatives reportedly accused Irvin of using crime to score “cheap political shots.” At the same time, Crain’s reported, they said they wished Foxx had chosen to begin her resentencing effort by focusing on nonviolent offenses.
The resentencing initiative is not without criticism from within Foxx’s office. Some current and former Cook County prosecutors told the Tribune they were concerned about whether it is a wise use of resources for overworked staff.
Some scoffed at the office’s decision to initiate resentencings a year after it decided to stop making release recommendations before the Prisoner Review Board, which determines whether longtime prisoners should be released on parole. Prosecutors are not the right people to make judgments about when a person should be released, Foxx said at the time.
“We do not have the ability to fully predict the future ... to know if and when that person will be able to return to a non-penal world without posing a continued threat to public safety,” she wrote in a February 2021 letter to the chairman of the Prisoner Review Board.
Relatively few cases are eligible for parole in Illinois, where parole in the traditional sense was largely abolished in 1978. Instead, most people are sentenced to specific prison terms, with eligibility for good-behavior credit that can reduce sentences by up to 50 percent in all but the most serious cases.
The Cook County State’s Attorney’s office traditionally relied on very limited information to make parole recommendations, according to a statement from Foxx’s office, whereas prosecutors considering eligibility for the resentencing initiative are conducting extensive research. The Prisoner Review Board is the best-suited to make parole decisions, the office said.
“They have a plethora of information and abilities at their disposal, including access to files dating back a half-century (at this point) and the ability to interview incarcerated persons,” a spokesperson said in an emailed statement. “In parole hearings, in many cases, we were continuing to rely on well-established factual histories from decades-old crimes without having the nuanced view that the PRB has.”
Earlier this week, an open letter penned by former Cook County prosecutor Alan Spellberg on the Crime in Wrigleyville and Boystown blog made the rounds among courthouse insiders lightning-quick.
Spellberg alleged that the law allowing prosecutors to petition for resentencing is unconstitutional, saying that in his opinion, it violated the principle of separation of powers.
“Consideration of a defendant’s post-conviction behavior and possible rehabilitation while imprisoned is outside the judiciary’s sphere of authority and instead rests solely within the Governor’s exclusive clemency power,” he wrote.
Sheila Bedi, a professor at Northwestern University’s Pritzker School of Law and director of its Community Justice and Civil Rights Clinic, disagreed strenuously. Resentencing is squarely within the province of judges, she said, and criticism of the new law needs to be put in context of the political backlash to criminal-justice reforms.
“The outcomes might be the same. Somebody who’s granted clemency and somebody who’s resentenced might be walking out of prison, but that doesn’t mean the legal mechanism is the same,” she said.
In a statement to the Tribune, a spokesperson for Foxx’s office said they had examined the issue of constitutionality and determined that the new law passes muster.
“Though there is some overlap, the separation of powers doctrine still recognizes that … certain areas may share certain functions,” they said.
Will County State’s Attorney James Glasgow last month asked a judge to throw out Corzell Cole’s first-degree murder conviction in a 2002 homicide, and instead allow him to plead to second-degree murder and get a new sentence that would allow for his speedy release.
As first reported by Injustice Watch, Will County prosecutors cited the new resentencing law in their request.
In an interview with the Tribune, Glasgow was careful to note that his office was not requesting Cole be resentenced in the same way Cook County prosecutors have requested for Miles and Frazier. Rather, they mentioned the new statute to support the concept that, in certain circumstances, a judge can be given the power to preside over a case that has long since concluded.
After reading Spellberg’s letter, Glasgow said it could be persuasive, and merited further research. But Will County is not currently pushing for anybody to be resentenced under the new law, he said.
Some defense attorneys told the Tribune they agreed with Spellberg’s analysis that the new law is unconstitutional. Longtime criminal defense lawyer Steve Greenberg said while it is “ridiculous” to keep some people in prison for decades, it should not be up to judges or prosecutors to determine whether someone has been rehabilitated.
The right move would be to restore a broader parole system in Illinois, Greenberg said, calling the resentencing initiative merely “a Band-Aid for a system that doesn’t work.”
The first case
Larry Frazier, 65, is the subject of Cook County prosecutors’ first request for resentencing. He has been in custody for nearly 27 years - longer than some full sentences for first-degree murder — on convictions for a home invasion and residential burglary.
The details are harrowing, according to summaries of the case found in appellate rulings. A woman in her 60s had left the front door of her Calumet City apartment open while she brought in items from her car; Frazier came in through the door and repeatedly demanded money, saying he would kill her if she didn’t comply. He went through the apartment, finding a revolver in a nightstand, and demanded again that she handed over money. She had nothing but a cookie tin full of change. She handed that over to Frazier, who took one look and dumped it out on the floor.
“Not knowing what else to do,” the Seventh Circuit Court of Appeals court wrote, the victim grabbed the gun with both hands and started to struggle. The gun went off. Frazier was shot in the chest.
Frazier was sentenced to 60 years, double the usual maximum, since the victim was older than 60. At sentencing, the judge noted that he had a lengthy criminal background including multiple robbery convictions, and he committed the Calumet City home invasion less than two weeks after being released from prison.
After court Wednesday, Frazier’s family said they were hopeful that prosecutors would succeed in getting him home early. He was severely wounded in the shooting, his brother Lorenzo Lyles told reporters.
“The man almost died … and then they sentenced him to all that time,” he said. “I told him I’d rather die than get sentenced to all that.”
‘A crime is a crime’
Miles, meanwhile, has multiple burglary convictions; prosecutors are asking Sacks to reconsider his sentence on two. One, dating to 2010, involved him taking employees’ belongings from a coat room at Tavern on Rush. He was sentenced to 13 years. And he was given a 12-year sentence for a residential burglary case dating to 2011.
At sentencing in the 2011 case, Miles’ attorney said he was a nonviolent man who had gotten his GED and enjoyed strong family support. His life took a “downward spiral” in 2008 after the death of his father, and he dealt with severe drug addiction, the attorney said at sentencing.
The adult victim in the residential burglary case spoke to the Tribune this week on condition that she be identified by her initials, S.C., to protect her privacy. She is not planning to appear in court for any new hearings, she said.
She remembers the night in detail: She was reading with her young daughter in their apartment when she heard her bedroom door close. It was probably just a draft, she figured. But when she got up and walked into the hallway, she saw a strange man standing there.
“That moment, that second, was shock,” she said. “You just don’t feel your legs … He said ‘I’m not going to do anything to you,’ and also he said ‘I did not steal anything.’”
He walked out the front door of the apartment, she said.
Miles never touched her or her daughter, S.C. said, and she feels lucky they were not physically harmed.
S.C. got a phone call Monday from someone with the State’s Attorney’s office, letting her know that Miles could be resentenced, she said.
They told her that some people who commit much more serious crimes than Miles get the same kind of sentences, she said. “That’s why, I guess, they think he did too much time,” she said.
In S.C.’s opinion, that all should depend on what is in Miles’ criminal background, she said. She is not optimistic that people can be rehabilitated in prison.
“Whoever does crime has to pay for it. I know there are heavy crimes (and) lighter crimes, but a crime is a crime. So you cannot do this. People live their lives, taking care of their business, and nobody invites you to break in, disrupt somebody’s life, and do whatever you feel like,” she said.
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(Chicago Tribune reporter Joe Mahr contributed to this article).
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