Parole Reform White Paper

Reforms to the Illinois Prisoner Review Board: Qualifications and Duties

by Sarah Aagard, Rosalind Dillon, Joseph Dole, & Raul Dorado

 

INTRODUCTION

 

In 1977, Illinois ended an 80-year tradition in criminal justice by removing the opportunity for parole.[1] Now, there are over 5,500 prisoners in Illinois serving life sentences or de facto life sentences.[2] Most of them will die in prison.

The proportionate penalties clause of the Illinois Constitution provides 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.”[3] Parole is meant to provide incarcerated people the opportunity to show that their time served has reached this objective—that they have been restored to useful citizenship—and to help them reintegrate into society. The Illinois Prisoner Review Board (“Board”) is an independent state agency that has significant power that impacts the release dates of many people within the Illinois Department of Corrections (“IDOC”). As it stands, it is nearly impossible for a person in the custody of IDOC to be paroled.

There is reason to believe that a reinstatement of discretionary parole for adults will eventually prevail in Illinois. Just this term House Bill 531, a bill to create parole opportunities for juveniles who are under the age of 21 at the time of the offense, passed the Illinois General Assembly with a 67 to 41 vote.[4] The import of HB 531 for those currently serving sentences in Illinois, who notably will not benefit from the bill, is evidence that criminal justice reform is trending towards a reinstatement of parole. With this trend, there is a need now even more than before for a fair and competent Board to make paroling decisions. Even without a reinstatement of discretionary parole for adults, there remains a wide swath of current prisoners affected by Board decisions, and, if the governor signs HB 531 into law, there will be a number of people incarcerated in the future whose fate will fall into the hands of the Board.

THE PROBLEM

The establishment and appointment of the Board is governed by 730 ILCS 5/3-3-1 (“Section 3-3-1”). Section 3-3-1(a) delineates the authority of the Board. Since the amendatory Act of 1977, which transformed Illinois into a determinate sentencing regime, the Board has paroling authority over incarcerated people under the pre-1978 sentencing law; sets the conditions that everyone must follow after release from incarceration; and determines whether those who violate conditions of release should be reincarcerated.[5] The Board also holds hearings to determine whether good conduct credits should be revoked, or whether lost good conduct credits should be restored—decisions which inevitably impact a person’s date of release.[6] Finally, the Board makes executive clemency recommendations to the Governor.[7] Section 3-3-1(b) describes the appointment process and qualifications for the Board members:

The Board shall consist of 15 persons appointed by the Governor by and with the advice and consent of the Senate. One member of the Board shall be designated by the Governor to be Chairman and shall serve as Chairman at the pleasure of the Governor. The members of the Board shall have had at least 5 years of actual experience in the fields of penology, corrections work, law enforcement, sociology, law, education, social work, medicine, psychology, other behavioral sciences, or a combination thereof. At least 6 members so appointed must have had at least 3 years experience in the field of juvenile matters. No more than 8 Board members may be members of the same political party.[8]

Despite the illusion of comprehensiveness, Section 3-3-1(b) has not resulted in a diverse and fair board.

The powers and duties of the Board are covered in 730 ILCS 5/3-3-2 (“Section 3-3-2”). Most of the provisions outline the scenarios for which the Board will schedule a hearing. Almost all types of hearings require “a panel of at least 3 members” of the Board to participate.[9] There is a notable exception, though, for the main group of people who currently have the opportunity to be considered for parole:

[T]he decision to parole and the conditions of parole for all prisoners who were sentenced for first degree murder or who received a minimum sentence of 20 years or more under the law in effect prior to February 1, 1978 shall be determined by a majority vote of the Prisoner Review Board.[10]

As detailed below, there are serious consequences to the en banc requirement for some parole hearings. The provision impacts all the people who are currently eligible for parole and still incarcerated within the IDOC. Additionally, the majority vote requirement of 8 out of 15 members does not change when a Board member is absent, and an absence counts as a “no” vote.[11]

Additionally, there is a glaring absence in the duties of the Board: there is no requirement to stay up-to-date on criminal justice issues. Board membership is a full-time, salaried position that handles issues in an area that is constantly changed through new research, initiatives, and strategies for rehabilitation and re-entry. One such area is the development of risk assessment tools that help trained staff members estimate the likelihood that a person up for parole will recidivate, based on dozens of factors.[12] Board members then use these risk scores as a factor in their parole-making decisions.[13] Because these tools are still new, and because nobody can predict the future perfectly, strong safeguards need to be in place to prevent the tool from suggesting the wrong level of supervision or calculating an incorrect score.[14] These safeguards include annual audits to the risk assessment tool, a parole client’s right to know their risk assessment score, and in that same vein, a right to appeal the Board’s denial of parole if it conflicts with the risk score’s recommendation.

Currently, a person who is denied parole cannot appeal the Board’s decision to the Illinois courts under any circumstance. The only recourse is to petition for rehearing based on extraordinary circumstances or wait up to five years for the next parole date.  However, given the undeniable impact of an adverse parole decision on a parole client’s life and continued incarceration, a right to appeal under certain circumstances is necessary and just.[15]

The major shortcomings of 3-3-1 and 3-3-2—specifically that they have led to the creation of a Board and parole system that has made it nearly impossible for people to show they have been reformed—are clearly evinced by recent data on the voting record of the Board.

A 2018 report by Injustice Watch demonstrates just how difficult it really is for someone to get paroled in Illinois, especially given that only six current board members discussed by Injustice Watch vote in favor of an inmate more than 15% of the time.

Illinois Parole Board Voting Record

The above graph shows votes of all cases before the board from January 2013 to June 2018. The total cases before each member vary depending on their amount of time on the board. Below is a chart with a more nuanced breakdown of the voting record of each Board member.[16]

Member Prior Careers # of Cases Votes in Favor of Inmate Votes Against Inmate Recusals Absent
Edith Crigler Social worker 377 31.6% 65.5% 0% 2.9%
Craig Findley Businessman; State rep 377 27.6% 65.8% 0% 6.6%
D. Wayne Dunn School guidance director; Youth detention mental health administrator 191 21.5% 69.6% 0% 8.9%
Arthur Mae Perkins Teacher; Principle 191 20.9% 73.8% 0.5% 4.7%
Virginia Martinez Attorney; Public policy analyst 82 20.7% 79.3% 0% 0%
Vonetta Harris Social worker; Educational counselor 310 19.4% 74.8% 3.5% 2.3%
Salvador Diaz Police officer; Social worker; Probation officer 377 11.4% 82.8% 1.1% 4.8%
Donald Shelton Police officer 377 10.9% 89.1% 0% 0%
Ellen Johnson Parole officer 82 9.8% 90.2% 0% 0%
Ken Tupy Prosecutor; PRB legal counsel 109 4.6% 91.7% 0% 3.7%
William Norton Attorney; Prosecutor; Judge 377 1.3% 93.6% 0.8% 4.2%
Peter Fisher Police officer; Chief of police 191 0.5% 83.8% 0% 15.7%

 

There is a growing scientific consensus that prosecutors “have cognitive biases—not as a result of bad faith, but out of what we know to be common human development—that may make it hard for them to see beyond short-term law enforcement interests in winning cases and give full measure to competing interests.”[17] The job of prosecutors is to hold individuals accountable for crimes—they do not move up the professional ladder by refusing to prosecute, they do so by winning. This will-to-win can create cognitive biases, even if the prosecutor is well-intentioned.[18] These biases might make prosecutors reluctant to believe that the life sentences they worked to achieve were not necessary to public safety, making prosecutors uniquely ill-equipped to make unbiased paroling decisions.[19] The same can be said of police officers.[20] No police officer rises through the ranks by not “getting the bad guys.” The biases are similar, and the result is particularly salient in the voting record of the Board. This is against the mandate of the Illinois Constitution that sentences should be implemented with “the objective of restoring the offender to useful citizenship.”[21] The inadequacies in 3-3-1 and 3-3-2 have allowed prosecutorial and police officer bias to infiltrate the Board, which has made fairness in paroling decisions impossible.

THE SOLUTIONS[22]

Section 3-3-1: There are key amendments and additions to Section 3-3-1 that would serve to ensure the Board consists of members uniquely qualified and willing to recognize when someone has been restored to useful citizenship.

Board Member Appointment: The way Board members are appointed and approved should be amended to increase the institutional independence. Currently, appointments are made by the Governor of Illinois subject to advice and consent of the Illinois Senate.[23] Board members are subject to removal by the Governor, creating an institutional structure where the members may be removed as easily as they are appointed.[24] While the importance of a Board that represents a diversity of interests and that is diverse in qualifications is clear,[25] current law relies on the Governor to ensure such diversity, which is inappropriate given how the political tides fluctuate. This method of appointment and removal creates a Board full of members vulnerable to undue political influence.[26] Instead of gubernatorial appointments, Illinois should adopt a new process for appointment where a special panel made up of representatives from different branches of government and the criminal justice system makes Board recommendations to the Governor.

Hawaii offers a model for Illinois, with a panel “composed of the chief justice of the Hawaii supreme court, the director, the president of the Hawaii Criminal Justice Association, the president of the bar association of Hawaii, a representative designated by the head of the Interfaith Alliance Hawaii, a member from the general public to be appointed by the governor, and the president of the Hawaii chapter of the National Association of Social Workers.”[27] Notably, the paroling rate in Illinois was 10% in Fiscal Year 2015.[28] Paroling rate in Hawaii was 34.5% in Fiscal Year 2015.[29]

Illinois should create a Special Appointment Committee composed of the chief justice of the Illinois supreme court, the chair of the Illinois Criminal Justice Information Authority, a representative designated by the head of the Interfaith Alliance Illinois, the president of the bar association of Illinois, a member from the general public appointed by the Governor, one formerly incarcerated person who has served at least 10 years in IDOC appointed by the John Howard Association, and the president of Illinois chapter of the National Association of Social Workers.

This Special Appointment Committee shall recommend no less than three candidates for the parole board to the Governor of Illinois any time a vacancy shall arise in the Board. The Special Appointment Committee will also have reviewing authority over the Board and can hold a hearing to remove for cause any Board member, including when a Board member’s voting rate reflects antagonism toward granting parole.

Board Member Qualifications: The qualifications for the current board members should be amended to foster a diverse board with sound professional qualifications and knowledge-based expertise, coupled with a belief in the possibility of rehabilitation and redemption. The power vested in the Board is enormous—the power to decide whether a sentence has served its goal of rehabilitation. Half of the Board members highlighted by Injustice Watch are former prosecutors and police officers.[30] There is strong evidence that such a skewed board accounts for the near impossible battle people face in trying to make parole.[31]

A diverse and competent board is critically important, and Illinois’s current Board does not reflect such an understanding. Section 3-3-1(b) should be amended to add a requirement of a bachelor’s degree and three years actual experience in a variety of fields. We propose removing the fields of penology, corrections work, law enforcement and law and adding social science, developmental brain science, psychiatry, statistical analysis, and applied mathematics, to mitigate the biases reflected in the current board. With our proposed amendment to 3-3-2 requiring use of risk-assessment tools, having a board member who understands risk-assessment tools and the potential biases in those tools is necessary. There should also be a limit placed on Board members with backgrounds as prosecutors or law enforcement, with a maximum of two. Finally, there should be serious consideration to including a formerly incarcerated person.

Section 3-3-2: There are additional amendments to Section 3-3-2 that are necessary to ensure that duly qualified Board members effectively and ethically carry out their duty to meaningfully consider parole for eligible candidates.

Continuing Education: Section 3-3-2 needs an addition requiring Board members to participate in continuing education on an annual basis in order to ensure that Board members remain qualified to make paroling decisions and that their decisions are well-informed. Continuing education is a requirement in a variety of fields.[32] It is well-recognized that continuing education opportunities are important to ensure that workers stay current with the latest development, skills, and new technologies required to remain competent in their field.[33] The Board members hold positions of power that requires them to think critically, address unique problems, and serve an ever-changing, multicultural society. It is therefore important that Board members stay current in restorative justice practices, sociology and brain development science, as well as technological advancements, particularly, risk assessment tools and the potential biases therein.

Panel Hearing Restructuring: To improve the panel structure for parole hearings, Section 3-3-2 should be amended to require a panel of five members to vote in hearings. This will reduce the number of meetings each Board member must attend, streamline the hearing process, and maintain or increase the level of diverse expertise at each hearing because of concurrent qualification changes to Section 3-3-1. The result will be three panels of five members each, one from each qualified profession. Finally, the amendment will remove the unreasonable penalty to a client’s parole chances when a Board member cannot attend.[34]

Use of a Validated Risk Assessment Tool: The Board is already required to utilize a risk assessment tool during parole proceedings, but statutes should go further to limit bias and promote the state’s goals to reduce the prison population[35] and prioritize rehabilitation.[36] Under Section 3-3-7(21), the Board must set a parole client’s level of supervision to correspond with the likelihood of recidivism calculated by “a validated risk assessment.” Additionally, the Illinois Crime Reduction Act of 2009 mandates:

  • 15(b): “[T]he Prisoner Review Board shall adopt policies, rules, and regulations that within 3 years of the effective date of this Act result in the adoption, validation, and utilization of a statewide, standardized risk assessment tool across the Illinois criminal justice system. 730 ILCS 190/15(b).

In passing the Crime Reduction Act, Illinois joined the majority of U.S. states in its use of a risk assessment tool to make decisions at various stages in the criminal justice process.[37] Illinois selected the Service Planning Instrument (SPIn) out of a wide range of possible assessment tools to determine the risks and needs of parole clients and persons on Mandatory Supervised Release.[38] Despite the statutory requirement that the Illinois system complete risk assessment implementation by January 2013, that goal has still not been reached, as of November 2018. Delays have continued to hinder the use of this tool. The Illinois Sentencing Policy Advisory Council (SPAC) reports that IDOC now conducts a SPIn assessment upon admission in 100% of cases, but the scores are not always being sent to PRB. This is a shortcoming that needs to be remedied so people up for parole can receive the full benefits of the risk assessment tools. The delays demonstrate the difficulties inherent in implementing new technology in a system that is not completely equipped for change, but the fact that implementation is almost complete is a good sign.

SPAC asserts that the SPIn assessment has been validated, but research on this point is mixed.[39] A validation study determines the level of accuracy (e.g. low, medium, high) of a prediction when compared to subsequent data that confirms or discounts that prediction. For example, if a SPIn score suggests that a potential parole client is a low risk to recidivate and has low supervision needs, and it turns out that the parole client, once released, succeeds in his re-entry program and is not charged with any new crime for three years, the assessment validity for that case would be very high. This process of validating these predictions is aggregated across classes of incarcerated people to determine the overall level of validity. Illinois’ use of SPIn is itself a risky move; the predictive validity of the tool has not been measured in a U.S. population. Though it shows good validity in a Canadian sample, that study did not analyze the validity of the tool when applied to Black or Hispanic parolees.[40] This raises serious questions about the continued use of SPIn (and SPIn-W for justice-involved women); the tool’s creator will conduct a validity study based on Illinois data after three years of implementation. Board members and policymakers should ensure this analysis happens. If the results suggest that SPIn suffers from low validity, racial disparities in assigning risk scores, or any other serious discrepancy, the PRB, elected officials, and criminal justice advocates should object to the continued use of SPIn unless and until its shortcomings can be remedied. The following recommendations assume that the current tool will be validated in the coming years.

Annual Risk Assessment Audit: The Board, in consultation with experts in actuarial sciences from neutral agencies like the Illinois Sentencing Policy Advisory Council and the Illinois Criminal Justice Information Authority, shall conduct an annual audit of the risk assessment’s source code, inputs, and outputs, to review for bias and continuing validity. The audit should result in recommendations to update the tool, keep it as-is, or end the use of the tool if it is no longer useful. Because notice and predictability in criminal justice policy changes are desirable, the decision to switch to a new validated risk assessment tool for parole decisions should be implemented with a focus on minimizing any impact on clients’ parole hearings.

The Board should promulgate regulations that govern the audit process and consult specifically with those Board members with a background in actuarial sciences to determine the procedure. Because of the current mystery surrounding many actuarial tools, the Board should explore the possibility of adopting an open-source method of determining risk and needs in parole.

Presumptive Release and Right to Appeal: If a potential parole client’s risk assessment score favors release, it is presumed the Board will follow the assessment’s recommendation. The process for departures from a presumptive release model are based on Minnesota’s Sentencing Guidelines as a model.[41] The Board may only depart from the presumption of release if there are “identifiable, substantial, and compelling circumstances to support a departure.”[42] When the Board denies parole, the parole client has the right to know his risk score and the right to appeal the adverse decision for reasons consistent with Administrative Procedure Act review.[43] The first appeal may be in front of the initial panel or the Board en banc, but there must be a pathway to the Illinois Circuit Court for review.

CONCLUSION

When viewed together, the Illinois Constitution’s mandate that sentencing decisions be made with a person’s eventual return to useful citizenship in mind, the Illinois’ Governor’s goal to significantly reduce the prison population by 2025, and the virtual lack of meaningful parole opportunity in this state paint a picture of a clear need for reform. The recommendations we propose will immediately improve the parole process in Illinois by prioritizing expertise, efficiency, technological developments, and diversity. We hope these reforms will be part of a legislatively enacted comprehensive return to discretionary parole because each positive step will help to build a fairer system in the aggregate.

[1] See Pub. Act No. 80-1099 (1977), codified at Ill. Rev. Stat. ch. 38, §§ 1001-1008.

[2] The United States Sentencing Commission defines the cut off for a de facto life sentence at 470 months, or just shy of 40 years. Life Sentences in the Federal System, The United States Sentencing Commission (Feb. 2015), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/20150226_Life_Sentences.pdf. As of September 2018, in IDOC there were 1,594 persons serving life sentences, 152 with sentences over 100 years, and 3,918 serving sentences between 40-100 years; about 100 persons were sentenced before 1978 and are parole-eligible. Prison Population on 09-30-18 Data Set, IDOC, available at https://www2.illinois.gov/idoc/reportsandstatistics/Pages/Prison-Population-Data-Sets.aspx.

[3] Ill. Const. 1970, art. I, § 11.

[4] 28 Nov Media Alert: HB531 (Senate Floor Amendment 1) Passes Illinois General Assembly, Restore Justice Illinois (Nov. 28, 2018), https://restorejusticeillinois.org/hb-531-senate-floor-amendment-1-passes-illinois-general-assembly/.

[5] 730 ILCS 5/3-3-1(a)(1), (3), (5), (6).

[6] 730 ILCS 5/3-3-1(a)(2).

[7] 730 ILCS 5/3-3-1(a)(4).

[8] 730 ILCS 5/3-3-1(b)

[9] See Section 3-3-2(a)(1), (3), (3.5), (3.6), (4), (5), (6), (8), (9).

[10] 730 ILCS 5/5-3-2(a)(2).

[11] “A tie vote, or a vote of less than a majority of the appointed members of the Board favoring parole, shall result in the denial of the application for parole.” Ill. Admin. Code § 1610.40(b)(4)(b).

[12] In IDOC, the tool currently being used is called the Service Planning Instrument, or SPIn.

[13] 730 ILCS 5/3-3-7(21).

[14] For example, research has shown that while a high level of community supervision for high-needs, high-risk persons on parole helps reduce the risk of recidivism, a high level of supervision for a low-risk person on parole can actually increase the recidivism risk.

[15] ACLU, Practitioner’s Handbook for the Illinois Department of Corrections.

[16] Emily Hoerner & Jeane Kuang, Records of Illinois Parole Board Show Just How Rarely Inmates Win Release, InjusticeWatch (July 27, 2018), https://www.injusticewatch.org/news/2018/illinois-inmates-parole-board-voting-records/; The current Board members missing from the chart are Lisa Daniels (July 2018), Patricia Wilson (July 2018), & Joseph Ruggiero (Sept. 2018).

[17] Rachel E, Barkow, Prosecutorial Administration: Prosecutor Bias and the Department of Justice, 99 Va. L. Rev. 217, 313 (2013) (citing studies).

[18] Id.; see also Barbara O’Brien, A Recipe for Bias: An Empirical Look at the Incentives and Bounded Rationality In Prosecutorial Decision Making, 74 Mo. L. Rev. 999, at 1011–13 (2009); Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2 Wis. L. Rev. 291 (2006) (discussing the ways common cognitive biases can affect a criminal prosecution at all stages).

[19] Id.

[20] See Moa Lidén, et. al., The Presumption of Guilt in Suspect Interrogations: Apprehension as a Trigger of Confirmation Bias and Debiasing Techniques, 42 Law and Human Behavior 336 (2018); Steve. D. Charman, et. al., Cognitive Bias in the Legal System: Police Officers Evaluate Ambiguous Evidence in a Belief-Consistent Manner, 6 J. of Applied Research in Memory & Cognition 193, 198–201 (2017).

[21] Ill. Const. 1970, art. I, § 11.

[22] The proposed amendments of 730 ILCS 5/3-3-1 & 3-3-2 in this white paper are meant to coincide with a more comprehensive reform that would bring back discretionary parole in Illinois. However, the amendments are designed to positively impact current IDOC residents eligible for parole even absent any other reform.

[23] 730 ILCS 5/3-3-1(b).

[24] 730 ILCS 5/3-3-1(c).

[25] Paul Bigman, Discretion, Determinate Sentencing and the Illinois Prisoner Review Board: A Shotgun Wedding, Group 8–9 (Chicago Law Enforcement Study, 1979).

[26] Edward E. Rhine, Joan Petersilia, & Kevin R. Reitz, The Future of Parole Release, 46 Crime and Justice 279, 287 (Nov. 7, 2016).

[27] Hawaii Code, Title 30 § 353-61.

[28] Illinois Prisoner Review Board, 39th Annual Report, January 1 to December 31, 2015, 8 (2015), available at https://www2.illinois.gov/sites/prb/Documents/prb15anlrpt.pdf.

[29] Hawaii Paroling Authority, 2017 Annual Statistic Report: Fiscal Year 2017, July 1, 2016 to June 30, 2017, 2 (2017), available at https://dps.hawaii.gov/wp-content/uploads/2017/11/2017-Annual-Report.pdf.

[30] Hoerner & Kuang, supra note 15.

[31] See supra text accompanying notes 15–20.

[32] The Importance of Continuing Education, South University (Aug. 3, 2012), https://www.southuniversity.edu/whoweare/newsroom/blog/the-importance-of-continuing-education-98201.

[33] Id.

[34] Proposed changes to 3-3-2 (a)(2) “…the decision to parole and the conditions of parole for all eligible prisoners shall be determined by a majority vote of a panel of five members of the Prisoner Review Board. The panel may not include any more than one person from a given profession. Abstentions shall not be counted as votes against parole.”

[35] Illinois State Commission on Criminal Justice & Sentencing Reform, 25% by 2025: Reducing the Illinois Prison Population by 25% (2016), available at http://www.icjia.org/cjreform2015/research/25-by-2025.html.

[36] Ill. const. 1970, art. 1 § 11.

[37] Robina Institute Nationwide Report of Risk Assessment Tools in Parole and Revocation.

[38] Orbis Partners, SPIn Adult Assessment, Orbis (2018) available at: https://orbispartners.com/assessment/adult-assessment-spin/.

[39] Illinois State Commission on Criminal Justice and Sentencing Reform Final Report 24 (December 2016).

[40] Jay P. Singh, Handbook of Recidivism Risk / Needs Assessment Tools 194–96 (2018).

 

[41] Minnesota Sentencing Guidelines Commission, Minn. Sentencing Guidelines and Commentary (2018).

[42] Id.

[43] These circumstances are similar to those laid out by the Board in Ill. Adm. Code § 1610.70(c)(3):

  1. A)        the decision is contrary to law or the guidelines governing decision;
  2. B)        the reasons given for the decision do not support the decision;
  3. C)        there is not sufficient factual support in the record to support the decision;
  4. D)        the length of the release date is disproportionate with other like cases or sentences. (promulgated by the Prisoner Review Board as reasons members of the Board may reverse or modify a previous prior release date offer under Sect. 3-3-2.1(h)).