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Prosecutorial objection to bringing a parole system to Illinois

April 29, 2018

by Joseph Dole

Introduction by Stateville Correctional Center Debate Coach Katrina Burlet

On March 21, the Stateville Correctional Center Debate Team, hosted a public debate about bringing a parole system back to Illinois – one of two states which currently does not have parole. As Illinois boasts the No. 1 most overcrowded prison system in the US – operating at 151 percent capacity – and the system is spending $2 billion and counting each year, the time to reinstate parole was undoubtedly yesterday.

A program detailing the agenda for the debate, biographies of all 13 debate team members and definitions of terms used in the parole debate by experts in corrections and the law was prepared that begins with this dedication: “The Justice Debate League exists to form debate teams behind bars. We work to welcome incarcerated people into the competitive debate community and empower the voices of people who are rarely heard in our society. You can find out more about the League at justicedebateleague.org.”

On March 21, the Stateville Correctional Center Debate Team, hosted a public debate about bringing a parole system back to Illinois – one of two states which currently does not have parole.

The team picked up a historic debate about the best way to evaluate people for release: a purely scientific evaluation that determines exactly how likely it is that a person will recidivate, or a clinical, subjective evaluation which measures the amount of rehabilitation a person has pursued and achieved during their incarceration.

Ten percent of the members of the Illinois General Assembly as well as invited community members attended. To say the debate was well-received would be a significant understatement.

Plans to restore parole to Illinois are now in the works, and Joe Dole, our resident genius from the debate team, here offers an argument about why prosecutors should not be a part of that conversation.

Additional arguments about parole by members of the Stateville Debate Team can be found at ParoleIllinois.org. To learn more about the Justice Debate League, email justicedebateleague@gmail.com.

Speech given by Joseph Dole at Stateville Correctional Center on March 21, 2018

“Got Buried” – “SB” on the tombstones stands for Still Breathing; a sentence of life without parole amounts to being buried alive. To win the debate for parole in the court of public opinion, Joe labeled one tombstone, “Your son sentenced to LWOP” and another, “Your daughter sentenced to 150 years.” – Art: Joe Dole

Good morning, ladies and gentlemen. My name is Joseph Dole. I am a writer, artist and activist. First, thank you all for attending. Before I begin, I would just like to mention the fact that there are currently over 5,000 people in the Illinois Department of Corrections who will die here after many decades in prison if something isn’t done. That’s one out of every nine people currently in IDOC custody, and damn near every one of us on this stage.

It’s also worth mentioning that every one of the accomplishments listed in my bio in that program you’re holding occurred while in prison. (His bio follows the speech – ed.) Prior to prison, my only educational achievement was a high school diploma from night school. I say that to say this – people do change and grow, even in the darkest places.

With that, I would like to explain why legislators should take prosecutorial opposition to bringing parole back with a grain of salt.

By far, the greatest obstacle to bringing an effective parole system to Illinois, especially one applied to people currently in prison, is state prosecutors. Professor John Pfaff writes in his book “Locked In”:

“Prosecutors have been and remain the engines driving mass incarceration. Acting with wide discretion and little oversight, they are largely responsible for the staggering rise in admissions since the early 1990s. Any attempts to fight mass incarceration, then, must involve thinking anew about the prosecutors’ incentives.”[i]i

They “are political creatures, who get political rewards for locking people up and almost unlimited power to do it,”[ii] and the fact that they are “leading opponents of sentencing and other penal reforms”[iii] is well-documented.

Moreover, prosecutor associations have undue influence over most victims’ rights groups. This is because, as Professor Marie Gottschalk noted in her book “Caught,” “they helped create a conservative victims’ rights movement premised on a zero-sum vision of justice that pitted victims against offenders.”[iv] This explains why there are very few non-revenge based victims’ rights groups out there, and why prosecutors marginalize them.

By far, the greatest obstacle to bringing an effective parole system to Illinois, especially one applied to people currently in prison, is state prosecutors.

Prosecutors only acknowledge those who demand ever-harsher sentences for crimes – which increases prosecutorial power. When actual crime survivors are surveyed, however, a majority state that they “are in favor of shorter prison sentences and increased investment in crime prevention and rehabilitation.”[v]

With the epidemic of wrongful convictions, especially here in Illinois, sociologists, psychologists and legal analysts have been examining one of the main culprits – prosecutorial misconduct. As a result, evidence continues to accumulate showing that many prosecutors become severely biased and unable to objectively consider new information that doesn’t support their theory of the crime or person they think is responsible.

It begins with the dehumanization of the defendant.[vi] Prosecutors are trained to “depersonalize” by only referring to the person as either “defendant” or some derogatory term like “animal” or “monster”.[vii]

With the epidemic of wrongful convictions, especially here in Illinois, sociologists, psychologists and legal analysts have been examining one of the main culprits – prosecutorial misconduct.

Writing in the Georgia Law Review, Mary Bowman explains how “this dehumanization can have subconscious, neurological effects in that people may fail to activate the part of the brain typically involved in social perception when viewing members of highly stigmatized groups.”[viii] This is just one type of the moral disengagement prosecutors practice to make it easier for juries to convict, but which also affect prosecutors themselves.

In the context of parole, dehumanization prevents prosecutors from being able to view people convicted of crimes as human, capable of change, and deserving of a second chance.

There is a long list of cognitive biases and tunnel vision that prosecutors pick up on the job. Not only do they obtain case files from police who may have had tunnel vision throughout the investigation and zeroed in on an innocent person as the culprit,[ix] but prosecutors may have confirmation bias where they seek out information that supports their theory and discard evidence that disputes it.[x]

Then, if the person is convicted, it seems to confirm they were right, making the prosecutor more resistant to accepting that they were wrong. This is known as status-quo bias.[xi] Similarly, prosecutors are affected by both hindsight bias[xii] and outcome bias,[xiii] which are closely related and basically mean that people erroneously judge a decision by whether it resulted in a satisfactory outcome.

In the context of parole, dehumanization prevents prosecutors from being able to view people convicted of crimes as human, capable of change, and deserving of a second chance.

All of these biases, in conjunction with both institutional pressures to win at all costs, also known as a conviction psychology,[xiv] and what is known as “group think”[xv] – where people within an organization basically go along to get along – have led to many innocent people being imprisoned and prosecutors obstinately refusing to accept that fact.

In terms of parole, all of these same biases make prosecutors extremely reluctant to believe that the life sentence they fought so hard to obtain was not really necessary to keep the public safe.

Prosecutors are often racially biased as well. A study released by the Women Donors Network showed that in 2014, 95 percent of prosecutors were white and 79 percent were white men.[xvi] The director of their Reflective Democracy Campaign noted that “[t]he tremendous power and discretion of those positions among one demographic group virtually guarantees inequality in our criminal justice system.”[xvii]

Gottschalk explains that in the federal court system, “research suggests that federal prosecutors, not federal judges, are the most persistent source of racial disparities in sentencing” and that “they were nearly twice as likely to charge African American men with an offense carrying a mandatory minimum sentence compared to white men.”[xviii]

In terms of parole, all of these same biases make prosecutors extremely reluctant to believe that the life sentence they fought so hard to obtain was not really necessary to keep the public safe.

Due to the fact that federal and state prosecutors have the same biases, it is highly likely that racial disparities in sentencing of people in state court are similarly attributable to state prosecutors. As Gottschalk also noted, “The findings of two centuries of research on mandatory sentences are compelling: They … contribute to wide unwarranted disparities in punishment, especially racial disparities.”[xix]

One small, but powerful, example of open racism at play in the Cook County State’s Attorneys’ Office, which was clearly in line with the process of dehumanization and other moral disengagement tactics, as well as indicative of a conviction psychology, was the “Two-Ton Contest,” which had prosecutors angling “for assignments to cases involving the heaviest criminal defendants,”[xx] “The first prosecutor to convict four thousand pounds of flesh won.”[xxi]

Around the office, this was also known as “Niggers by the Pound.”[xxii] Nicole Gonzalez Van Cleve, who studied the culture of the Cook County Courthouse and worked in the prosecutor’s office herself, also noted that “[p]rosecutors are the driving force behind the Supreme Court’s approval of racial profiling … and pretextual steps.”[xxiii]

Nor is it always conscious racism. In “Locked In,” Pfaff writes that implicit racial bias may cause prosecutors to “view crimes committed by Black people as more serious than the same offenses committed by otherwise identical white people.”[xxiv]

There’s one other probable component of the effects of racial bias of prosecutors, and that’s its effect on victims’ rights groups. As noted earlier, prosecutors had a heavy hand in creating the current conservative victims’ rights groups.

Nor is it always conscious racism. In “Locked In,” Pfaff writes that implicit racial bias may cause prosecutors to “view crimes committed by Black people as more serious than the same offenses committed by otherwise identical white people.”

Moreover, just as prosecutors are overwhelmingly white and the suburbs, which are also overwhelmingly white and “still exert undue influence on who is elected to prosecute disproportionately urban crime,”[xxv] prosecutors also influence who is considered a victim, what rights they have, and more. Van Cleve found that among prosecutors in Cook County “there is no recognition that people of color and victims are often one and the same.”[xxvi]

Thus, it is highly likely that most of today’s victims’ rights groups aren’t truly representative of the majority of victims and thus may be racially biased themselves.

Besides the fact that many prosecutors are biased, unethical and incapable of being objective in reviewing a person’s sentence, the main reason prosecutors should be excluded from the conversation about reinstating a parole system in Illinois is because parole should be about two inextricably linked questions which most prosecutors have absolutely no knowledge or experience that would assist them in answering: First, is the person coming up for parole still a threat to society?; and, second, can the person be returned to useful citizenship as our state constitution seems to require?[xxvii]

The first question is the one prosecutors erroneously feel they possess knowledge that can help them answer. They feel that knowing the intimate details of the individual crime gives them some type of insider knowledge into whether that person is a threat to society.

However, prosecutors: A) refuse to consider that people become less dangerous as they grow older;[xxviii] B) are often wrong about the facts or have hidden exonerating evidence[xxix] that they don’t want to come to light; C) have political motivations for maintaining the status quo in both the conviction and sentence;[xxx] and D) ignore the fact that it “is well established in the criminology literature that ‘the current offense that one commits is a very poor predictor of the next offense.’”[xxxi]

Regarding the second question, prosecutors don’t follow defendants’ growth and maturation throughout their prison sentences. Instead, they hold a static, biased view of each person, believing he or she remains the evil monster that the crime, in the prosecutor’s mind, proves the defendant to forever be. Prosecutors possess no information about who the person is now, and as we’ve seen with the clemency process where they receive this information in the petition but still have a blanket policy of objecting to every petition, it would make little difference if they did.

The bottom line is that, just as the Urban Institute recently recommended,[xxxii] a parole system should be concerned with who the individual is now and not what crime he or she may or may not have committed decades ago. This information is more the domain of the Illinois Department of Corrections and qualified experts on any newly established parole board.

For all of the reasons I’ve described, any parole board should be free of any prosecutors or ex-prosecutors as members. Their biases and lack of relevant expertise will only hinder the process.

The bottom line is that, just as the Urban Institute recently recommended, a parole system should be concerned with who the individual is now and not what crime he or she may or may not have committed decades ago.

In conclusion, as others have noted, “public officials seeking to meaningfully reform the criminal justice system will be stymied if they give prosecutors a veto or a significant voice over a final proposal.”[xxxiii] Here in Illinois it has gotten so bad that criminal justice reformers are actually writing legislation based on what prosecutors are willing to accept.

This needs to stop immediately. Enough is enough. We can’t achieve reforms, true reforms, by appeasing the people who oppose them the most.

For all of the reasons I’ve described, any parole board should be free of any prosecutors or ex-prosecutors as members. Their biases and lack of relevant expertise will only hinder the process.

Thank you for your time.

Send our brother some love and light: Joseph Dole, K84446, Stateville Correctional Center, P.O. Box 112, Joliet, IL 60434. Also, visit him on Facebook, at https://www.facebook.com/JosephDoleIncerateratedWriter/ and on his website, http://www.realcostofprisons.org/writing/.

Joe’s bio in debate program

Joseph Dole has won numerous awards for his writing, including most recently a first-place award in the 2017 Columbia Journal Writing Contest. He is the author of the books “A Costly American Hatred” and “Control Units and Supermaxes: A National Security Threat.” He has been published in a number of academic journals, including the Mississippi Review, The Columbia Journal, The Journal of Ethical Urban Living, and the journal Justice Power and Resistance, as well as in numerous other print media and online. More of his work is available at his Facebook page, https://www.facebook.com/JosephDoleIncarceratedWriter/. He is currently serving a life-without-parole sentence at Stateville Correctional Center. He spent nearly a decade of his life in isolation at the notorious Tamms Supermax Prison. Recently, he was granted a scholarship by the Davis-Putter Scholarship Fund in recognition of his activism. Joe was incarcerated at age 22 and is ineligible for parole.

[i] John Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (Basic Books, New York, NY) 2017 p. 206.

[ii] Adam Gopnik, “How We Understand Mass Incarceration: A new book argues that, in the effort to fix the prison epidemic, we are addressing the wrong things and missing the true problem.” The New Yorker, April 10, 2017; reviewing Pfaff supra note ii.

[iii] Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics (Princeton University Press, Princeton, New Jersey) 2015, p. 266-267, citing several sources including “In the case of penal reform in Illinois see Steve Bogira, ‘Pat Quinn, Political Prisoner: A Case Study in How Electoral Politics Stymies Real Reform,’ Chicago Reader, Oct. 28, 2010.’” See also Pfaff supra note 1, at p.132; and Jessica Pishko Twitter, “Prosecutors Are Banding Together to Prevent Criminal-Justice Reform: A new investigation shows that DA associations are thwarting changes to the death penalty, sentencing, and more,” The Nation, Oct.18, 2017.

[iv] Gottschalk, supra note 3, at p. 267 citing Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (Cambridge University Press, New York) 2006, chs. 4-6.

[v] “A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons.” Urban Institute, July 2007, p. 42.

[vi] Mary Bowman, “Mitigating Foul Blows,” 49 Ga. L. Rev. 309,330 (2015).

[vii] See e.g., Nicole Gonzalez Van Cleve, Crook County: Racism and Injustices in America’s Largest Criminal Court (Stanford University Press, Stanford, California) 2016, p.71.

[viii] Bowman supra note 6, at p. 368; citing Phillip Atiba Goff, et al. Not Yet Human; Implicit Knowledge, Historical Dehumanization and Contemporary Consequence, 94 J. Personality & Soc. Psychol. 292, 293 (2008).

[ix] Bowman supra note 6, at p. 329; Daniel S. Medwed, Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent (New York University Press, New York) 2012, p. 22.

[x] Bowman supra note 6, at p. 329; Medwed supra note 9, at p. 22-24 and 127.

[xi] Medwed supra note 9, at p. 127; citing Daniel S. Medwed, “The Prosecutor as Minister of Justice; Preaching to the Unconverted From the Post-Conviction Pulpit,” 84 Wash. L. Rev. 35, 51-53 (2009), and Alafair S. Burke, “Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science,” 47 Wm. & Mary L. Rev. 1587, 1612 (2006).

[xii] Bowman supra note 6, at p. 359.

[xiii] Bowman supra note 6, at p. 359-360.

[xiv] Heather Schoenfeld, “Violated Trust: Conceptualizing Prosecutorial Misconduct,” Journal of Contemporary Criminal Justice, Vol. 21, No. 3 p. 250-271 (August 2005), at p. 252; Bowman supra note 6 at p. 329-330.

[xv] Medwed supra note 9, at p. 210, note 26, citing Aviva Orenstein, “Facing the Unfaceable: Dealing with Prosecutorial Denial in Postconviction Cases of Actual Innocence,” 48 San Diego L. Rev. 401, 427 (2011); Barbara O’Brien, “A Recipe for Bias: An Empirical Look at the Interplay Between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making.” 74 Mo. L. Rev. 999, 1044 (2009).

[xvi] Joe Watson, “Study: 95 Percent of Elected Prosecutors are White,” Prison Legal News, February 2017, p. 44.

[xvii] Id.

[xviii] Gottschalk supra note 3, at p. 267, citing Sonja B. Starr and M. Marit Rehavi, “Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker,” Yale Law Journal 123.1 (2018), 28.

[xix] Gottschalk supra note 3, at p. 262, citing Michael Tonry, “The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings” in Michael Tonry, ed. Crime and Justice: A Review of Research, v. 38 (Chicago University Press, Chicago) 2009, p. 65-114; Traci Schlesinger, “The Failure of Race Neutral Policies: How Mandatory Terms and Sentencing Enhancements Contribute to Mass Racialized Incarceration,” Crime & Delinquency 57.1 (2011); p. 56-81.

[xx] Medwed supra note 9, at p. 80.

[xxi] Id.

[xxii] Steve Bogira, Courtroom 302: A Year Behind the Scenes in an American Criminal Courthouse (Vintage Books, New York) 2005, p. 69; Van Cleve supra note 7, at p. 54.

[xxiii] Van Cleve supra note 7, at p. 145.

[xxiv] Pfaff supra note 1, at p. 146.

[xxv] Pfaff supra note 1, at p. 171.

[xxvi] Van Cleve supra note 7, at p.171.

[xxvii] Illinois Constitution of 1970, Article 1, Section 11.

[xxviii] Pfaff supra note 1, at p. 190-192; Robert Weisberg, Debbie A. Mukumal, and Jordan D. Segall, “Life In Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California,” Stanford Law School, Stanford Criminal Justice Center (Sept. 2011), p. 17; Gottschalk supra note 3, at p. 189.

[xxix] Margaret Z. Johns, “Reconsidering Absolute Prosecutorial Immunity,” 2005 BYU L. Rev. 53, 62-63 (2005); Radley Balko, “The Untouchables: America’s Misbehaving Prosecutors, and the System That Protects Them,” The Huffington Post (US Edition) Aug. 1, 2013, updated Aug. 5, 2013.

[xxx] See notes 1-3 above.

[xxxi] Gottschalk supra note 3, at p. 168; quoting Robert J. Sampson, “The Incarceration Ledger: Toward a New Era in Assessing Societal Consequences,” Criminology & Public Policy 10.3 (2011), 823.

[xxxii] “A Matter of Time” supra note 5, at p. 50.

[xxxiii] Bert “Criminal Justice Reform Will Never Happen If We Defer to Prosecutors, Experts Say.” The Open File: Prosecutorial Misconduct and Accountability, Jan. 29, 2018, www.prosecutorialaccountability.com; citing Rachel Barkow and Mark Osler, “Designed to Fail: The President’s Deference to the Department of Justice in Advancing Criminal Justice Reform.” William & Mary Law Review, Vol. 59, No. 2, p. 387-474 (2017).

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