Will it be the governor's Class X or the legislature's H.B. 1500? -

IT SEEMS a near certainty that sweeping criminal justice reform will result from the special session of the General Assembly called by Gov. James R. Thompson for October 24. For one thing, that is the avowed major purpose of the session, for another it is clearly the will of both the legislature and the governor. The real question is: What kind of reform will be adopted and who will get the credit for it?

In the regular session last June two forms of criminal code overhaul vied for acceptance. One was House Bill 1500, a House Judiciary II Committee bill that was drafted after two-and-a-half years of study on crime sentencing procedures. H.B. 1500 passed the House 153-6, but was squelched after the main competing concept — Gov. Thompson's Class X package — was amended onto it in the Senate. (The Senate had passed Class X earlier, 33-10, in the form of S.B. 165, sponsored by Sen. George Sangmeister (D., Joliet)).

That the two concepts both died was seen by some to be the result of an unsavory scramble for political credit for cracking down on criminals. Yet there were several very basic differences in the substance of the reforms, differences which both sides tended to obscure in attempts to vilify the other.

At bottom it is fair to say that Class X was drafted (as S.B. 214) more to "get tough on criminals" than was 1500. The governor's press release announcing the seven-bill legislative program in April characterized it as "designed to add speed to the trial process and keep dangerous criminals off the streets longer."

H.B. 1500, on the other hand, is aimed more at reforming the system of justice so that sentencing procedures would be more objective and less flexible. Most crucial among its proposals was one to do away with indeterminate sentences and to require that all classes of crime carry a fixed sentence upon conviction if the judge decided that the criminal should be placed in prison. At the same time, parole would have been done away with as a prison release mechanism. Thus convicts would be assured that they would have to serve a set amount of time in prison, which could only be reduced by the standard "time off for good behavior" concept — which would have been statutorily adopted under 1500, allowing one day off for each day of good behavior. (Illinois prisoners can earn day-for-day time off already, under new regulations adopted June 1 of this year.)

To be fair, it was also one of the stated purposes of 1500, as finally drafted, to "provide greater certainty that serious offenders will be sentenced to prison," according to Jim Bagley, majority legal counsel for the House Judiciary II Committee. By that criterion, along with increased sentence length for the most serious felonies, H.B. 1500 was also a gangbuster "get tough on crime" bill.

According to Gary Starkman, the governor's legal counsel and the man who wrote Class X, determinate sentencing is the fundamental difference between his bill and 1500. Starkman says the governor wanted life imprisonment as a maximum sentence because Thompson felt strongly that "there are some crimes so heinous that they absolutely will not be tolerated in Illinois." However, Starkman said in August that a compromise between the governor's proposal and a Democratic sponsored bill similar to 1500 is now likely and that determinate sentencing is now "acceptable" to the governor.

The governor later advanced a specific proposal that adopts most of the salient features of 1500, but still contains many of the features of Class X that House Democrats find objectionable. For instance, the compromise adopts day-for-day good time and determinate sentences, with requirements that judges consider mitigating or aggravating circumstances. But it retains the shibboleth "Class X" name and features a mandatory life sentence for three Class X offenses, with no parole, probation or furlough to be allowed.

Experts say the major obstacle to a compromise between Class X and H.B. 1500 now is who gets the credit. "I want Class X in there by name," the governor said at a mid western governors confer

ence meeting in August. Considering House Speaker William Redmond's vehement objections to the governor's bill last spring, this may not be as easy as it sounds. Redmond was quoted as saying, "These 'X-rated' felonies are a fine public relations vehicle, but from the standpoint of criminal justice and practicality, they would allow unfair assessment of sentences and decree terms in prisons which as yet are not even at the drawing board stage."

Later, after 1500 was sent to languish in committee and the governor could see his Class X bill wasn't passing, he tried to get it through as an amendment to another bill, sponsored by Rep. Roman Kosinski (D., Chicago), that called for mandatory life sentences for three-time losers. (Thompson later adopted Kosin-ski's concept in his compromise suggestions. Kosinski, who introduced the bill reinstating the death penalty, will offer a bill in October to substitute lethal drug injections for the electric chair as a means of capital punishment.) But Redmond ruled the Class X amendment irrelevant. Thompson snapped back at Redmond charging a "legislative trick" had unfairly killed Class X.

As to Thompson's subsequent compromise proposals, Redmond says, "I think it's an improvement, but it may be an improvement not so much in substance as in the governor's attitude in indicating that this should not be political. But if he's really not interested in political implications, he should drop the Class X terminology altogether. It's really meaningless."

The past rhetoric will perhaps make it more difficult to compromise on a single crime bill. But there are a number of things that the House bill has in common with the governor's proposals. The most apparent similarity is in the increased length of sentences for the most serious felonies. Under Class X, conviction on any of a number of felonies — including rape, kidnapping, arson, taking indecent liberties with a child, sale of narcotics or commission of a felony while armed with a dangerous weapon — would automatically mandate minimum prison terms of six years to life without parole.

H.B. 1500 also would do away with parole for most serious crimes, but would not mandate a prison sentence for first offenders convicted of Class 3 and 4 felonies. A judge would be given the option of imposing work release programs or periodic imprisonment. He would also be well-informed to make such judgments through presentence reports to be required on the defendant's background and on sentencing alternatives, including available social programs.

New prison terms would be set for each class of felony by 1500, with the most serious classes-assigned longer sentences and the less serious ones getting, shorter terms than at present. For instance, murderers convicted of less than capital offense killings, would receive sentences of 20 to 40 years or "natural life" under H.B. 1500, compared with the present 14-year minimum and no maximum term. Class 1 (which includes most Class X offenses) felony convictions would carry terms of 6 to 25 years behind bars, as opposed to the present 4 years minimum, no maximum.

Robert Schuwerk, legal counsel for the Illinois Law Enforcement Commission, criticizes both Class X and 1500 for requiring inordinately long prison sentences, as does Mike Mahoney,

The unofficial opinion of the Bar Association

WHILE the Illinois State Bar Association has not yet taken an official position on proposed changes in the criminal code, two bar association committees are studying H.B. 1500 and Class X with the purpose of recommending a public stance on ail or parts of the bills. The chairmen of those committees — one on criminal justice and the other on correctional facilities and services — disagree on the relative merits of mandatory sentencing and stiffer penalties for convicted felons.

Theodore Gottfried, who heads the criminal justice section committee and is a state appelate defender, says he is against "any type of mandatory sentencing." [A mandatory sentence is not the same as a determinate sentence. A mandatory sentence is one which a judge must impose upon a man found guilty of a certain offense. A determinate sentence is a sentence for a fixed time, which a court has the option of imposing if deemed appropriate in a particular case.] Gottfried explains, "There's one type of armed robbery, for instance, where a guy goes into a bank with a gun and sticks it up. And there's another type where a man is playing cards and feels cheated and pulls out a knife and asks for his money back. That's armed robbery under the law either way, but I think a judge should have some discretion to differentiate in sentencing those two cases."

Gottfried further believes that the stiffer penalties under both Class X and 1500 will not work as a deterrent to serious crime, but will greatly increase the cost of prisons and courts due to more prisoners being held and more appeals being filed.

Melbourne Noel, chairman of the committee on correctional facilities and services, says, "Deterrence works. Certain people need to be locked up for long periods of time ... of course it's not universal, it doesn't deter everyone. But longer sentences serve more than one function." Besides deterrence, ¦ "there's the warehousing function, to keep I, those identified as hardened and dangerous criminals off the streets. It's proven that this works to reduce crime."

Noel points to the decline in the number of reported crimes in Cook County recently as evidence of the value of cracking down on felons. "The reduction is directly attributable to the great increase in the number of convictions and penal sentences obtained by state's attorneys and handed down by judges here in the last two years," he says. (Noel is an assistant with the Attorney General's Office in Chicago.)

Noel also favors determinate sentences, with less discretion for judges, and agrees with mandated sentences because "it's a tremendous burden on judges to come up with an equitable sentence."

Noel expressed concern that changes in the criminal code be carefully considered. "It could become a bad habit to change this every couple years . . . you could lose credibility and confuse the hell out of those who practice criminal law, besides the fact that there are always loopholes created when you keep rewriting the statutes."

Both Gottfried and Noel agreed that changes are needed in the code, mainly in establishing determinate sentences. "One aspect of Getty's bill (1500) I like is that a man will know how long his sentence will be," Gottfried says. "I generally agree with the concept of determinate sentencing," says Noel, "though my committee has voted against it."

What Noel dislikes about 1500, though, is its provision for day-for-day good time credit. "It's silly to sentence a man to a long number of years and then give him half that time off, that's playing around with justice. But I think it's even more important that the Department of Corrections be able to take away over 30 days of good time." [Which would not be allowed under H.B. 1500.] "It's the only strong weapon over a prisoner's behavior," Noel says.

executive director of the John Howard Association, an independent national prison reform organization. Mahoney says that Class X in particular would have a "catastrophic impact on prisons," worsening the already overcrowded conditions. (Illinois prison populations have grown from 6,600 in 1973 to over 10,300 this July. Even at present growth rates, the trend is not expected to peak until 1984, with between 14,000 and 17,000 prisoners forecast by that date.)

Schuwerk says the "bad thing about 1500 was that the sentences grew like crossbred seeds" from original proposals. His contention is supported by a comparison of final bill sentence provisions and 1976 recommendations of the House Judiciary II Committee. The committee recommended establishing new prison sentences effectively increasing median terms served by .8 years for murder and .05 years for Class 2 felonies. The committee would have decreased terms served by .3 years for Class 1 and Class 3 felonies and by .7 years for Class 4 felonies. Yet as the bill was finally written, effective determinate sentences are expected to increase by 3.3 years for murder, 3.45 years for Class 1 felonies and .3 years for Class 2 felonies, while dropping off .05 years for Class 3 and .7 years for Class 4 felonies, respectively. (These estimates are based upon the average sentence actually served for each class of felony between 1971 and 1974.)

Schuwerk points out that the increase in time given for Class 2 felonies is most significant "since most of the prison population is in for this class of crime."

The code of corrections
H.B. 1500 presents by far the most complex and comprehensive change in the present unified code of corrections, which went into effect January 1, 1973. That code was worked on for approximately four years and was pointed to as a model of legal organization. But apparently many people felt that the substantive part of the code was still far out of date, with regard to both the attainment of equal justice and law and order. Discretionary sentencing powers of judges, for example, now allow for an immense range of prison terms. Those convicted of the same crime may get unexplainedly different sentences from one court to another, and judges needn't

"The basic changes needed are in the manner in which persons are sentenced," according to Committee Counsel Bagley. Bagley says 1500 is "more or less a cleanup of what the law already was . . . under the present system no one knows when a convict will get out." Bagley says there is "no comparison between 1500 and Class X; 1500 covers every aspect of sentencing . . . the difference is there is no maximum under Class X, which is a half-assed approach." (Maximum terms were in fact added to Class X under the governor's compromise package.)

The prison population
The reason Bagley and others criticize the open-ended maximum sentence provisions of Class X, however, is that it may lead to unmanageable overcrowding in state prisons. Yet the man who would have to manage the extra prisoners generated by Class X, Director of Corrections Charles Rowe, says he supports it. "One thing I like about it is that we would have no new bodies [in prison] for three years," says Rowe. And he says he likes the idea of getting more serious criminals off the streets: "People aren't going to tolerate being victimized any longer."

Mahoney of the John Howard Association disagrees with Rowe's assessment of the relative merits of the governor's bill: "1500 is much more realistic than Class X. Given the options, it's probably worth trying."

There are a number of provisions of 1500 not originally included in Class X. One is a sentencing rule, allowing judges to double the maximum sentence imposed for habitual offenders. As mentioned, presentence investigations would be mandated. (This would apply to all cases where a sentence of more than 90 days may be imposed.) Another idea peculiar to 1500 is a requirement that trial judges set forth in writing their reasons for all sentences imposed. Before sentencing, judges would first be required to consider aggravating or mitigating circumstances specifically enumerated in the law. H.B. 1500 also would set up a Prison Review Board, independent of the Department of Corrections, to hear appeals of prisoners' cases when good time credit is under threat of reduction or revocation. Other duties of the new board would include making recommendations to the governor on pardons, reprieves or commutations, and setting release dates for those sentenced prior to enactment of 1500.

Class X, on the other hand, would not spell out good time regulations and would be more circumspect in the area of determinate sentencing. It would set up a commission to study the "overall feasibility" of fixed duration prison terms and recommend methods of improving fairness and uniformity in the sentencing process. This 12-member Criminal Sentencing Commission would be required to report by March 1, 1979, according to the original Class X proposal.

In addition. Class X makes no changes in present parole procedures (with the exception of Class X convicts themselves, who will not qualify for parole). But 1500 would, as mentioned, end parole as an early release expedient for those convicted in future cases. However, it would not do away with parole for those sentenced prior to enactment of the new law. Therefore the Parole and Pardon Board would not be abandoned under 1500. If 1500 becomes law, the board would remain in service to supervise prisoners paroled under the old law and to consider petitions from those sentenced under past statutes.