The Rostrum

An inequity in sentencing law

EARLY RELEASE credit for good behavior is an integral part of all prison sentences imposed in Illinois, but there is a contradiction in this stautory good time credit scheme.

The general policy of allowing good time credit encourages an offender's good behavior and assists the Department of Corrections in the maintenance of discipline in the correctional system. The Illinois sentencing scheme provides for early release opportunities for persons convicted of both felonies and misdemeanors (Ill. Rev. Stat., 1979, Ch. 38, sec. 1003-6-3 and Ch. 75, sec. 30 et seq.). Through an apparent oversight in the law, however, a person convicted of a misdemeanor receives less good time credit than a person convicted of a felony.

The Class X sentencing provisions which became effective February 1, 1978, provide that all persons serving a sentence for a felony offense receive a reduction of one day from their prison term for each day of good behavior in the correctional institution, hence the phrase "day for day good time credit." The Misdemeanant Good Behavior Allowance Act was passed by the General Assembly in 1957 and amended to its present form in 1959. Department of Corrections Administrative Regulations Nos. 859 and 866 provide that misdemeanants receive both statutory and compensatory good time allowances. Administrative Rule 859 implements the act. Under AR 859 misdemeanants receive statutory good time credit at the rate of six days reduction of sentence per each month of good behavior beginning at the second month until the sixth month. At the seventh month, the credit rate becomes eight days per month. In addition, under AR 866 misdemeanants may earn up to seven-and-one-half days per month in compensatory good time credit.

However, in changing the good time credit allowance to day for day credit for felonies through passage of the Class X legislation, the General Assembly failed to amend the existing good time credit allowance for misdemeanants. In practice, this means that an offender serving a one-year determinate term of imprisonment for a conviction on a Class IV felony (e.g., deceptive practices by check over $150) is released approximately seven weeks earlier than a person convicted of a Class A misdemeanor (e.g., deceptive practices by check under $150) and sentenced to the maximum 364-day term. Consequently, in some instances, the offender serving a sentence for a misdemeanor conviction serves a longer period of imprisonment than an offender serving a sentence on a felony.

The Illinois Constitution requires that "all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship" (Art. I, sec. 11). In following the Illinois constitutional mandate, the General Assembly set forth the purposes of the Unified Code of Corrections:

The purposes of this Code of Corrections are to: (a) prescribe sanctions proportionate to the seriousness of the offenses and permit the recognition of differences in rehabilitation possibilities among individual offenders; (b) forbid and prevent the commission of offenses; (c) prevent arbitrary or oppressive treatment of persons adjudicated offenders or deliquents; and (d) restore offenders to useful citizenship. 111. Rev. Stat., 1979, Ch. 38, sec. 1001-1-2.

The purposes of the statute are not satisfied under the current good time credit scheme. It is apparent that granting greater good time credit to persons convicted of felonies than for offenders convicted of misdemeanors does not allow for proportionate sanctions, nor does it prevent arbitrary or oppressive treatment of persons adjudicated as offenders where lesser offenses are punished more severely. Finally, the present credit scheme does not encourage persons convicted of misdemeanors to useful citizenship where in some cases, persons convicted of felonies are allowed earlier release.

This good time credit imbalance has been challenged in the courts, and several criminal appeals involving this inequity are presently pending before the Illinois Appellate Court. Although no decision has been reached, several courts have addressed similar issues in other cases. For example, in People v. Bradley, 79 Ill.2d 410, 403 N.E.2d 1029 (1980), the Illinois Supreme Court held that a defendant's due process rights were violated by a sentencing scheme which provided a greater sentence for possession of a controlled substance than it did for delivery of the substance. The court noted that the greater sentence for the lesser offense could not have been intended by the legislature and violated the purposes set forth in the Controlled Substance Act. Further, in Boiling v. Manson, 345 F. Supp. 48 (B.C. Conn., 1972) the federal court held unconstitutional a good time credit scheme as applied to the residents of Connecticut correctional institutions. The decision turned on whether there were any substantial differences in treatment or conditions of incarceration which would justify inconsistent good time credit allowances. The court stated:

Since, therefore, the State has made no distinctions in the conditions of confinement based on the nature of an inmate's sentence, there is no basis in fact, much less a compelling State interest in different treatment methods, behind the challenged discrepancy in good time. 345 F. Supp. at 51.

In Illinois, a person convicted of a

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October 1981 | Illinois Issues | 35

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misdemeanor and sentenced to the Department of Corrections is subject to the same rules and regulations as all other residents committed to the department, except that person does not receive the same day for day credit as those being held on felony convictions.

In summary, there are compelling public policy reasons for amending the existing statutory credit scheme. Substantial numbers of persons are serving terms of incarceration in the Department of Corrections for misdemeanor convictions. Allowing those offenders to earn credit on a day for day rate would enable the Department to release them earlier, thus assisting in solving the chronic problem of overcrowding. Certainly, earlier release of misdemeanants through day for day credit is preferable to the early release of felony offenders in periodic special release programs implemented by the department because of overcrowding. Further, if the General Assembly changes the law, numerous court challenges by persons presently incarcerated on misdemeanor offenses may be avoided. Finally, the statutory good time credit scheme, which provides more credit to convicted felons for good behavior than for offenders with misdemeanor convictions, does not serve the legitimate public policy purposes set out by the Uniform Code of Corrections and should be amended by the General Assembly. A change in the law, which would allow misdemeanants to earn day for day credit, is consistent with the constitutional requirement that the punishment fit the offense.

James K. Zerkle, assistant corporation counsel for the City of Springfield, was an assistant defender with the Office of the State Appellate Defender from 1979 to 1981.