iLLinoiS

disproportionate Justice
impact study Commission

final Report
Submitted to the
illinois General assembly

december 2010
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Table of Contents
Letter from the Co-Chairs  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . iii
Commission Appointees, Participants, and Staff  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . v
Executive Summary . .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 1
Introduction and Overview  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 9
Commission Findings
	

Section 1: National and Illinois Context  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 12

	

Section 2: Independent Research Findings  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 28

	

Section 3: Public Hearings  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 39

	

Section 4: Commission Recommendations .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 42

References  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 49

Appendices (available for download at www.centerforhealthandjustice.org)
	

Appendix A: Enabling Legislation, Extension Legislation	

	

Appendix B: Schedule of Commission Meetings, Advisory Groups, and Public Hearings

	

Appendix C: Public Hearing Witness Lists, Transcripts, Testimony	

	

Appendix D: Selected Relevant Publications	

	

Appendix E: Minority Report

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Acknowledgments
This report was authored by Arthur Lurigio, Ph.D.; Thomas Lyons, Ph.D.; Laura Brookes, M.P.H.; and Tim Whitney,
J.D. of the Center for Health and Justice at TASC on behalf of the Illinois Disproportionate Justice Impact Study
Commission.
Staff and logistical support to the Commission were provided by the Center for Health and Justice at TASC and the
Jane Addams College of Social Work at the University of Illinois at Chicago.
Independent of the Commission, the Center for Health and Justice at TASC received support from the U.S.
Department of Justice, Bureau of Justice Assistance (Grant No. 2008-DD-BX-0200) to conduct some of the activities
described in this report. Points of view or opinions in this document are those of the authors and do not represent the
official position or policies of the U.S. Department of Justice.
Funding for printing of this publication was provided in part by The Chicago Community Trust.
This report can be downloaded at www.centerforhealthandjustice.org.

R e c o m m e n d e d C i tat i o n
The Illinois Disproportionate Impact Study Commission. (2010). Illinois Disproportionate Justice Impact Study Commission: Final
Report. Chicago, IL: author.

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The Illinois Disproportionate Justice Impact Study Commission
Hon. Mattie Hunter, Co-Chair • Hon. Arthur L. Turner, Co-Chair

Dear Honorable Members of the Illinois State General Assembly:
We are pleased to present this final report from The Illinois Disproportionate Justice Impact Study
Commission. The Commission was established in October 2008 through state statute (Public Act 095-0995,
which passed unanimously through the General Assembly before being signed by the Governor) in response
to alarming evidence of disproportionately high rates of drug-related arrests, sentences, and incarceration
among minority communities—and especially African-American populations—in Illinois.
The Commission was charged to study the nature and extent of the harm caused to minority communities
through the practical application of state drug laws and offer recommendations to address the
disproportionate impact that even seemingly neutral laws can have on minority communities.
The Commission conducted original research with data from the Illinois State Police and the Office of the
Clerk of Cook County, reviewed state drug laws, reviewed the literature on the consequences of high rates
of incarceration, and received public testimony of facts and experiences from a variety of stakeholders
during hearings held around the state in the spring of 2010. Based on the findings of this work, which are
presented in this report, the Commission has articulated recommendations intended to increase fairness
and equality in the dispensation of justice relative to drug-related offenses and to mitigate the impact of
disproportionate involvement in the criminal justice system among minority communities.
It is our hope that these recommendations will guide the state in enacting policies and ensuring oversight of
practices that promise equal justice for all populations.
Sincerely,

Mattie Hunter						
Illinois State Senator, 3rd District				
							

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Arthur L. Turner
Illinois State Representative, 9th District
Deputy Majority Leader

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Commission Appointees, Participants, and Staff
A pp o i n t e d M e m b e r s
Hon. Mattie Hunter (CO-CHAIR) – Illinois Senate, 3rd District
Hon. Arthur L. Turner (CO-CHAIR) – Illinois House of Representatives, 9th District (through November 2010)
Hon. Arthur Turner II (CO-CHAIR) – Illinois House of Representatives, 9th District (beginning November 2010)
Hon. Anita Alvarez – Cook County State’s Attorney
Brenetta Howell Barrett – Pathfinders Prevention Education Fund
Arthur Bishop – Illinois Department of Juvenile Justice (beginning July 2010)
Hon. Tim Bivins – Illinois Senate, 45th District
Walter Boyd – Protestants for the Common Good
Rev. Byron T. Brazier – Apostolic Church of God
Hon. Abishi C. Cunningham, Jr. – Cook County Public Defender
Jack Cutrone – Illinois Criminal Justice Information Authority
Hon. Thomas J. Dart – Sheriff of Cook County
Patrick Delfino – Illinois Office of the State’s Attorney Appellate Prosecutor
Hon. William Delgado – Illinois Senate, 2nd District
Hon. Timothy C. Evans – Chief Judge, Circuit Court of Cook County
Kurt Friedenauer – Illinois Department of Juvenile Justice (through July 2010)
Hon. Paul D. Froehlich – Illinois House of Representatives, 56th District
Marco Jacome – Healthcare Alternative Systems
Hon. Lisa Madigan – Illinois Attorney General
Jonathon E. Monken – Illinois State Police
Michael J. Pelletier – Illinois State Appellate Defender
Marian E. Perkins – Cook County Bar Association
Michael Randle – Illinois Department of Corrections (through September 2010)
Hon. Dennis M. Reboletti – Illinois House of Representatives, 46th District
Hon. Dale A. Righter – Illinois Senate, 55th District
Michael Rodriguez – Enlace Chicago
Hon. Chapin Rose – Illinois House of Representatives, 110th District
Terry Solomon – Illinois African-American Family Commission
Gladyse Taylor – Illinois Department of Corrections (beginning September 2010)
Neli Vazquez-Rowland – A Safe Haven Foundation
Jody P. Weis – Chicago Police Department
Standish E. Willis – Law Office of Standish E. Willis Ltd.

P art i c i pat i n g R e pr e s e n tat i v e s o f A pp o i n t e e s
Bruce Banks – Illinois State Police
Luis Carrizales – Enlace Chicago
Pat Coughlin – Cook County State’s Attorney’s Office
Salvador Tony Godinez – Cook County Sheriff ’s Office, Cook County Department of Corrections
James Jackson – Chicago Police Department
Mercedes Luque-Rosales – Cook County State’s Attorney’s Office
Rob Moon – Cook County Sheriff ’s Office
Dave Neal – Illinois Office of the State’s Attorney Appellate Prosecutor
Patrick Reardon – Office of the Cook County Public Defender
Cara Smith – Office of the Illinois Attorney General
Sara Sullivan – Illinois Department of Corrections
Patrushka Thigpen – Illinois African-American Family Commission
Eugene Williams – Chicago Police Department
Jeanne Wrenn – Cook County State’s Attorney’s Office

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R e s e arc h A d v i s o r y Gr o u p
Creasie Finney Hairston, Ph.D. – Jane Addams College of Social Work, University of Illinois at Chicago
Erica Hughes – Illinois Criminal Justice Information Authority
Kathleen Kane-Willis – Illinois Consortium on Drug Policy, Roosevelt University
Steve Karr – Illinois Department of Corrections
David Olson, Ph.D. – Loyola University Chicago
Mikaela Rabinowitz – Northwestern University Student
Stephanie Schmitz-Bechteler – Illinois Consortium on Drug Policy, Roosevelt University
Anne Smith – Clerk’s Office of the Circuit Court of Cook County
Donald Stemen, Ph.D. – Loyola University Chicago
Joseph Strickland, Ph.D. – Jane Addams College of Social Work, University of Illinois at Chicago
Christine Devitt Westley – Illinois Criminal Justice Information Authority

P o l i c y A d v i s o r y Gr o u p
Walter Boyd – Protestants for the Common Good
Mary Ann Dyar – Chicago Metropolis 2020, Adult Redeploy Illinois
Roger Ehmen – Westside Health Authority
Salvador Tony Godinez – Cook County Sheriff ’s Office, Cook County Department of Corrections
Creasie Finney Hairston, Ph.D. – Jane Addams College of Social Work, University of Illinois at Chicago
Kathleen Kane-Willis – Illinois Consortium on Drug Policy, Roosevelt University
Terence Mitchell – Illinois Department of Human Services
Malcolm Rich – Chicago Appleseed Fund for Justice
Gwendolyn Rowan – Cook County Bar Association
Stephanie Schmitz-Bechteler – Illinois Consortium on Drug Policy, Roosevelt University
Tracy Siska – Chicago Justice Project
Terry Solomon – Illinois African-American Family Commission
Patrushka Thigpen – Illinois African-American Family Commission
Phillip Thomas – Chicago Community Trust
Chyvette Williams, Ph.D. – University of Illinois at Chicago
Jeanne Wrenn – Cook County State’s Attorney’s Office

C e n t e r f o r H e a l t h a n d J u s t i c e at T A S C
( S t a f f t o t h e C o m m i ss i o n )
Pamela F. Rodriguez
Daphne Baille
Laura Brookes
John Carnevale, Ph.D., Carnevale Associates (consultant)
Amelia de Landa
Kanu Iheukumere (consultant)
Ian Jantz
Arthur J. Lurigio, Ph.D., Loyola University Chicago (consultant)
Thomas Lyons, Ph.D., Chicago State University (consultant)
Lorena Roque
Sharon Sheridan
Terry Walker
Tim Whitney, J.D. (consultant)
George Williams

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Executive Summary
In October of 2008, Senate Bill 2476 became law in Illinois. Passed unanimously
by the Illinois General Assembly and signed by the Governor, Public Act 095-0995
established the Illinois Disproportionate Justice Impact Study (DJIS) Commission,
a non-partisan, multi-disciplinary group of policymakers, agency leaders, and justice professionals charged with examining the impact of Illinois drug laws on racial
and ethnic groups and the resulting over-representation of racial and ethnic minority groups in the Illinois criminal justice system. The Commission was tasked with
making recommendations to mitigate or eliminate that disproportionality. This report
reflects the outcome of that effort in accordance with the law.
The legislation that became PA 095-0995 was premised on the observation that although rates of drug use among racial and ethnic groups are similar (Substance Abuse
and Mental Health Services Administration, 2005; 2009), African Americans and Latinos are arrested, convicted, and incarcerated for drug crimes far more frequently
than whites. National surveys consistently show that African Americans, whites, and
Latinos are equally likely to use drugs relative to their representation in the general
population, but the criminal justice consequences for drug involvement disproportionately affect minorities—particularly young, African-American men in poor, urban
communities (The Sentencing Project, 1999). With both anecdotal and statistical evidence demonstrating that Illinois reflected these national trends, the General Assembly sought to better understand the scope and nature of disproportionality in Illinois,
to identify potential causes of that disproportionality, and ultimately to offer solutions
on opportunities to eliminate it.
Under the co-chairmanship of State Senator Mattie Hunter (D-Chicago) and State
Representative Arthur L. Turner (D-Chicago), and with members named specifically
by the law or appointed by State Senate and House leaders, the Illinois DJIS Commission pursued four primary courses of activity:

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Conducting a meta-review of the national and Illinois context for disproportionate minority contact with the justice system.

•	

Conducting independent research examining data on the arrest, prosecution,
and sentencing of different racial and ethnic groups for drug law violations
in Illinois.

•	

Convening a Research Advisory Group and a Policy Advisory Group to
review the research and analysis and provide access to additional data and
insight.

•	

Conducting three public hearings in the spring of 2010 in Chicago, Joliet,
and East St. Louis, Illinois.

National and Illinois Context
Extensive reviews of national and state research reveal that mass incarceration has
been driven largely by drug control policies that emphasize enforcement over substance abuse prevention and treatment strategies, and that overuse prison as punishment for drug-law violations. These policies have especially and adversely affected
African Americans throughout the United States. The collateral consequences of imprisonment for drug crimes are varied and significant, harming individuals, families,
and communities.
In Illinois, the rate of imprisonment for drug offenses is substantially higher for African Americans than for whites—a finding that has been replicated in several studies. Throughout the 1990s, African Americans represented an average of 80 percent
of all persons admitted to Illinois prisons for drug offenses. The disproportionate
incarceration of minorities for drug possession cannot be explained by differential
drug use among people of different racial backgrounds; drug use rates among whites,
African Americans, and Latinos are comparable.

Commission Findings
from Independent Research
Beyond the large body of national and state literature reviewed, under the auspices
of the Illinois DJIS Commission, independent research was conducted to examine
data on the arrest, prosecution, and sentencing of different racial and ethnic groups
for drug law violations. To identify the factors related to disproportionality, two large
data sets were analyzed: the first consisted of statewide criminal history records from
Illinois, and the second consisted of countywide court records from Cook County,
which encompasses Chicago. The data sets are from 2005, the most recent year for
which this comprehensive information was available. Input from Policy and Research
Advisory Groups of the Commission also was included in the findings.

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The Commission’s independent research revealed the following:

Racial Disparities in Enforcement
Nonwhites were arrested at a higher rate than whites relative to their representation in
the general population throughout Illinois. Arrest data indicated that disproportionality in drug arrests occurred in 62 of the 102 counties in Illinois, including urban, suburban, and rural areas. Racial disparities for drug arrests varied widely by county but
tended to be greater in jurisdictions with smaller populations of nonwhite residents.
In terms of the sheer number of people affected, most of the disproportionality in
Illinois drug laws was related to drug possession charges, which accounted for nearly
three-fourths of felony drug arrests across the state. Any attempt to address the disproportionate incarceration of minorities must first focus on how Class 4 possession
laws (the least severe of felony charges) are enforced.
A smaller example of where disproportionality at arrest is apparent is in the enforcement of the Controlled Substances Act and the Cannabis Control Act, or drug-free
zones law, which accounted for 3 percent of drug arrests in 2005. Nearly 70 percent
of these arrests took place in Cook County, and 89 percent involved nonwhite arrestees.

Increased Racial Disparities with
Accumulation of a Criminal Record
The majority of those arrested for the first time on felony drug charges in 2005 were
white; however, for subsequent arrests, the opposite was true—that is, most subsequent arrestees were nonwhite. Whites and nonwhites without criminal records were
arrested at rates that more closely correspond to their representation in the general
population, while minorities with criminal records were more likely than whites to
have subsequent arrests.
Overall, the proportion of nonwhites arrested for Class 4 drug possession (66 percent) was more than double their representation in Illinois’ general population (27
percent) (United States Census Bureau, 2010). Therefore, racial disproportionality for
arrests for low-level drug possession increases with the accumulation of a criminal record, suggesting that racial disparities are attributable, in part, to the lengthier criminal
histories of nonwhite arrestees. Increased access to diversion programs or alternatives to incarceration, coupled with simple and timely processes for expungement and
sealing, can mitigate future involvement in the criminal justice system. Without such
access, criminal histories begin to accumulate.

Disproportionate Prosecution of African Americans
In Cook County in 2005, almost 80 percent of those entering the felony court system were African-American, followed by 13 percent Latino, and 8 percent white. As

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evidence that the Cook County criminal courts are inundated with low-level drug
cases, 72 percent of the sample had a drug charge (sometimes among others), and 70
percent of them were charged with Class 4 possession. More than 60 percent of drug
defendants in the Cook County sample were charged with Class 4 possession only
and had no other charge(s).
An analysis of the decisions to either prosecute in felony court or to drop/dismiss
charges showed that, after controlling for other variables, including criminal history,
African Americans were approximately 1.8 times more likely than whites, and Latinos were approximately 1.4 times more likely than whites, to be prosecuted for any
crime.

Disparate Sentences of Whites to Court
Supervision or Probation
Most Class 4 drug possession cases were dismissed or charges were dropped in all
racial/ethnic groups, and cases were dismissed or dropped among nonwhites (45 percent) more than among whites (41 percent). Of the cases that were continued, however, African-American defendants (39 percent) were more likely than white (31 percent) and Latino (23 percent) defendants to be transferred to criminal court. Among
first-time arrestees for Class 4 possession, whites (36 percent) were more likely than
nonwhites (19 percent) to be sentenced to court supervision or probation.

Disparate Sentences of African Americans to Prison
Statewide, among defendants with a Class 4 possession charge, African Americans
were sentenced to prison at a rate almost five times greater than whites: 19 percent of
African-American defendants compared with 4 percent of white defendants. When
the sample was restricted to defendants with fewer than two previous convictions (i.e.,
roughly equal criminal histories), African Americans entering the court system were
sentenced to prison at a rate three times that of whites for a conviction for a Class 4
possession offense (10 percent versus 3 percent).
In Cook County, Class 4 possession arrestees constituted the majority of those arrested; however, relatively few were sentenced to prison for Class 4 possession only (i.e.,
without other charges). Nevertheless, the Cook County data showed that in 2005, African Americans who were arrested only for that charge were eight times more likely
than whites to be sentenced to prison. For all criminal charges, African Americans in
Cook County were nearly two times more likely to go to prison than whites.

Alternative Sentencing and Rehabilitation
Early contact with the criminal justice system provides an opportunity for rehabilitation programming and diversion from the justice system. The availability of substance
abuse treatment services through the criminal justice system appeared to differ for
white and nonwhite first-time arrestees. A limited analysis suggested that whites are

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more likely than nonwhites to participate in court diversion or probation programs.
Racial differences in access to community-based programs might vary substantially
by jurisdiction. Therefore, more research is needed to explore whether race/ethnicity
affects access to diversionary options and, if so, the nature and extent of the effect.
To address the disparity, the criminal justice system ought to take steps to intentionally
and assertively direct minority populations into sentencing alternative programming
for which they are eligible before resorting to prison sentences.

Limitations of the Data
The findings above were drawn from two large data sets that were limited in terms of
the depth and breadth of information available on the processing and outcomes of
the cases. For example, in some instances, no disposition data were available (e.g., sentences to probation). Most important, the data sets did not contain reliable information about the race/ethnicity of people of Latino origin. Without this information,
conclusions cannot be drawn about the effects of drug laws on Latinos and recommendations cannot be made about the appropriate policy and programmatic changes
needed to reduce sentencing disparities within these groups. Notwithstanding these
limitations, the study offers useful information to encourage evidence-based policy
making in Illinois’ criminal justice system.

Commission Findings from Public Hearings
In the spring of 2010, the Illinois DJIS Commission held public hearings where Commission members had the opportunity to hear the opinions and recommendations of
citizens from across the state, including elected officials, researchers, service providers, national policy experts, and formerly incarcerated persons.
Researchers and policymakers testified about: drug laws and enforcement practices,
which are potentially problematic in terms of their affect on disproportionate minority confinement; lessons learned from disparity-reduction efforts in Wisconsin;
the cumulative and insidious effects of justice involvement on minorities; trends in
national drug policy as well as current “hot button” issues, such as medical marijuana
and the crack cocaine/powder cocaine sentencing disparity; and the shortcomings in
current data collection mechanisms.
From a court perspective, speakers representing the judiciary and local probation services spoke of: the breadth of social, economic, medical and other factors contributing to recidivism; the need to address all these issues in attempting to respond to the
problem of disproportionality; the need to invest a portion of drug forfeitures into
developing community programs; and the gap between the need for social and behavioral healthcare services and the availability of such services.

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Community members, including people with previous criminal justice system involvement and their family members, highlighted: both the challenges and the abilities
of formerly incarcerated people to return successfully to their communities; the effectiveness of community treatment programs in restoring lives; the role of family
as a support mechanism; higher education programs as a vehicle for teaching about
addiction and criminal justice involvement; and the capacity of those with past criminal justice experiences to educate at-risk populations about the problems associated
with justice involvement. Also representing the greater community, a local business
owner recommended the creation of a special class of contracting provisions, similar
to current minority- and women-owned business provisions, for employers who hire
formerly incarcerated people.
Service providers testified about: disproportionality in different parts of the state,
including its impact on Latino communities; the role of substance abuse in criminal
behavior and the need to address holistically the problem of addiction and criminal
involvement; the effectiveness of community treatment programs in restoring lives;
the use of restorative justice models in repairing the social fabric damaged by criminal
justice system involvement; steps being taking by the juvenile justice community to
mitigate the problems of disproportionality; and personal experiences as case managers and as people with past criminal justice involvement.
The testimony from the public hearings, together with the Commission’s independent
research findings and the state and national context, serve as the inputs shaping the
Commission’s recommendations to address disproportionality in the justice system.

Commission Recommendations
In response to the quantitative and qualitative analysis of the current state of disproportionate minority contact with the criminal justice system in Illinois, and in consideration of the expertise from practitioners and policymakers, the Commission developed the following ten recommendations to begin to mitigate the harmful effects of
disproportionality and lay a foundation for ongoing analysis and progress.
Stat e - L e v e l P o l i c y
Recommendation 1: As a matter of process, legislators should be able to request the
attachment of a Racial & Ethnic Impact Statement to bills or appropriation measures
that impact criminal offenses, penalties, sentencing, probation, or parole policies. The
Racial & Ethnic Impact Statement should be drafted by the existing Sentencing Policy
Advisory Council, which would also initiate the analysis necessary to understand the
impact of the legislation, either through its own effort, or in collaboration with the
Illinois Criminal Justice Information Authority, the Racial & Ethnic Impact Research
Task Force (described below), or other research entities.
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Recommendation 2: The State of Illinois should establish a Racial & Ethnic Impact
Research Task Force to ensure the standardized collection and analysis of data on
the racial and ethnic identity of arrestees. The charge of the Task Force would be to
develop a framework for data collection at decision points along the criminal justice
system continuum with a goal of standardized information management in the Illinois justice system and all of the state and local components of that system. This
information would be used to meaningfully analyze and understand disproportionality that may occur across the justice process, as well as any other benefits such a standardized system would afford. The Task Force would operate under the guidance of,
and potentially the auspices of, the Sentencing Policy Advisory Council or the Illinois
Criminal Justice Information Authority.
Stat u t o r y a n d P ract i c e C h a n g e s
Recommendation 3: The State of Illinois should establish a Task Force to review
Section 407 of the Illinois Controlled Substances Act (720 ILCS 570/407), commonly referred to as the “drug-free zone laws.” The purpose of this Task Force would
be to commission and analyze research evaluating: 1) the effectiveness of the laws at
achieving their protective intent (e.g. shielding children from drug sales); and 2) the
potential unintended consequences of the laws beyond their protective intent. Based
on this research, the Task Force would recommend amendments to the provisions
720 ILCS 570/407 to preserve their protective intent while mitigating their disproportionate impact on minority communities.  
Recommendation 4: The State of Illinois and local governments should support
jurisdictions in maximizing their use of diversionary programs and sentencing alternatives, including day reporting centers, drug schools, drug courts and other specialty
courts, first offender probation, and designated program supervision. This recommendation encourages a multi-faceted approach, including:
1)	

Establishing local justice system planning commissions, included within or
dovetailing with Adult Redeploy Illinois (730 ILCS 190/20).

2)	

Providing training opportunities for prosecuting attorneys, as well as public
and private defense attorneys, on the scope of available alternatives. Such
training opportunities could be accredited for continuing legal education
credit by the Minimum Continuing Legal Education Board of the Supreme
Court.

3)	

Clarifying the array of available alternatives by combining them into a single
statute, consistent with the alignment and clarification goals of the CLEAR
Commission.

4)	

Assuring appropriation of funding suitable for full utilization of the abovementioned alternatives (see Recommendations 9 and 10).

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Recommendation 5: Each local state’s attorney’s office, not local law enforcement,
should conduct felony review for filing of charges in new cases. Recognizing the practical and logistical realities of this requirement, the General Assembly should establish
a benchmark for population of a county above which this requirement is mandated.
Additionally, each county should establish its own benchmark for disproportionality
of its justice population compared to its general population that would trigger a mandate of felony review by the state’s attorney’s office.
M i t i g at i o n o f L o n g - T e r m Har m
Recommendation 6: The State of Illinois should prohibit the inclusion of drug-related arrests that do not result in conviction in criminal histories collected for employmentrelated purposes. County clerk offices and third-party background search firms should
be held liable for unauthorized release of such information through civil penalties.
Recommendation 7: The State of Illinois should establish automatic expungement
and sealing procedures for Class 4 felony possession charges or convictions that result
in one or more of the following:
•	

Successful participation in a drug court or other specialty court

•	

Successful completion of first offender probation

•	

Successful completion of probation under the supervision of the designated
program

Recommendation 8: The State of Illinois should develop and promote a classification of business known as a “community enterprise,” making such businesses eligible
to receive state, county, and local monies and tax incentives as a result of training
and/or hiring individuals who were formerly criminally involved and/or incarcerated.
Similar to current minority-owned and woman-owned business enterprise standards,
the community enterprise status would establish standards for application and certification, which would allow designated organizations to compete for contracts with
state, county, and local governments.
Funding
Recommendation 9: In support of Recommendation 4, jurisdictions should define
a fixed portion, or criteria that would trigger the allocation of a portion, of existing
drug asset forfeiture funds to support treatment and diversion programs in addition
to enforcement and prosecution activities.
Recommendation 10: In support of Recommendation 4, the State of Illinois should
establish budget policy and priorities to promote full utilization of existing diversion
programs or alternatives to incarceration, as well as the accompanying planning processes and training as supported by Adult Redeploy Illinois.
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Introduction & Overview
In October of 2008, Senate Bill 2476 became law in Illinois. Passed unanimously
by the Illinois General Assembly and signed by the Governor, Public Act 095-0995
established the Illinois Disproportionate Justice Impact Study (DJIS) Commission,
a non-partisan, multi-disciplinary group of policymakers, agency leaders, and justice professionals charged with examining the impact of Illinois drug laws on racial
and ethnic groups and the resulting over-representation of racial and ethnic minority groups in the Illinois criminal justice system. The Commission was tasked with
making recommendations to mitigate or eliminate that disproportionality. This report
reflects the outcome of that effort in accordance with the law.1
The legislation that became PA 095-0995 was premised on the observation that
although rates of drug use among racial and ethnic groups are similar (Substance
Abuse and Mental Health Services Administration, 2005; 2009), African Americans
and Latinos are arrested, convicted, and incarcerated for drug crimes far more frequently than whites. National surveys consistently show that African Americans,
whites, and Latinos are equally likely to use drugs relative to their representation in
the general population, but the criminal justice consequences for drug involvement
disproportionately affect minorities—particularly young, African-American men in
poor, urban communities (The Sentencing Project, 1999). With both anecdotal and
statistical evidence demonstrating that Illinois reflected these national trends, the
General Assembly sought to better understand the scope and nature of disproportionality in Illinois, to identify potential causes of that disproportionality, and
ultimately to offer solutions on opportunities to eliminate it.
Illinois is not alone in its attention to disproportionate minority contact with the
justice system. In light of a growing body of evidence and acknowledgement of
disparities, other jurisdictions have recently engaged in activities of a similar or related nature. A few examples include: Iowa and Connecticut, both of which passed
1 PA 095-0995 prescribed an end date for the Commission’s work of December 31, 2009. In early 2010, Commission Co-chairs proposed a one-year extension via SB 3780, which was approved by the General Assembly and
the Governor.

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laws requiring racial impact statements on certain types of proposed legislation;
Minnesota’s Sentencing Guidelines Commission, which has been providing racial
impact statements on proposed sentencing policies without a law requiring it; and
related research, policy, and practice efforts forged by the federal government and
in other states and localities, including but not limited to Delaware; Bloomington,
Indiana; Mecklenberg County (Charlotte), North Carolina; Milwaukee, Wisconsin;
New Mexico; New York; Oregon; San Diego, California; and Wisconsin (Mauer,
2009; Drug Policy Alliance, 2010).

Commission Structure and Process
Under the co-chairmanship of State Senator Mattie Hunter (D-Chicago) and State
Representative Arthur L. Turner (D-Chicago), and with members named specifically by law or appointed by State Senate and House leaders, the Illinois DJIS Commission pursued four primary courses of activity:
1.	 National and Illinois Context. The Commission enlisted the expertise of
the Center for Health and Justice at TASC, which received support from the
Bureau of Justice Assistance (BJA), to conduct a meta-review of both the national and Illinois context on the relationship between drug laws and racial or
ethnic disproportionate representation in the justice system. This meta-review
considered national statistics on the issue and examined Illinois’ existing drug
laws and work done to-date on assessing and addressing disproportionate impact in Illinois.
2.	 Independent Research. Also with support from BJA, the Center for Health
and Justice at TASC conducted independent research, examining data on the
arrest, prosecution, and sentencing of different racial and ethnic groups for
drug law violations.
3.	 Advisory Groups. The Commission convened both a Research Advisory
Group and a Policy Advisory Group. Hosted by the Jane Addams College
of Social Work at the University of Illinois at Chicago, these advisory groups
reviewed the research and analysis described above, and provided access to
additional data and insight to inform the process.
4.	 Public Hearings. The Commission convened three public hearings in the
spring of 2010 in Chicago, Joliet, and East St. Louis, soliciting the testimony
and perspective of policymakers, justice practitioners, service providers, and
community stakeholders to share research findings and input on various strategies to reduce racial and ethnic disproportionality.

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As a result of the activities previously described, the Commission developed ten
recommendations for policy and practice changes to begin to address the issue of
disproportionality in the criminal justice system and lay a foundation for ongoing
analysis and progress on this critical social and financial issue.

Organization of the Report
This report is divided into four sections. The first section provides a broad context for
racial and ethnic disproportionality as it relates to trends in crime- and drug-control
policies in the United States since the 1980s. This context includes an examination of
the collateral consequences of mass incarceration and disparities in drug law enforcement, along with a brief analysis of the comparative costs associated with incarceration and its alternatives. This context also includes a review of Illinois’ drug laws and
existing justice-based programs which have the potential to exacerbate or alleviate the
problem of disproportionality in Illinois.
The second section presents the results of the independent research conducted under
the auspices of the Illinois DJIS Commission, describing the principal findings of
that research. The input of the Policy and Research Advisory Groups are included in
both of the first two sections.
The third section summarizes the Commission’s public hearings.
The fourth section enumerates ten recommendations that are based on the study’s
findings, as well as the findings of other investigations and the dialogue that was held
with a broad range of stakeholders, including researchers, state and local policymakers, government officials, and community representatives.
The report also includes appendices with additional details and resources relating to
the work of the Commission and disproportionality generally.

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C OMMISSION FINDINGS

SECTION 1

National and Illinois Context
The Prison Explosion
The ongoing expansion of America’s prison population has been characterized as
“mass incarceration,” which has two defining features (Garland, 2001a, b). The first
is the “sheer numbers” of inmates and the second is the incarceration rate (Garland,
2001a, p. 1). By either measure, America’s penal system dwarfs all others worldwide.
The prison population in the United States quadrupled from 1980 to 2000 and has
exceeded the one million mark every year since 1995. At the end of 2001, more than
1.3 million adults were incarcerated in state and federal prisons in the United States
(Bureau of Justice Statistics, 2002c). On any given day in 2005, more than seven
million Americans were under correctional supervision—more than two million of
them incarcerated in prison or jail (Bureau of Justice Statistics, 2007). By midyear
2005, the number of incarcerated adults had grown to 1.5 million (Harrison & Beck,
2006a). In 2007, the prison population in the United States increased by more than
25,000 inmates. At the start of 2008, more than 2.3 million adults were behind bars.
The second largest prison population in terms of sheer numbers is in China, which
incarcerates an estimated 1.5 million people (Walmsley, 2005).
In terms of the second defining feature of mass incarceration, with approximately
750 people incarcerated per 100,000, the rate of imprisonment in the United States
far exceeds that of most other countries and is more than five times higher than it
is in other industrial democracies and eight times the incarceration rate in Germany
(Walmsley, 2006). The rate of incarceration per 100,000 Americans climbed from 139
in 1980 to 478 in 2000—a 243 percent increase (Bureau of Justice Statistics, 2002a).
Among 20- to 40-year olds, the age category at greatest risk for incarceration, the increase in the imprisonment rate was even higher than it was in the general population
(Mauer, 1999). Throughout the 1980s and 1990s, the United States ranked among
the top three industrialized nations with regard to incarceration rate. For example,
in 1995, among 59 nations in Europe, Asia, and North America, the United States’
incarceration rate of 600 per 100,000 persons was second only to Russia’s rate of 690

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per 100,000 (Mauer, 1997). In its 2008 report, revealing that for the first time in the
nation’s history one out every 100 adults in the United States was incarcerated, the
Pew Charitable Trust (2008) stated: “America…is the global leader in the rate at which
it incarcerates its citizenry, outpacing nations like South Africa and Iran” (The Pew
Center on the States, 2008).
The single most important cause of the explosive rise in the nation’s prison population is the burgeoning number of people convicted of drug offenses (Tonry, 1995).
In 1980, 19,000 inmates, or 6 percent of all inmates, were imprisoned for drug offenses; in 1999, 251,200 inmates, or 20 percent of all inmates, were sent to prison
for drug offenses—an astounding increase of 1,222 percent. From 1980 to 1999, the
number of people with drug offenses who were admitted to prison rose ten-fold,
from 15 to 150 inmates per 100,000 Americans. The largest one-year increase in the
number of people incarcerated with drug offenses (52 percent) occurred from 1988
to 1989, after the passage of the Anti-Drug Abuse Act of 1988, which intensified
the current war on drugs (Bureau of Justice Statistics, 2002b). The United States now
has 100,000 more prisoners incarcerated just for drug offenses than the European
Union has incarcerated for all offenses (Harrison & Beck 2006b; Walmsley, 2006).
Drug control policies and their attendant enforcement of drug laws play a major role
in disproportionate minority confinement (Mauer & King, 2007). According to the
Sentencing Project (1998):
While the number of people incarcerated in a given state is in part a reflection
of crime rates, it is also related to a variety of policy decisions both within and
outside the criminal justice system…many of these decisions have implications for the racial and ethnic composition of a state’s prisons and jails. Within
the criminal justice system sentencing policy choices have a significant effect
on these outcomes.

Drug Law Enforcement and Racial Impact
Racial disparities in the legal processing of drug crimes stem from several factors.
Specially, race-based differences are grounded partly in the way drugs are sold in urban neighborhoods, where drugs are more likely to be sold on the street and in other
public places with high visibility, facilitating law enforcement’s ability to make arrests.
In impoverished communities that lack adequate health and social resources, the justice system is often the first responder to the problems associated with addiction.
Drug laws themselves also play a role in the disproportionate impact of the drug war
on minorities. For example, as discussed below, Illinois law identifies certain “drug
free zones” that surround schools, churches, and public parks. A conviction for a drug
delivery offense in one of these zones results in enhanced penalties. Urban areas have
a much higher concentration of such zones; hence, people convicted of a delivery
crime in those communities are much more likely to receive a more serious sentence

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than people convicted in a suburban or rural community.
Changes in the drug laws in the late 1980s led to longer sentences for drug convictions, adding to the prison overcrowding crisis and disrupting the lives of families and
communities. Between 1986 and 1991, for example, the number of African Americans incarcerated for drug crimes rose four times as fast as the number of whites.
In 1994, one out of every three African-American men between the ages of 20 and
29 was under criminal justice supervision. Nationally, the disparity widened during
the late 1980s and 1990s in the federal and many of the state court systems, with a
long-standing sentencing disparity for the possession of crack cocaine versus powder
cocaine (U.S. Sentencing Commission, 1998). As discussed below, policies that regard
drug addiction as a crime problem rather than a public health problem have disproportionately affected African-American men by foreclosing employment prospects
and disenfranchising millions of such individuals (The Sentencing Project, 1998).

Disproportionate Justice Impact in Illinois
The proportion of African Americans arrested for drug offenses in Illinois increased
steadily from 1983 to 1992, from 46 percent to 82 percent of those arrested for such
crimes. The proportions of whites arrested decreased steadily during those years,
from 41 percent to 11 percent (Lurigio, 2005). From 1990 to 2000, the number of
African Americans admitted to prison in Illinois for drug offenses grew six-fold, from
1,421 to 9,088. In contrast, the number of whites admitted to prison for drug offenses remained relatively stable (Lurigio, 2005). From 1994 to 2003, the drug arrest
rate in Cook County increased 26 percent and the drug arrest rate outside of Cook
County more than doubled (Illinois Criminal Justice Information Authority, 2004).
From 1992 to 2004, the number of state prison sentences imposed in Illinois for
drug crimes increased 82 percent. During that time, the state’s overall adult prison
population grew 39 percent but the number of people with drug offenses grew by 89
percent (Illinois Department of Corrections, 2005).
In 2001, research demonstrated that three factors predicted a sentence to prison for a
drug law violation in Illinois: nature of the current offense (possession versus sales),
history of imprisonment, and race (Olson, 2001). As noted previously, disproportionality is not explained by rates of illicit drug use, which vary little by race or ethnicity.
Past-month illicit drug use rates among persons 12 or older in Illinois are 10.1 percent
among African Americans, 8.2 percent among whites, and 6.2 percent among Latinos
(Substance Abuse and Mental Health Services Administration, 2005; 2009).
In updating its investigation into racial disparities among people sentenced to prison
for drug-law violations, Human Rights Watch (2008) concluded that disproportionality in 2003 was less severe than it had been in 1996 but was still dramatic and widespread. For example, the prison admission rate for drug offenses remained ten times

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higher for African Americans than for whites. Among larger states, HRW (2008) reported that rates of disproportionality in sentences for drug-law violations had increased from 1996 to 2003. In 2003, nearly 40 percent of African Americans admitted to prison were convicted of a drug crime compared with 25 percent of whites.
In Illinois, the number of African Americans entering prison that year for a drug
crime (8,052) was four times greater than the number of whites (1,982). Controlling
for their representation in the state’s general population, African Americans in 2003
were 24 times more likely than whites to be incarcerated for a drug offense. African
Americans constituted 75 percent of those admitted to prison in Illinois for a drug
crime that year; whites constituted only 18 percent.
In Illinois, in 2005, whites constituted 66 percent of the general population, African
Americans 15 percent. That same year, whites constituted only 28 percent of the Illinois prison population, but African Americans comprised 61 percent (Illinois Department of Corrections, 2005; U.S. Census Bureau, 2006). In 2005, African Americans
were 9.1 times more likely to be incarcerated in prison or jail in Illinois than whites,
ranking 14th among the worst states in the nation on black-white disparities in incarceration and well above the national average of a 5.6-fold differential in black-white
confinement (Mauer & King, 2007). In Illinois, where drug laws do not differentiate
between powder and crack cocaine, the state still experienced a stark increase in the
numbers of minorities arrested, prosecuted, sentenced, and incarcerated for drug offenses.

Collateral Consequences of
Mass and Disproportionate Incarceration
Racial disproportionality in the criminal justice system undermines the fundamental
principles of a just society, including the ability of people to have a voice in government, to hold a decent job, to safely raise and support a family, and to participate
fully in the citizenship of our country. The disenfranchisement of those convicted
of drug crimes leads to undemocratic outcomes that affect all members of society.
Further, the expense of disproportionate incarceration is a burden to every taxpayer
in this country. Public policies must consider the implications of current drug laws,
policies, and enforcement strategies that perpetuate racial disparities in criminal justice
processing and harm individuals, families, and communities.

Impact on Crime
Incarceration can increase crime in communities. A person who knows someone
who is incarcerated is more likely to have a lower opinion of the police, courts, and
the criminal justice system as a whole. Neighborhoods with high levels of incarceration have weaker informal social control mechanisms than neighborhoods with low
levels of incarceration (e.g., willingness of neighbors to call police) (Rose & Clear,

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1998). Communities with greater numbers of incarcerated residents are more socially
disorganized than communities with fewer numbers of incarcerated residents (Rose
& Clear, 2004). Mass imprisonment weakens the deterrent effect of prison. In one
study, one-third of persons sentenced to probation elected to go to prison rather than
be sentenced to community supervision with conditions, which exposes them to the
criminogenic and stigmatizing effects of incarceration (Petersilia, 1990).

Impact on Families
Incarceration leads to absent fathers, a shortage of marriageable men (i.e., those with
steady employment), and erects barriers to couples’ ability to marry (Bureau of Justice Statistics, 2000; Hairston, 2001; Lane, 2004; Phillips, & Bloom, 1998). Children
with an incarcerated parent are more likely than other children to engage in antisocial
behavior as well as to experience emotional and behavioral disturbances, a negative
self-image, estrangement from family and friends, eating and sleeping disorders, high
levels of anxiety, and developmental and cognitive deficits (Gabel, 1992). They are
also more likely to have contact with the police and juvenile justice system (Commonwealth of Virginia, 2002). Children with incarcerated mothers are especially
negatively affected. A large majority of incarcerated mothers (85 percent) retain their
parental rights when they return home to care for their school-aged children. However, lengthy periods of separation create adjustment problems for both mothers and
children (Bloom & Steinhart, 1993; Dressel & Barnholl, 1994; Eddy & Reid, 2002;
Murray & Farrington, 2005).
Incarceration also has a devastating impact on the family (The Sentencing Project,
1997). Since 1991, the number of minors with a parent in state or federal prison rose
from more than 500,000 to more than 1.5 million. Of these children, nearly half are
African American. Most children with one or more parents in jail or prison are shuffled between relatives or informal placements, or they become entrenched in the child
welfare system. They are often separated from their siblings and reside with caregivers
who lack the social supports and resources to meet the children’s needs.
The disruptive effects of parental incarceration are likely to continue after a formerly
incarcerated person is released into the community. Even if reunification with children
is an option, the stigma of incarceration creates legal and social barriers in addition to
a number of other difficulties for newly released parents. In turn, their children have
a high propensity for psychosocial difficulties, such as conduct disorders, delinquency,
learning problems in school, and teen pregnancy and parenthood. Adjustment problems are likely to follow these children as they enter adulthood.

Impact on Employment and Economic Well-Being
A criminal conviction has a cumulative, negative impact on income over the lifespan,
particularly for older individuals (Harris & Keller, 2005; Nagin & Waldfogel, 1998). A
criminal record creates a major barrier to employment (Pager 2003). Business owners

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who claim to be non-discriminatory in their employment practices rarely hire applicants with criminal records, and especially if the job seekers are African-American
(Pager & Quillian, 2005). People in emerging adulthood experience numerous episodes of employment before finding a “good job.” During this period, their wages
increase and their resumes develop. Imprisonment derails this process and locks individuals into low-wage, unstable jobs (Weiman, 2007).
One study estimates that 40 percent of African-American men will temporarily or
permanently lose their right to vote as the result of a felony conviction (The Sentencing Project, 1998). (In Illinois, individuals with a felony conviction regain their
voting rights upon release from incarceration.) In addition, state legislators have recently expanded the authority of non-criminal justice agencies and groups to access
criminal histories for purposes of employment screening, occupational licensing, and
certifications, which often legally compel employers to exclude those with criminal
backgrounds (Harris & Keller, 2005).

Impact on Criminal Justice Costs
The disproportionate involvement of African Americans in the justice system exacerbates the systemic and fiscal burden of people with drug offenses on Illinois’
counties and municipalities. Illinois spends one out of every 20 dollars of revenue on
corrections. Illinois spends 51 cents on corrections for every dollar spent on higher
education. During only the first eight months of 2010, federal and state governments
have spent more than $35 billion on the war on drugs, mostly on supply-reduction
efforts (Drug Sense, 2010). The concentration of law enforcement resources spent
on drug crimes has had several harmful byproducts. Research suggests that significant
increases in drug enforcement initiatives have siphoned resources away from other
law enforcement efforts. For example, an investigation in Florida found that increases
in the state’s arrests for drug offenses during the 1980s were associated with decreases
in the state’s arrests for property crimes (Benson & Rasmussen, 1991). Similarly, in
Illinois, from 1984 to 1989, increases in arrests for drug offenses coincided with decreases in arrests for driving while intoxicated (Benson & Rasmussen, 1996).
An over-reliance on costly imprisonment for drug-crime convictions has resulted in
fewer funds being available for community-based correctional alternatives. Probation
and parole populations have been growing at the same rate as prison populations,
but funding for probation and parole agencies has lagged far behind that of prisons,
leading to heavier caseloads for probation and parole officers and more probation
and parole violations (Mauer, 1999). Even more disturbing are the findings of a study
of the effects of imprisonment on California’s budget, which suggested that prison
construction and maintenance drained dollars from the state’s higher education and
healthcare budgets (Greenwood et al., 1994).

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Impact on Social Costs
Mass incarceration has had a fundamentally pernicious effect on American society
(James, 2002; Pattillo, Weinman, & Western, 2004). The bloated penal system is not
only the product of an underlying imbalance of social power but it also affects the
distribution of wealth and opportunities for social mobility. Specifically, mass imprisonment creates inequality by restricting the economic prospects and disrupting
the employment trajectories of former prisoners (Western et al. 2001). Further, by
causing family strain and increasing social and economic hardship, mass incarceration has triggered a process of “intergenerational detainment,” which compounds
disadvantage and increases the risk of homelessness, inadequate healthcare coverage,
and disenfranchisement among the children of incarcerated people (Foster & Hagan,
2007). Sweeping incarcerations for drug offenses have also rendered imprisonment a
more common experience in certain minority neighborhoods, thereby undermining
law enforcement’s deterrent effects and diminishing residents’ respect for the criminal
justice system (Garland, 2001b).

Impact on Health
The poorer health of African-American men at age 40 compared with white men of
the same age can be explained partially by incarceration. Periods of imprisonment
lower the prospects of marriage, employment, and education, all of which contribute
generally to declines in health (Massoglia, 2008). The rate of HIV infection among
prisoners is up to 13 times higher that of the general population, and the rate of
AIDS cases is more than triple that of the general population. Most prisoners with
HIV and hepatitis are released without knowing their seropositive status. Hence, prisons can be vectors of viral transmission to other prisoners and to the community
(Golembeski & Fullilove, 2005).

Illinois Laws and Programs
General Statutory Construction in Illinois
Criminal offenses in Illinois are categorized as misdemeanors or felonies, with multiple classes in each category that account for differences in crime severity and other
legal considerations. The distinction between misdemeanors and felonies is in terms
of the amount of incarcerative time to be served and the nature of supervision for
those convicted of crimes. Misdemeanors carry a sentence of fewer than 365 days of
incarceration, which is generally served in a county jail facility and rarely in an Illinois
state prison because of the less severe nature of the crimes and the limits on prison
capacity. Felonies carry a sentence of a year or more of either incarceration or probation supervision. Incarceration for felony offenses is generally served in an Illinois
Department of Corrections facility (i.e., prison).
Felonies are classified as Class 4, which is the least severe, Class 3, Class 2, Class 1,
Class X, and first-degree murder, which is its own class. Except for the most severe

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crimes (i.e., Class X felonies or first-degree murder) or those that involve people with
repeat offenses, Illinois law does not generally mandate prison sentences based on
felony classification or offense type, thereby allowing for judicial discretion in determining the most appropriate level of supervision and restitution. However, this is not
the case with Illinois’ drug law violations, many of which have mandatory minimum
penalties attached to them, and for which history has seen a progressive ratcheting up
of the severity of those penalties.
As in many states, the framework for drug laws in Illinois was erected in the early
1970s, in response to the increases in drug use and drug-related crime that emerged
during the Vietnam era. During the past 40 years, the structure of Illinois drug laws
has remained essentially unchanged, and many laws still appear as they were originally
written. The statute contains four major types of drug laws: the Illinois Controlled
Substance Act (720 ILCS 570), the Cannabis Control Act (720 ILCS 550), the Methamphetamine Control and Community Protection Act (720 ILCS 646), and the Drug
Paraphernalia Control Act (720 ILCS 600). The provisions of these laws, particularly
as they relate to criminal violations, closely mirror one another in structure. However,
the Controlled Substances Act is much broader in its scope than the others and includes laws related to all types of narcotics and medications, both legal and illegal.

Illinois Controlled Substances Act (720 ILCS 570)
The bulk of Illinois Controlled Substance Act (ICSA) violations fall into two categories: possession offenses, more commonly known as ‘simple possession;’ and the
manufacture, delivery, or possession with intent to manufacture or deliver offenses
(MDPI). MDPI offenses are those commonly referred to as ‘drug manufacture’ or
‘drug selling’ offenses. All three classifications—manufacture, delivery, and possession with intent to deliver—are treated identically for sentencing purposes. Other
types of drug offenses do not specifically fit into these two categories or represent
enhancements to the severity of these categories.

Possession Offenses
For possession offenses, the felony classification of the crime and the resulting options for punishment are determined by the weight of the drugs when seized, measured in grams. One gram of drugs is roughly equivalent to one packet of artificial
sweetener. The purity of the drug has no bearing on the determination of its weight.
For example, one gram of a substance which is 60 percent pure contains more of the
actual narcotic than one gram of a substance which is 20 percent pure, but both are
treated as one gram for the purposes of prosecution and sentencing. From the earliest
days of the passage of Illinois’ drug laws, possession offenses have fallen into one of
two felony classes, distinguished by the statutorily defined weight of the drugs. At or
above this threshold weight, the crime is categorized as a Class 1 felony. Any amount
below the threshold weight results in a Class 4 felony; however, there are no Class 2,
3, or X felony possession offenses.

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Historical Changes to Possession Laws
In the early 1970s, the weight that distinguished Class 4 possession offenses from
Class 1 offenses was 30 grams for both cocaine and heroin, and 200 grams for methamphetamines; however, in 1988, the threshold weight for cocaine and heroin was
reduced from 30 to 15 grams, and a graduated system of mandatory minimum sentences and extended maximum sentences was established for amounts of 100 grams
or more. Under this new system, a person convicted of possessing 100 grams of cocaine would be guilty of a Class 1 felony, and if sentenced to prison, would be subject
to a mandatory minimum of six years in prison and a maximum of 30 years, which
is the equivalent of a Class X sentence and double the statutorily prescribed length
of imprisonment for other Class 1 felonies. As the weight of drugs seized increases,
so do both the mandatory minimum sentences and the possible maximum sentences.
For possession of less than 100 grams, sentences are handed down at the discretion
of the judge.
In 1995, a provision was added to the possession laws requiring each controlled substance found in a person’s possession to be treated as a “single and separate” violation
for purposes of prosecution and sentencing. In 2000, methamphetamines were distinguished from amphetamines, and the weight distinguishing a Class 4 from a Class 1
offense was reduced from 200 to 15 grams. Thus, possession of 100 grams (roughly
a quarter-pound) of cocaine, heroin, or methamphetamine carries the same potential
sentence as aggravated criminal sexual assault.
Convictions for Class 4 drug possession send more people to Illinois prisons than
convictions for any other crime. For example, in 2002, nearly 20 percent of total
sentences to IDOC resulted from Class 4 possession convictions, resulting in 5,500
new prison admissions. The next most prevalent offense—burglary—accounted for 7
percent of new prison admissions. Class 1 possession was responsible for one percent
of new admissions.

Manufacture, Delivery, and Possession with Intent
(MDPI) Offenses
As with possession crimes, MDPI offenses characterized as manufacture, delivery,
or possession with the intent to manufacture or deliver are based on a schedule of
weights, in grams, that distinguish different levels of offenses and their attendant
sanctions.
MDPI offenses for heroin, cocaine, and morphine involve mandatory prison sentences of six to 30 years of incarceration for 15 to 100 grams; nine to 40 years of
incarceration for 101 to 400 grams; 12 to 50 years of incarceration for 401 to 900
grams; and 15 to 60 years for more than 900 grams.

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Mandatory prison sentences for MDPI offenses also apply to specified amounts of
LSD, amphetamine, barbiturates, Ecstasy, and other club drugs. MDPI offenses that
involve heroin, cocaine, and morphine in amounts greater than one gram but less
than 15 grams trigger a Class 1 felony.
In 1988, the weights that differentiated felony classes for cocaine were significantly
reduced. The distinction between Class 2 and Class 1 offenses was reduced from ten
to one gram, and the distinction between Class 1 and Class X offenses was reduced
from 30 to 15 grams. For Class X mandatory prison sentences, a graduated schedule
of elevated lengths of incarceration was imposed for greater quantities of drugs.
Also in 1988, the rules for determining what offenses were subject to probation as
an alternative to incarceration were amended such that any person convicted of an
MDPI offense involving more than five grams of cocaine was ineligible for probation
and, therefore, subject to mandatory incarceration. In 1995, the “single and separate”
provision was added to MDPI offenses.
In 2000, methamphetamine was distinguished from other amphetamines and the
schedule of weights was adjusted for methamphetamine alone. Under the new laws,
the distinction between Class 2 and Class 1 offenses was reduced from 50 to five
grams, and the distinction between Class 1 and Class X offenses was reduced from
200 to 15 grams. In 2002, the weight distinguishing Class 2 and Class 1 offenses for
heroin crimes was reduced from ten to one gram. Further, as with cocaine in 1988,
incarceration was mandated as a sentence for anyone convicted of an MDPI offense
involving more than five grams of heroin. Thus, the manufacture or delivery of five
grams (roughly 1/100 of a pound) of cocaine or heroin carries a mandatory prison
sentence of four years.

Special Sentencing Enhancements and
Provisions (720 ILCS 570/407)
The Controlled Substances Act also contains provisions for special circumstance and
enhanced penalties. Since their initial passage, these provisions have included two related to youth. The first doubles the length of sentences and amount of fines for any
people over 18 who deliver a controlled substance to anyone under 18. The second
enhances the penalty for anyone delivering a controlled substance within 1,000 feet of
a school, school bus stop, or mode of transporting children to school. The penalty is
enhanced by automatically treating any delivery under these conditions as a felony of
one class higher. Thus, any delivery of more than one gram of cocaine within 1,000
feet of a school or school grounds, for example, is treated as a Class X felony, subject
to mandatory prison time.
In the 1990s, the number and types of special circumstances were broadened, and the
resulting array of geography-based penalties came to be known as “drug-free zones.”
In 1990, delivery within 1,000 feet of public housing property and public parks re-

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sulted in an automatic elevation of felony class. In 1993, double penalties and double
fines were added for second MDPI offenses committed within 1,000 feet of a truck
stop or safety rest area. In 1997, an automatic felony class elevation was added for
delivery within 1,000 feet of any church, synagogue, or building used primarily for
worship. In 1998, an automatic felony class elevation was added for delivery within
1,000 feet of nursing homes, assisted living centers, and other complexes for the care
of the elderly.
In 2000, the provision related to public housing was expanded to include any residential property owned or leased in part by a public housing agency, including mixed-income developments. Since then, the only other major penalty enhancement to the Illinois drug law structure is a provision subjecting people with second and subsequent
offenses, for any offense described above, to possible double lengths of incarceration
and double fines, to be handed down at the discretion of the sentencing judge.
Drug-free zones are not unique to Illinois, nor are the statistics surrounding Illinois
drug-free zones the most egregious in terms of disproportionate impact. Nationwide,
however, drug-free zone laws are consistently identified in literature as a source of
disproportionality in the demographics of justice populations due to their high density and overlapping nature in urban—and predominantly minority—communities.
Across the United States, appeals of drug-free zone convictions or penalty enhancements have generally been upheld under the premise that a legitimate public purpose—the protection of certain classes of people—outweighs the alleged disproportionate result. The legitimacy of the public purpose is being called into question by
some policy and research entities, asking whether or not the protected class was even
present at the time of arrest (e.g. predominance of arrests in school-based drug-free
zones outside of normal school hours), and citing the lack of evidence of any deterrent effect (Greene, Pranis & Ziedenberg, 2006).
Illinois faced a challenge to its drug-free zone provisions in 2005. At the time, law
required the automatic transfer of violations of the school drug-free zone laws by 15
and 16-year olds to adult court, along with all of the attendant side effects of a felony
conviction. Policy advocates decried the law as “the most racially biased youth drug
law in the nation.” Data demonstrating that 99 percent of all youth transferred were
African American or Hispanic prompted legislation requiring juvenile drug cases to
begin in juvenile court (ibid.).
Advocates of fairer drug-free zone laws cite the need for a nuanced approach to the
writing and application of these laws, including factors such as the time of day the
offense occurred and the presence of the protected class. Some states have pursued
this more deliberate approach, and some have taken a further step of reducing the
size of the drug-free zones (ibid.).

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Other Provisions of the Controlled Substances Act
Knowingly bringing, or causing to be brought, into the state a controlled substance
for the purpose of manufacture or delivery, or with the intent to manufacture or deliver, constitutes drug trafficking. The penalty for drug trafficking is a prison term of
at least twice but not more than the maximum for a manufacture crime of the equivalent amount. The use of a cell phone in furtherance of drug trafficking is a Class 2
felony and possession of lesser amounts of illegal substances (e.g., less than 15 grams
of heroin) constitutes a Class 4 felony.
The ICSA also specifies three types of drug conspiracies: calculated, criminal, and
street gang criminal. A calculated drug conspiracy is a Class X felony that involves the
commission of a Class 1 or Class X manufacture or delivery or Class 1 possession
committed with the assistance of two or more other people, and with a gain of more
than $500. A criminal drug conspiracy is the commission of a manufacture, delivery,
or possession crime with at least one other person, and any act that is taken in furtherance of the crime. The penalties for such a conspiracy are the same as if the crime
had been committed. A street gang criminal drug conspiracy is a Class X felony with
a mandatory prison sentence that involves the commission of a Class 1 or Class X
manufacture or delivery crime with at least two other people as part of gang-related
activity.

Cannabis Control Act (720 ILCS 550)
The possession of less than 2.5 grams of marijuana is a Class C misdemeanor. The
possession of more than 2.5 grams but less than ten grams of marijuana is a Class
B misdemeanor. The possession of more than ten grams but less than 30 grams of
marijuana is a Class A misdemeanor. The possession of more than 30 grams but less
than 500 grams of marijuana is a Class 4 felony. The possession of more than 500
grams but less than 2,000 grams of marijuana is a Class 3 felony. The possession of
more than 2,000 grams but less than 5,000 grams of marijuana is a Class 2 felony. The
possession of more than 5,000 grams of marijuana is a Class 1 felony. A conviction
for a similar offense in the past could result in more serious charges and penalties. Illinois drug laws impose harsher penalties for the manufacture or delivery of marijuana
than for the possession of marijuana. For example, the manufacture or delivery of as
little as ten grams of marijuana is a Class 4 felony.

Methamphetamine Control and Community
Protection Act (720 ILCS 646)
Methamphetamine manufacturing laws prohibit the production of methamphetamine or methamphetamine-containing substances. The severity of the crimes range
from a Class 1 felony with the possibility of a prison sentence for the production of
less than 15 grams to a Class X felony for the production of 15 or more grams with
prison sentences ranging from six to 35 years for the production of up to 100 grams
and 15 to 60 years for the production of more than 900 grams.

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Aggravated participation in methamphetamine manufacturing, which carries more
severe penalties for lesser amounts than those specified in the simple manufacturing
laws, involves the production of methamphetamine in a multi-unit dwelling, structure, or vehicle where any of the following people are present or endangered by the
manufacture of methamphetamine: a child under the age of 18, a person with a disability, a pregnant woman, or a person 60 years of age or older who is incapable of
adequately providing for his or her own health and personal care. Aggravation is also
present when the production of methamphetamine is in a vehicle or structure protected by firearms or surveillance systems or has contributed to death, serious bodily
injury, or property destruction. Finally, aggravation is present when the production
is the result of knowingly organizing, directing, or financing the methamphetamine
manufacturing or any activities that support methamphetamine manufacturing.
The statute dictates that it is unlawful to possess, procure, transport, store, or deliver
any methamphetamine precursor, or substance containing any methamphetamine
precursor, in standard dosage form with the intent that it be used to manufacture
methamphetamine or a substance containing methamphetamine. Further, criminal
penalties are enumerated for the use of property in manufacturing methamphetamine, protecting methamphetamine manufacture, and methamphetamine-related
child endangerment, all of which are Class 2 felonies. Methamphetamine delivery
ranges from a Class 2 felony with a possible prison sentence for less than 15 grams to
a Class X felony with a mandatory prison sentence of 15 to 60 years for the delivery
of more than 900 grams. Finally, the possession of methamphetamine or a substance
containing methamphetamine is a Class 3 felony for under five grams, a Class 2 felony
for any amount from five to 15 grams, a Class 1 felony for any amount from 15 and
100 grams, and a Class X felony for any amount of more than 100 grams. The possession of more than 900 grams triggers a prison sentence of ten to 50 years.

Drug Paraphernalia Control Act (720 ILCS 600)
Drug paraphernalia is equipment, products, and materials—other than methamphetamine manufacturing materials as defined in the Methamphetamine Control and
Community Protection Act—that are intended to be used unlawfully in cultivating,
growing, harvesting, manufacturing, compounding, packaging, repackaging, storing,
containing, converting, producing, propagating, processing, preparing, planting, testing, analyzing, concealing, injecting, ingesting, inhaling, or otherwise introducing into
the human body cannabis or a controlled substance in violation of the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control
and Community Protection Act.
Violations of the Drug Paraphernalia Control Act include manufacturing, compounding, converting, producing, processing, or preparing cannabis or a controlled substance; the possession of kits intended to be used unlawfully in testing the strength or
purity of an unlawful substance; diluents and adulterates for cutting illegal substances;

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objects used for ingesting, inhaling, or introducing into the human body a controlled
substance or cannabis, such as water pipes, bongs, ice pipes, or cocaine spoons or vials. Any person who keeps for sale, offers for sale, sells, or delivers for profit any item
of drug paraphernalia commits a Class 4 felony with a minimum fine of $1,000 for
each such item. Any person 18 years of age or older who sells or delivers for profit
any item of drug paraphernalia to a person under 18 years of age is guilty of a Class
3 felony. Any person who sells or delivers for profit any item of drug paraphernalia to
a pregnant woman is guilty of a Class 2 felony. A person who knowingly possesses an
item of drug paraphernalia with the intent to use it in ingesting, inhaling, or otherwise
introducing into the human body cannabis or a controlled substance, or in preparing
cannabis or a controlled substance for that use, is guilty of a Class A misdemeanor
with a minimum fine of $750 and any other penalty prescribed for a Class A misdemeanor.

Alcoholism and Other Drug Abuse/Dependency Act
In 1987, Illinois institutionalized a systemic approach for dealing with people with substance-related offenses with the passage of the Alcoholism and Other Drug Abuse/
Dependency Act (AODADA), codified as Chapter 20 of the Illinois Compiled Statutes, Act 301. The placement of these provisions into Chapter 20 is significant. Major
provisions for the treatment for justice clients have always been the purview of the
Department of Human Services, unlike other criminal justice provisions, which are
generally written into the Illinois code relating to criminal offenses, sentencing, or
corrections. In its passage of AODADA, the legislature clearly intended that these
services be provided and monitored by a state agency with oversight over both substance abuse treatment and the justice system.

The Designated Program
The AODADA describes the eligibility and options for criminal justice interventions
in Section 40, commonly referred to as the “TASC statute.” This section mandates
the availability of treatment alternatives for people with substance-related offenses
under the supervision of a “designated program.” The option for treatment under the
supervision of the designated program was intended by the legislature to target those
who would otherwise be incarcerated in the absence of the designated program. The
legislature viewed this option as necessary to achieve its stated purpose—namely, to
provide individuals in the criminal justice system an opportunity “to lead healthy and
drug-free lives and become productive citizens in the community.”
To ensure quality and control over designated program services, the AODADA required the Illinois Department of Human Services to develop licensure criteria for
the clinical case management of criminal justice clients. This mandate resulted in
the designated program licensure provisions specified in Illinois Administrative Rule
2060.507. Among the key distinctions of this rule is the provision that the designated
program be a single organization providing uniform services statewide, with account-

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ability between and among the designated program, the courts, and the communitybased treatment network.
Since 1987, TASC has been the sole holder of the designated program license and
has provided clinical assessment and a standardized range of clinical and treatment
referral services for the criminal court system throughout the state. Those found eligible for this program are sentenced to probation with supervision by the designated
program and frequent communications with the court, which are the only mandatory
conditions of the sentence. Eligibility for this diversion option is generally limited
to people with non-violent offenses who do not have histories of Class 2 or greater
felony convictions. The pool of eligible offenders who receive services under this
statute can reach several thousand statewide in any given year.

Diversion Programs
For the past four decades, Illinois has also had several statutorily mandated diversion
options for certain classes of eligible drug offenses or drug-involved offenses. Those
with first-time offenses who plead guilty to, or are found guilty of, a Class 4 possession drug offense are eligible for a specialized form of probation. This specialized
supervision contains a number of mandatory conditions, including participation in
drug testing and treatment, and if successfully completed, results in a dismissal of the
conviction. This dismissal is intended to keep one’s criminal history from disqualifying him or her for employment or housing.

Cost Analysis of Drug Laws
and their Alternatives
A macro-economic analysis of disproportionate justice involvement must be inherently broad in order to encompass all of the personal, social, legal, and clinical factors
that are necessary for understanding and solving the problem. In many discussions
about disparities in sentencing, a number of economic considerations (costs and benefits) have been raised in an attempt to explain decisions at various steps in the criminal justice process, from arrest to prosecution to sentencing. Such an analysis could
be a valuable tool in the DJIS. However, the Commission advisory groups determined
that the expansiveness and complexity of a valid and comprehensive economic analysis would be beyond the scope of the current project. Instead, this report presents
state and national cost-comparison data, most of which was gathered from secondary sources. The difficulties in obtaining, interpreting, and integrating phase-by-phase
justice system data (documented elsewhere in this report) precluded the possibility of
performing a cost analysis specific to this project; nonetheless, research conducted
elsewhere proved to be highly relevant to the present discussion.

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National Cost Analysis
An April 2009 report by the U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration of cost savings analyses in
California, New York, and Washington confirmed a long-stated statistic that every
dollar spent on treatment results in at least seven dollars saved, primarily through
reduced cost of crime and increased employer earnings (Center for Substance Abuse
Treatment, 2009).

Illinois Cost Analysis
A number of independent analyses of treatment vs. other justice alternatives exist for Illinois. The National Center on Addiction and Substance Abuse (CASA)
at Columbia University estimated that in 2005, Illinois spent $4.85 billion on the
impact of drug use, or roughly 15 percent of its budget. Specific to justice issues,
roughly $929 million was spent on adult corrections because of substance abuse,
representing over 80 percent of the total correctional budget. Similarly, over $143
million was spent on court and other associated costs, over 83 percent of the annual budget for those activities. CASA further estimated that of every dollar spent
on substance abuse in Illinois, only four cents is spent on treatment while almost 96
cents are spent on the consequences of untreated or inadequately treated substance
use disorders. Criminal justice activities shoulder 25 percent of the total burden to
the state from substance abuse (CASA, 2009).
More germane to this project, a 2007 analysis conducted by the Center for Health
and Justice at TASC estimated that roughly 10,000 individuals (25 percent) enter the
Illinois Department of Corrections each year with diagnosable substance abuse or
dependence. The annual cost of incarceration of these individuals totals $226 million per year, while the cost to provide probation, community-based treatment, and
clinical case management would only have been $59 million, representing a potential
savings of $167 million.

Summary
Mass incarceration in the United States has been driven largely by drug control policies that emphasize enforcement over substance abuse prevention and treatment
strategies, and that overuse prison as punishment for drug-law violations. These policies have especially and adversely affected African Americans throughout the United
States. In Illinois, the rate of imprisonment for drug offenses is substantially higher
for African Americans than for whites—a finding that has been replicated in several
studies. The collateral consequences of imprisonment for drug crimes are varied and
significant, harming individuals, families, and communities.

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C OMMISSION FINDINGS

SECTION 2

Independent Research Findings
The current section presents the major empirical findings from the DJIS. The project’s research team, composed of investigators from the Center for Health and Justice at TASC and Loyola University Chicago, with guidance from the Commission’s
Research Advisory Group housed at the Jane Addams College of Social Work at the
University of Illinois at Chicago, conducted exploratory analyses to investigate the
disproportionate racial/ethnic impact of drug laws in Illinois. Data were collected
to determine whether any racial disproportionality occurred at arrest, prosecution,
or sentencing for drug crimes. To identify the factors related to disproportionality,
two large data sets were analyzed: the first consisted of statewide criminal history
records from Illinois, and the second consisted of countywide court records from
Cook County (Chicago).

Statewide Data
Trends in Incarceration for Drug Offenses
Admissions to Illinois prisons for drug-law violations more than tripled between 1989
and 2009. Figure 1 displays data on prison admissions for violations of Illinois’ Controlled Substance Act since the late 1980s, excluding admissions for parole violations.
The largest single category of offenses for which people in Illinois were admitted
to prison each year consisted of Class 4 drug possession—codified in the Illinois
Controlled Substances Act (see Section One)—which accounted for 22 percent of
all prison admissions in 2003 (Illinois Department of Corrections, 2005). Nonwhites
have been consistently more likely than whites to be sentenced to prison for drug
offenses. Specifically, throughout the 1990s, African Americans represented an average of 80 percent of all persons admitted to Illinois prisons for drug offenses. In the
state’s largest county (Cook), among all those admitted to Illinois prisons for drug
offenses from 1990 to 2000, the proportion of African Americans and Latinos varied
from 82 to 91 percent (Lurigio, 2006).

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Figure 1
Admissions to Prison for
Violations of the Illinois
Controlled Substance Act,
1989-2009 (excluding
parole violations)

Drug Use and Disproportionality
The disproportionate incarceration of minorities for drug possession cannot be explained by differential drug use among people of different backgrounds. According to the Illinois Household Survey, when grouped into racial/ethnic categories
(i.e., white, African American, Latino), the percentages of the state’s past-year users of illicit drugs, other than marijuana, correspond roughly to the representation of those groups in the state’s general population (Cho, Johnson, & Pickup,
2000). Further, within racial/ethnic categories, the percentages of illicit drug use
in the past year are highly comparable for whites, African Americans, and Latinos
in Illinois: 2 percent, 1 percent, and 1 percent, respectively (illicit drugs without
marijuana) and 4 percent, 5 percent, and 2 percent, respectively (illicit drugs with
marijuana) (Johnson & Cho, 2004).

Types of Drug Arrests and Race
The first data set for the current study was obtained from the Illinois State Police
and contained information on all individuals arrested for felony drug crimes in
2005 (N = 42,297). Criminal histories were obtained for each arrestee, including
charges, dispositions, and sentences. Approximately 99 percent of the records were
coded “B” or “W” (i.e., black or white) at the time of arrest (less than 1 percent
had other codes). This designation is standard in Illinois criminal records, which
lacked detailed information regarding ethnicity or race. Therefore, in the present
analyses, arrestees were categorized as “white” or “nonwhite.” Presumably, both
the white and nonwhite categories each comprised unknowable percentages of
people of Latino or other ethnic origin.
The majority (77 percent) of drug arrestees in 2005 were arrested for possession
charges under the Controlled Substances or Cannabis Control Acts (Table 1). Class
4 possession of a controlled substance (up to 15 grams) accounted for 68 percent
of felony drug arrests in Illinois. Of those arrested for a Class 4 drug offense, 66

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29

percent were nonwhite. The second most common arrest (6 percent of all arrestees)
was for the manufacture/delivery of a controlled substance; 90 percent of these arrestees were nonwhite. Other charges with a high percentage of nonwhite arrestees
included cannabis sales on or near school property; 90 percent of these arrestees
were nonwhite. (Individuals charged under the methamphetamine laws were predominately white, but these laws were new in 2005 and few people were arrested
for such offenses.)

Table 1
Illinois Statewide
Drug Charge Arrestee
Characteristics, 2005
(N=42,297)

Race
Nonwhite
White
Other code

66%
32%
<1%

Gender
Male
Female

83%
17%

Age at arrest
19 and under
20-29
30-39
40-49
50 and older

1%
32%
25%
23%
18%

Type of Drug Arrest
Possession
Mfg/Delivery

77%
23%

Location of Arrest
Chicago
Suburban Cook
Non-Cook Urban
Non-Cook Rural

67%
10%
15%
8%

Nonwhites were arrested at a higher rate than whites relative to their representation
in the general population in counties throughout Illinois (United States Census Bureau, 2009). Arrest data indicated that disproportionality in drug arrests occurred
in 62 of the 102 counties in Illinois, including urban, suburban, and rural areas.
Racial disparities for drug arrests varied widely by county but tended to be greater
in jurisdictions with smaller populations of nonwhite residents (Table 2).

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County Population (2008)
Total
Pop. 2008

Rural
Iroquois
Stephenson
Adams
Livingston
Effingham
Whiteside
Suburban
McHenry
Will
Lake
DuPage
Urban
Tazewell
Madison
Winnebago
Sangamon
Cook
St. Clair

%
nonwhite

Arrestees on Drug Charges (2005)
Total
Arrests

%
nonwhite

Ratio of
proportions

30,017
46,821
66,892
37,965
34,329
59,059

5%
11%
6%
8%
2%
7%

61
69
167
41
94
63

36%
65%
31%
41%
13%
37%

7.2
5.7
5.6
5.4
5.3
5.0

312,946
664,361
702,558
925,530

9%
22%
22%
19%

402
438
613
656

22%
42%
38%
20%

2.5
1.9
1.8
1.1

130,789
266,886
295,803
194,049
5,257,001
261,268

3%
11%
18%
14%
46%
33%

127
602
769
581
32,489
292

12%
36%
52%
42%
76%
55%

3.5
3.2
2.8
3.0
1.7
1.7

Table 2
Racial/Ethnic
Disproportionality
of Drug Arrests
(2005) Compared to
Population (2008),
Selected Illinois
Counties

Race, First Arrests, and Criminal Histories
The statewide data included criminal justice histories from first arrest up until April
2009, when the data were collected. The police in Illinois routinely check suspects’
criminal histories at the time of arrest; therefore, the decision to arrest might be affected by the presence of a criminal history. For the purpose of testing the effects
of race while controlling for the effects of criminal history, a subsample of first-time
arrestees in 2005 was selected. This sample included only people whose most serious charge at their first arrest was for a Class 4 felony (n = 2,575). People with only
misdemeanor arrests were excluded from the sample. First-time arrestees constituted
6 percent of all felony arrestees in 2005. Statewide, 64 percent of all first-time felony
arrestees for Class 4 possession were white, compared with Class 4 drug arrestees
with previous arrests, of whom 66 percent were nonwhite.
The proportion of nonwhites (African American and Latino) arrested for the first
time for Class 4 possession (36 percent) is much closer to the proportion of nonwhites in Illinois’ general population (approximately 27 percent). In sharp contrast,
the proportion of nonwhites arrested for Class 4 possession, overall, was more than
double their representation in Illinois’ general population (66 percent versus 27 percent) (United States Census Bureau, 2010). Therefore, racial disproportionality for
arrests for low-level drug possession increases with the accumulation of a criminal
record, suggesting that racial disparities are attributable in part, to the lengthier criminal histories of nonwhite arrestees. Increased access to diversion programs or alternaFINAL REP O R T | D E CE M BE R 2010

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tives to incarceration, coupled with simple and timely processes for expungement and
sealing, can mitigate future involvement in the criminal justice system. Without such
access, criminal histories begin to accumulate.

Diversionary Programming
Early contact with the criminal justice system provides an opportunity for diversion
and rehabilitation programming. Instant offense, charge, and sentencing data among
first-time arrestees could be used to determine whether whites and nonwhites have
the same access to treatment and other interventions. The question of racial barriers
to diversion was difficult to answer in the current study because charge and sentencing
information in the Illinois State Police data set were missing. Approximately 23 percent of the 2,575 first-time arrestees either were not charged or their charges were not
logged into the record—a distinction that was impossible to ascertain from the data.
Of the remaining cases, a notable proportion had their charges dropped or dismissed
(42 percent), whereas 30 percent were sentenced to court supervision or probation,
and thus had the opportunity for rehabilitation services. Of the latter, nearly twothirds were sentenced to conditional probation (called “710” or “1410” probation
in Illinois), and one-third to standard probation. The former are given the option to
participate in drug treatment, and if successful, can have their charges dropped. Table
3 presents these outcomes by race. Among first-time arrestees for Class 4 possession,
whites (36 percent) were more likely than nonwhites (19 percent) to be sentenced to
court supervision or probation.

Table 3
Criminal Justice
Outcomes for Firsttime Class 4 Drug
Offenders, Statewide
Data, by Race, 2005

Race

Not
charged/
missing

Dismissed/
dropped

Supervision,
710 or 1410
probation

Guilty and
probation

Other

Nonwhite (n = 863)

31.7%

45.0%

12.7%

6.4%

3.5%

White (n = 1,655)

18.1%

40.9%

23.7%

11.8%

5.8%

Total (n = 2,575)

22.7%

42.4%

19.9%

10.0%

5.5%

In the statewide data set, of those who had a first-time drug offense, 61 percent were
arrested in Cook County. The data on sentencing outcomes suggested that people
with first-time offenses were less likely to receive probation or court supervision in
Cook County (16 percent) than those arrested outside of Cook County (50 percent);
nonwhite offenders in Cook County were also less likely to be sentenced to probation
or court supervision than nonwhite offenders elsewhere in the state.

Drug-free Zones
Statewide, only 3 percent of drug arrests in 2005 involved violations of the drugfree zone provisions of the Controlled Substances Act and the Cannabis Control
Act. Nearly 70 percent of these arrests took place in Cook County, and 89 percent
involved nonwhite arrestees.

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Cook County Court Data
Data and Analyses
To examine more closely the specific variables that are related to disproportionality,
data were obtained from a randomly selected sample of 5,000 drug and nondrug
criminal cases adjudicated in the Cook County Courts in 2005. Cook County was
selected because the majority of statewide arrests for drug crimes and the majority of
people with drug offenses admitted to state prisons come from the county. Of the
original 5,000 cases, 4,322 had race/ethnicity and adjudication data and were therefore used for the analyses.
For each defendant, the following data were collected: demographic characteristics,
such as age, gender, race/ethnicity (African American, Latino, white); and criminal record variables, such as number of previous convictions, felony charge class and type,
disposition, and sentence. For defendants whose cases proceeded to felony court, the
data set also contained information about whether the defendant was held in custody
or released on bond, and whether a public defender or private attorney was appointed
to the case.
Multivariate analyses explored the effects of race on key decision points (i.e., prosecution, conviction, and sentencing) in the criminal justice process after controlling for
other factors. The variables that affect whether a defendant is held in custody could
not be tested with these data. The inclusion of charge class and type allowed conclusions to be drawn about all defendants in the sample.
A selection bias occurs between the stages of criminal justice processing. Simply put,
defendants who move from arrest to prosecution to sentencing are different cohorts
of people because of the winnowing effects of criminal justice processing. Those
who move to the preliminary hearing stage are more likely to be indicted than they
were at the arrest stage, and those who are indicted are more likely to be convicted
than they were at the preliminary hearing stage. This bias was accounted for in the
multivariate analyses by including, in the statistical models, the predicted value, for
each variable in each stage, based on the values of each of those variables in the preceding stage (Roncek, 1991).

Felony Review
The possible outcomes of the preliminary hearing stage of the adjudication process
were examined; these include dismissal of charges by the judge, or the decision by the
state’s attorney to drop charges (i.e., nolle prosequi) or transfer the case to criminal court
for prosecution. In the Cook County sample, 40 percent of the defendants charged
with Class 4 drug possession were transferred to criminal court, whereas 60 percent
had all charges either dropped by the state’s attorney or dismissed by the judge and
thus lacked access to diversionary programming and remained at greater risk for in-

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creased sentences upon future justice system involvement. Despite the fact that most
cases were eventually dropped or dismissed, defendants spent an average of three
weeks after their arrest awaiting a preliminary hearing. An unknown but large number
of them were detained in jail before being processed and released. Although most
Class 4 drug possession cases were dismissed or charges were dropped in all racial/
ethnic groups, African-American defendants (39 percent) were more likely than white
(31 percent) and Latino (23 percent) defendants to be transferred to criminal court.
These disparities are examined in detail below.

Race and Criminal Justice Outcomes
Table 4 presents the characteristics of the Cook County sample. Almost 80 percent
of those entering the Cook County Court System were African-American, followed
by 13 percent Latino, and 8 percent white. The vast majority (84 percent) were men,
and nearly half (45 percent) were 30 years old or younger. As evidence that the Cook
County Court System is inundated with low-level drug cases, 72 percent of the sample
had a drug charge (sometimes among others), and 70 percent of them were charged
with Class 4 possession. More than 60 percent of drug defendants in the Cook County sample were charged with Class 4 possession only and had no other charge(s).

Table 4
Characteristics of
Sample of Cook
County Drug and Nondrug Felony Cases,
2005 (n = 4,322)

Race
African American
Hispanic
White

#
3,388
579
355

%
78%
13%
8%

Gender
Male
Female

3,630
692

84%
16%

Age
30 and Under
31-39
40 and older

1,942
1,018
1,358

45%
24%
31%

Highest Felony Charge
Class 4
Class 3
Class 2
Class 1
Class X
UUW/Felon*
Unspecified Class

2,551
263
551
303
196
70
388

59%
6%
13%
7%
4%
2%
9%

3,106
1,216

72%
28%

Drug Charge
Yes
No
*Unlawful use of a weapon by a felon

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The model for the decision to prosecute in felony court or to drop/dismiss charges is
presented in Table 5. This analysis showed that, after controlling for other variables,
including criminal history, African Americans were approximately 1.8 times more
likely than whites, and Latinos were approximately 1.4 times more likely than whites,
to be prosecuted for any crime.

Age
Sex
Race

Prior Convictions

<= 29
30-39
40+
Male
Female
White
Black/AA
Hispanic
None
1-3
4-6
7+
R2 of model = 0.313

p value
-0.00
0.00
-0.55
-0.00
0.04
-0.00
0.00
0.00

O.R.
1.000
0.594
0.372
1.000
0.938
1.000
1.841
1.436
1.000
1.402
1.796
1.542

Table 5
Conditional Logistic
Regression Model
for Decision to
Prosecute in Felony
Court, Cook County
2005 (N = 4,021)*

*Model also includes felony charge class (Class 4-1 and Class X/murder) and charge type (property, drug,
violent, other offense).

The high volume of drug cases in the county contributes to most cases being dismissed or dropped—an outcome that could be perceived as preferable to a conviction. However, in Cook County, these defendants spend an average of 21 days
awaiting the disposition of their cases; during this time, typically, they are in custody.
Moreover, many are likely to return to the criminal justice system after their initial
cases are dropped. Specifically, of those arrested for a first-time offense in Cook
County in 2005, more than half were rearrested within four years. Further, as reported below, previous arrests can increase the likelihood of future arrests, especially
among nonwhites.
Models for conviction and sentencing produced similar results as the model for the
decision to prosecute. For example, the model for sentencing demonstrated that, after
controlling for charge type, charge class, and number of previous convictions, the defendants who were most likely to be sentenced to prison were African-American, held
in custody, and represented by a public defender. More specifically, African Americans
were 1.7 times more likely than whites to be sentenced to prison; defendants jailed
throughout the adjudication process were 2.4 times more likely than those on bond
to be sentenced to prison; and defendants without a private attorney were 1.4 times
more likely than those with a private attorney to be sentenced to prison.

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Cumulative Effects of Criminal Justice Processing
The cumulative effect of disparities is illustrated in Figure 2, which shows the proportion of cases initially charged with Class 4 possession that penetrate further into
the criminal justice system and highlight the cumulative effect of disparities at each
stage. Because of the incompleteness of the data, these results are merely suggestive
(e.g., it was impossible to measure custody status and attorney representation before
the prosecution stage). Among defendants with a Class 4 possession charge, African
Americans were sentenced to prison at a rate almost five times greater than whites: 19
percent of African-American defendants compared with 4 percent of white defendants. When the sample is restricted to defendants with fewer than two previous convictions (i.e., roughly equal criminal histories), African Americans entering the court
system were sentenced to prison at a rate three times that of whites for a conviction
for a Class 4 possession offense (10 percent versus 3 percent). These data included
defendants who also were charged with other offenses in addition to a Class 4 drug
possession. Among African-American defendants with only a Class 4 drug possession charge, 16 percent were sentenced to prison compared with 2 percent of white
defendants with only a Class 4 drug possession charge.

Figure 2
Criminal Justice System
Process Penetration
Among Class 4 Drug
Possession Defendants,
Cook County Sample
2005, by Race

Any analysis of racial or ethnic disparities in criminal justice processing must recognize the paramountcy of such disparities at arrest, which is the first step in the concatenation of events that involve a disproportionate number of nonwhites. Specifically,
at arrest, the proportions of African Americans were three times greater than their
representation in the general population for all charges, all drug charges, and Class
4 drug possession charges. At each stage, for each charge, African Americans constituted 80 percent or more of those processed through the Cook County Criminal
Justice System; nonwhites constituted 90 percent or more of those processed for only
Class 4 drug possession charges.
The disproportionate odds of nonwhites moving from the arrest stage to later stages
in the process (specifically, prosecuting and sentencing to prison) are only partially
explained by the racial imbalances at arrest and remain after statistically accounting
for the selection bias at each stage. These unequal outcomes in the court system

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compound the disparities at arrest in a vicious cycle inasmuch as the probability of
arrest increases with the presence of a criminal record, as noted above. Racial/ethnic
minority populations are not accessing the full range of diversionary programming
options that currently exist. To account fully for the nature of these disparities, further research is needed with better data on custody status, bond, and attorney type.

Drug-free Zones
In Cook County, only 15 percent of the drug defendants had one or more drug-free
zone charges. Of these, 70 percent of the drug-free zone charges were eventually
dropped or dismissed. Nonetheless, defendants who had originally faced a drug-free
zone charge received a more severe final sentence than those who did not. Approximately 58 percent of the Cook County defendants originally charged with a drug-free
zone violation that was later dropped received a prison sentence, compared with 41
percent of other drug defendants, suggesting that drug-free zone charges were being
used in plea bargaining arrangements and that judges’ sentencing decisions were often
based on the original charge rather than the lesser, plea-bargained charge.

Summary
In Illinois, drug arrestees in 2005 were disproportionately nonwhite for the most
common drug charges, not just in urban counties but in a majority of the state’s
counties. Hence, racial or ethnic disparities were evident across the state, in rural and
urban areas alike. Therefore, policing practices in larger cities accounted only partially
for the racial disparity. In addition, population surveys consistently demonstrate that
disparities in arrests for possession cannot be explained at all by differential patterns
of drug use among people of different racial backgrounds.
Only two types of drug crimes, Class 4 drug possession and Class 2 drug manufacturing/delivery under the Controlled Substances Act, accounted for most of the arrests
and most of the racial disproportionality in arrests, which accounted for most of
the disparities in later stages of the criminal justice process. Approximately nine of
every ten people arrested in Illinois for the manufacture and delivery of a controlled
substance or for cannabis sales on or near school property were African-American.
Nonetheless, most of the disproportionality in Illinois drug laws, in terms of the
sheer number of people affected, was related to drug possession charges, which accounted for nearly three-fourths of felony drug arrests across the state in 2005. Any
attempt to address the disproportionate incarceration of minorities must first focus
on the enforcement of Class 4 possession laws.
Class 4 possession arrestees constituted the majority of those arrested in Cook County; a substantial number of these individuals were admitted to prison. However, relatively few were sentenced to prison for Class 4 possession only (i.e., without other
charges). Nevertheless, the Cook County data showed that in 2005, African Ameri-

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cans who were arrested only for that charge were eight times more likely than whites
to be sentenced to prison and many of them spent considerable time in jail, which
often reduced the length of their actual prison terms. For all criminal charges, African
Americans in Cook County were nearly two times more likely to go to prison than
whites.
The majority of those arrested for the first time on felony drug charges in 2005 were
white; however, for subsequent arrests, the opposite was true—that is, most subsequent arrestees were nonwhite. Whites and nonwhites without criminal records were
arrested at rates that more closely correspond to their representation in the general
population; minorities with criminal records were more likely than whites to have
subsequent arrests. Thus, criminal history plays an important role in creating disparities. The existence of diversion alternatives without ramped-up penalties and felony
review at early stages of system involvement may address these concerns.
The availability of treatment services through the criminal justice system appeared
to differ for white and nonwhite first-time arrestees. A limited analysis suggested
that whites are more likely than nonwhites to participate in court diversion or probation programs. Racial differences in access to community-based programs might vary
substantially by jurisdiction. Therefore, more research is needed to explore whether
race/ethnicity affects access to diversionary options and, if so, the nature and extent
of the effect. To address the disparity, the criminal justice system ought to take steps
to intentionally and assertively direct minority populations into sentencing alternative
programming for which they are eligible before resorting to prison sentences.

Limitations of the Data
The findings above were drawn from two large data sets that were limited in terms of
the depth and breadth of information available on the processing and outcomes of
the cases. For example, in some instances, no disposition data were available (e.g., sentences to probation). Most important, the data sets did not contain reliable information about the race/ethnicity of people of Latino origin. Without this information,
conclusions cannot be drawn about the effects of drug laws on Latinos and recommendations cannot be made about the appropriate policy and programmatic changes
needed to reduce sentencing disparities within these groups. Notwithstanding these
limitations, the study offers useful information to encourage evidence-based policy
making in Illinois’ criminal justice system.

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C OMMISSION FINDINGS

SECTION 3

Public Hearings
As part of its information-gathering and -sharing efforts, the Illinois DJIS Commission held a series of public hearings throughout the state. At these hearings, Commission members had the opportunity to hear the opinions and recommendations of
citizens from across the state, including elected officials, researchers, service providers, national policy experts, and formerly incarcerated persons. Summaries of these
hearing are presented below. Witness lists, transcripts, and copies of individual testimonies are provided in the appendices.

February 22, 2010 – Chicago, IL
The first public hearing was held in Chicago and gathered the testimony of ten individuals. A significant portion of the hearing was devoted to the testimony of five
speakers from the research community, all of whom had special expertise in criminal
justice research in general and were familiar with investigations into disproportionate
minority contact with the criminal justice system in particular. The content of their
remarks included the following: the preliminary findings of the research on the racial/
ethnic impact of drug laws in Illinois, conducted under the auspices of the Illinois
DJIS Commission; drug laws and enforcement practices, which are potentially problematic in terms of their affect on disproportionate minority confinement; lessons
learned from disparity-reduction efforts in Wisconsin; the cumulative and insidious
effects of justice involvement on minorities; and the shortcomings in current data
collection mechanisms, such as failure to note Latino heritage in arrest records and to
codify decisions at the plea bargaining stage.
The Commission also heard from a local business owner committed to hiring formerly incarcerated people. He recommended the creation of a special class of community-oriented business. This class would be recognized in state and local contracts, in a
manner that is similar to current minority- and women-owned business provisions.
The hearing concluded with the testimony of three citizens who are participating in
programs for formerly incarcerated people—two were people with previous criminal

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justice system involvement, and one was a family member of an individual with previous criminal justice involvement. These citizens highlighted the ability of formerly
incarcerated people to return successfully to their communities and spoke of their
capacity to educate at-risk populations about the problems associated with justice
involvement.

March 8, 2010 – Joliet, IL
The second public hearing was held in Joliet, Illinois, a large and economically depressed suburban municipality roughly 50 miles west of Chicago. Commission members heard testimony from four individuals there. The first speaker was a national
policy expert with many decades of experience in drug policy formulation and implementation under several White House administrations. He testified about trends in
national drug policy as well as current “hot button” issues, such as medical marijuana
and the crack cocaine/powder cocaine sentencing disparity. He also spoke about
how disproportionality is being addressed at the national and state levels. The second
speaker was a local attorney, professor, and person formerly involved in the criminal
justice system who spoke about the challenges facing those coming out of the system
and the role of restorative justice models in repairing the social fabric damaged by
system involvement.
The third speaker was a community treatment provider with more than three decades
of experience in providing substance abuse treatment to criminal justice populations.
He testified about the role of substance abuse, among many other social and economic factors, in contributing to criminal behavior as well as the need to address
holistically the problem of addiction and criminal involvement.
The fourth speaker represented a statewide case management enterprise and the Illinois Juvenile Justice Commission. She spoke about steps being taking by the juvenile justice community to mitigate the problems of disproportionality, including
the following: changing policies and practices related to the enforcement of drug
laws; providing expanded and comprehensive social services; engaging and educating
communities about delinquency, crime, and juvenile justice system involvement; and
enhancing funding for services geared toward at-risk juveniles.

April 12, 2010 – East St. Louis, IL
The third and final public hearing of was held in East St. Louis, an urban community
in the St. Louis metropolitan area, on the Illinois side of the Mississippi River. The
commission heard testimony from eight individuals there. The first speaker was a
local judge with decades of experience dealing with defendants with repeat offenses
and the social and economic issues facing local communities. He spoke about the
breadth of social, economic, medical and other factors contributing to recidivism and
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ate minority contact with the criminal justice system. He also spoke about forfeiture
statutes and the need to invest a portion of the seized funds into efforts to develop
community programs.
Five of the speakers represented a statewide case management agency from different
regional and client perspectives. They spoke about their personal experiences as case
managers—and in some cases, as people with histories of criminal involvement—and
they underscored the effectiveness of community treatment programs in restoring
lives. In addition, they spoke about disproportionality in different parts of the state,
including its impact on Latino communities. Finally, they described how, in minority
communities, a culture of criminality is often pervasive, deeply ingrained, intergenerational, and difficult to overcome.
Another speaker represented local probation services and spoke about the gap between the need for social and behavioral healthcare services and the availability of
such services, especially in light of the state’s budget crisis. The final speaker, representing the Illinois African-American Family Commission, spoke about the role of
family as a support mechanism and of higher education programs as a vehicle for
teaching about addiction and criminal justice involvement.

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SECTION 4

Commission
Recommendations
In response to the qualitative and quantitative analysis of the current state of disproportionate minority contact with the criminal justice system in Illinois, and in consideration of the expertise from practitioners and policymakers, the Illinois Disproportionate Justice Impact Study Commission offers the following recommendations for
mitigating the harmful effects of disproportionate minority contact with the justice
system on individuals, families, and communities across Illinois, and the resulting burden on state and local public systems charged with responding to those effects.
These recommendations are not intended to be fully proscriptive. Rather, they present opportunities for meaningfully addressing disproportionate minority contact in
four broad categories of activity: 1) state level policy; 2) statutory and practice changes; 3) mitigating long-term harm; and 4) funding. Mechanisms for accomplishing the
recommendations are presented for consideration, with the details of implementation
left to the General Assembly, the relevant state and local agencies and practitioners,
and the communities they serve.
Stat e - L e v e l P o l i c y
The Illinois DJIS Commission recommends the following:

Recommendation 1:
As a matter of process, legislators should be able to request the attachment of a
Racial & Ethnic Impact Statement to bills or appropriation measures that impact
criminal offenses, penalties, sentencing, probation, or parole policies. The Racial &
Ethnic Impact Statement should be drafted by the existing Sentencing Policy Advisory Council, which would also initiate the analysis necessary to understand the
impact of the legislation, either through its own effort, or in collaboration with the
Illinois Criminal Justice Information Authority, the Racial & Ethnic Impact Research
Task Force (described below), or other research entities. Several states have considered proposals to require racial impact statements, and Iowa and Connecticut passed
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laws in 2008 requiring such statements in certain instances. Minnesota’s Sentencing
Guidelines Commission has been drafting racial impact statements for the state legislature for several years.

Recommendation 2:
The State of Illinois should establish a Racial & Ethnic Impact Research Task Force to
ensure the standardized collection and analysis of data on the racial and ethnic identity
of arrestees. The charge of the Task Force would be to develop a framework for data
collection at decision points along the criminal justice system continuum with a goal of
standardized information management in the Illinois justice system and all of the state
and local components of that system. This information would be used to meaningfully
analyze and understand disproportionality that may occur across the justice process,
as well as any other benefits such a standardized system would afford. The Task Force
would operate under the guidance of, and potentially the auspices of, the Sentencing
Policy Advisory Council or the Illinois Criminal Justice Information Authority.

Justification
Through its independent research efforts, the Commission consistently found gaps in
relevant data that would allow for a comprehensive statistical analysis of the impact
of drug laws on disproportionality. In some cases the data was simply not collected.
In others, lack of standardized coding resulted in assumptions being made or sets of
data disqualified from analysis. In others, data collected at different stages of justice
involvement was not collected in a uniform manner, meaning data sets from different
justice entities did not adequately integrate to afford a holistic view of the entire process. As an example of data gaps, 99 percent of Illinois State Police arrestees currently
are classified as either Black or white, with unknown percentages of people of Latino
or other ethnic origins. Uniform collection of data would:
•	

Assist stakeholders in understanding who the criminal justice system is
serving;

•	

Identify what decisions are made at particular points along the criminal
justice continuum and, in turn, ensure more fairness and objectivity;

•	

Determine what services are needed to address the issue of
disproportionality;

•	

Inform allocation of resources; and,

•	

Assist in examining and monitoring system response.

More complete data could be analyzed and used to promote policies and practices that
minimize disproportionality. As an example, the Models for Change initiative, currently
active in Illinois and other states, is developing resources for improved data collection
in its efforts to reduce racial and ethnic disparities in the juvenile justice system (see
Appendix D).

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Stat u t o r y a n d P ract i c e C h a n g e s
The Illinois DJIS Commission recommends the following:

Recommendation 3:
The State of Illinois should establish a Task Force to review Section 407 of the Illinois Controlled Substances Act (720 ILCS 570/407), commonly referred to as the
“drug-free zone laws.” The purpose of this Task Force would be to commission and
analyze research evaluating: 1) the effectiveness of the laws at achieving their protective intent (e.g. shielding children from drug sales); and 2) the potential unintended
consequences of the laws beyond their protective intent. Based on this research, the
Task Force would recommend amendments to the provisions 720 ILCS 570/407
to preserve their protective intent while mitigating their disproportionate impact on
minority communities.  

Recommendation 4:
The State of Illinois and local governments should support jurisdictions in maximizing their use of diversionary programs and sentencing alternatives, including day
reporting centers, drug schools, drug courts and other specialty courts, first offender
probation, and designated program supervision. This recommendation encourages a
multi-faceted approach, including:
1)	 Establishing local justice system planning commissions, included within or
dovetailing with Adult Redeploy Illinois (730 ILCS 190/20).
2)	 Providing training opportunities for prosecuting attorneys, as well as public
and private defense attorneys, on the scope of available alternatives. Such
training opportunities could be accredited for continuing legal education
credit by the Minimum Continuing Legal Education Board of the Supreme
Court.
3)	 Clarifying the array of available alternatives by combining them into a single
statute, consistent with the alignment and clarification goals of the CLEAR
Commission.
4)	 Assuring appropriation of funding suitable for full utilization of the abovementioned alternatives (see Recommendations 9 and 10).

Recommendation 5:
Each local state’s attorney’s office, not local law enforcement, should conduct felony
review for filing of charges in new cases. Recognizing the practical and logistical realities of this requirement, the General Assembly should establish a benchmark for
population of a county above which this requirement is mandated. Additionally, each
county should establish its own benchmark for disproportionality of its justice population compared to its general population that would trigger a mandate of felony review by the state’s attorney’s office.

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Justification
The recommendations presented above respond to three specific findings of the
Commission’s research.
First were the cumulative findings of the disproportionate impact of the so-called
“drug-free zone” penalty enhancements. While the overall number of arrests and individuals sent to prison in Illinois because of these laws is relatively low, their potential
for disproportionate impact is high. Four findings contribute to this conclusion: 1) the
concentration of these zones in urban areas and particularly communities of color
suggests that delivery crimes committed in urban areas are significantly more likely to
be violations of these laws and subject to enhanced penalties; 2) nearly 90 percent of
arrestees for drug-free zone violations involved non-white arrestees; 3) Cook County
defendants originally charged with a drug-free zone violation that was later dropped
were sentenced to prison at a higher rate than other drug defendants, and 4) the
movement by many states to acknowledge the disproportionate impact of drug-free
zone laws on their minority communities, and to adopt a more deliberate approach to
how the statutes are drafted, enforced, and prosecuted.
Second was the finding that whites are nearly twice as likely to be sentenced to specialized drug probation and supervision as non-whites, coupled with the finding that defendants jailed throughout the adjudication process as well as those without a private
attorney (both suggesting lower-income defendants) were more likely to be sentenced
to prison. These findings suggest that sentencing alternatives are not fully utilized for
low-income populations, and a combination of planning, education, clarification, and
funding could increase utilization. These activities coincide with work already being
done by the Adult Redeploy Illinois program and the CLEAR Commission.
Third was the finding that 60 percent of Class 4 felony possession charges were
dropped or dismissed prior to trial. This gap in processing of the facts of each case
was magnified by an average of three weeks following arrest that defendants awaited
preliminary hearing, many of whom were detained in jail. The short-term and longterm disruptive effects of the arrest and potential detention on the lives of defendants
cannot be overstated. The recommendation is intended to emphasize the importance
of state’s attorney involvement in felony review.
M i t i g at i o n o f L o n g - T e r m Har m
The Illinois DJIS Commission recommends the following:

Recommendation 6:
The State of Illinois should prohibit the inclusion of drug-related arrests that do not
result in conviction in criminal histories collected for employment-related purposes.
County clerk offices and third-party background search firms should be held liable
for unauthorized release of such information through civil penalties.
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Recommendation 7:
The State of Illinois should establish automatic expungement and sealing procedures
for Class 4 felony possession charges or convictions that result in one or more of the
following:
•	

Successful participation in a drug court or other specialty court

•	

Successful completion of first offender probation

•	

Successful completion of probation under the supervision of the
designated program

Recommendation 8:
The State of Illinois should develop and promote a classification of business known
as a “community enterprise,” making such businesses eligible to receive state, county,
and local monies and tax incentives as a result of training and/or hiring individuals who were formerly criminally involved and/or incarcerated. Similar to current
minority-owned and woman-owned business enterprise standards, the community
enterprise status would establish standards for application and certification, which
would allow designated organizations to compete for contracts with state, county, and
local governments.

Justification
Recommendations 6-8 reflect an attempt to reduce the barriers often encountered by
people with criminal records as they attempt to re-engage in their communities in a productive manner, primarily through securing and maintaining gainful employment. It has
been well documented that having a way to support oneself honestly is critical in avoiding re-involvement in criminal behaviors and the criminal justice system. Public policies
like those permitting employers to ask for criminal history information or restricting
individuals from certain types of work, along with the stigma associated with former incarceration, work against the efforts of the formerly incarcerated who seek to leave their
earlier behaviors and lifestyles behind after their debt to society has been paid. Mass
imprisonment among minority populations has created vast inequality by restricting the
economic prospects and disrupting the employment trajectories of former prisoners,
hampering the fair distribution of wealth and opportunities for social mobility.
Recommendations 6-8 address these barriers in three specific ways. Recommendation
6 ensures that individuals who were arrested but had their charges dropped could
not have that fact used against them by potential employers. State legislation proposing a similar measure (HB 765) was introduced in 2009 but failed to gain traction in
the General Assembly. Recommendation 7 more broadly addresses the lengthy and
confusing process of having criminal records expunged or sealed by defining certain
circumstances under which that process happens automatically. Recommendation 8
encourages local businesses to train and hire the formerly incarcerated through incentives and contracting advantages.
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Funding
The Illinois DJIS Commission recommends the following:

Recommendation 9:
In support of Recommendation 4, jurisdictions should define a fixed portion, or
criteria that would trigger the allocation of a portion, of existing drug asset forfeiture
funds to support treatment and diversion programs in addition to enforcement and
prosecution activities.

Recommendation 10:
In support of Recommendation 4, the State of Illinois should establish budget policy
and priorities to promote full utilization of existing diversion programs or alternatives
to incarceration, as well as the accompanying planning processes and training as supported by Adult Redeploy Illinois.

Justification
Recommendations 9 and 10 were prompted by 1) Illinois’ current fiscal situation,
2) the under-participation in diversion and alternatives to incarceration by minority populations, and 3) recent and historical cost studies, both in Illinois and around
the United States, that consistently demonstrate the overwhelming burden to state
budgets and public agencies of untreated substance use, of which justice-related activities represent 25 percent in Illinois. Recommendation 10 reflects a philosophical
shift toward prioritizing limited state resources to addressing the causes of criminal
behavior and the attendant disproportionate impacts on minority communities, and
away from paying for the results of not addressing that behavior. This shift has been
adopted by 14 states currently pursuing a strategy known as Justice Reinvestment,
wherein external consultants work closely with state policymakers to advance fiscally
sound, data-driven criminal justice policies to break the cycle of recidivism, avert
prison expenditures, and make communities safer. Recommendation 9 is a practical
example of a current, definable set of funds that could be allocated according to this
philosophy.

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48

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Appendices
Complete appendices to this report are available for download at
www.centerforhealthandjustice.org.

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Foster, H., & Hagan, J. (2007). Incarceration and intergenerational social exclusion.
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