INTRODUCTION

While most criminal justice scholars remain fixated on the U.S. Supreme Court and federal law, the vast majority of criminal prosecutions occur at the state and local level.¹ State v. Citizen prosecutions, which encompass most crimes ranging from robbery to homicide, are governed both by the federal Constitution and by the constitution of the prosecuting state. This includes constitutional limits on sentencing. When it comes to sentences, state courts are bound by the Eighth Amendment to the United States Constitution, which famously prohibits “cruel and unusual punishment.”² But state constitutions may go further than the federal Constitution.³ States may adopt constitutional provisions analogous to the Eighth Amendment that establish even more effective guards against unreasonable or vindictive punishments.⁴ They may do more to protect people from the anger of the mob, and may even do more to turn the purpose of incarceration and criminal sentencing itself from punishment to rehabilitation.⁵

Illinois provides a clear example. At Illinois’s most recent constitutional convention in 1970, a group of statewide delegates reconsidered the state constitution’s limits on criminal punishments.⁶ For decades, the courts had interpreted the Illinois Constitution to offer the same protections as the Eighth Amendment, but nothing more. This group decided to change that and did so in explicit terms.

From that convention, and from its people, emerged a revolutionary idea: Illinois should adopt in its constitution the strongest known language in the nation limiting a government’s ability to mete out extreme punishments—and clearly identify rehabilitation as the purpose of those criminal sentences. To that end, Illinois adopted the “proportionate-penalties clause.” That clause, codified in 1970 as Article 1, Section 11 of the Illinois Constitution, proclaims that:

All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. No conviction shall work corruption of blood or forfeiture of estate. No person shall be transported out of the State for an offense committed within the State.⁷

To this day, Illinois’s proportionate-penalties clause contains among the most rehabilitation-focused language to be found in any state constitution— language entirely absent from the federal constitution. Indeed, as Delegate Leonard Foster explained on the convention floor, “I feel that with all we’ve learned about penology that somewhere along the line we ought to indicate that in addition to looking to the act that the person committed, we also should look at the person who committed the act and determine to what extent he can be restored to useful citizenship.”⁸

State constitutions may go further in protecting their citizens than the federal Constitution does.⁹ In Illinois, after a period of debate, delegates— and ultimately, voters—adopted a constitutional provision against punishment for its own sake, and towards the rehabilitative ideal of punishment.¹⁰ They did so amidst a historical context aimed at securing civil rights. This Article argues that the Illinois state constitution’s proportionatepenalties clause—as seen through its text, its intent, and its history—requires courts that interpret laws and legislatures that pass them to consider rehabilitation in determining punishments.¹¹

This Article traces the proportionate-penalties clause’s origins back to the 1970 constitutional convention, using floor debate transcripts and other contemporaneous sources to establish that its authors intended (1) to guarantee that Illinois sentences serve rehabilitative purposes, and (2) to create an obligation on both the courts and the legislature to enforce that guarantee.¹² To interrogate the context of those documents, Part I examines the surrounding historical events of late 1960s-era Chicago. The 1970 constitutional convention included a diverse group of delegates, and it was one such delegate, Leonard Foster, who proposed the proportionate-penalties clause’s language on the convention floor.¹³ After describing the surrounding historical events, this Part then examines Leonard Foster’s life, background, and professional identity to provide necessary and additional context for the clause he propelled forward. Supported by renowned civil rights lawyer Elmer Gertz (famed for freeing Nathan Leopold from prison), Al Raby (a prominent Black activist who, among other things, had served as the Chicago “point person” for Reverend Dr. Martin Luther King, Jr.’s organization), and a host of other delegates, this diverse group found common cause around directing criminal punishments towards rehabilitative, and not merely punitive, purposes.¹⁴ As Gertz wrote about the task at hand: the “state bill of rights might perform important functions. We might go beyond what was required by the Fourteenth Amendment. We could not give our citizens less, but we could give them more. Would we?”¹⁵ This group of delegates did so.

And they did so while advancing other proposals expressly aimed towards eliminating racial discrimination. Part II describes their work on the Civil Rights Committee by excavating contemporary sources including debate transcripts, newspaper articles, and other accounts. Part II discusses the proceedings within the committee, first. It, then, provides a historical account of convention floor debates, detailing the conversation, the questions, and the intent behind the textual change. Thus, Part II establishes the origins of Illinois’s proportionate-penalties clause.

This Article then proceeds in Part III to examine Illinois case law and legislation to assess whether courts have applied the proportionate-penalties clause in a manner consistent with its authors’ original vision. After an examination of the case law, the Article concludes the courts have failed to consistently apply the text and intent of the proportionate-penalties clause. This Article then calls for a new interpretation of the proportionate-penalties clause that can serve as a model for rethinking the guardrails around criminal punishments nationwide. Indeed, a constitutional scheme that insists on rehabilitative ends for criminal sanctions can and must carry implications for many of the statutes and rules that drive our mass incarceration crisis, including mandatory minimum sentences, lifetime sex offender registries, and other tools that only punish rather than reform. It is with this hope that we offer this Article as an exegesis of the types of voices and ideas that can promote a broader and more progressive vision of criminal punishments— not only in Illinois, but around the country.

I. THE 1970 ILLINOIS CONSTITUTIONAL CONVENTION: TASK, DELEGATES, CONTEXT

The need for a new constitution was acute.¹⁶ On December 8, 1969, a group of delegates gathered in a room in Springfield, Illinois to create a new constitution for their state.¹⁷ The existing Illinois constitution, drafted in 1870, had been amended hundreds of times and had become largely unworkable, causing at least one scholar to declare that Illinois was “in the worst position of any state in the nation” in terms of its constitutional provisions.¹⁸ A constitutional convention met from 1920 to 1922, and a new draft had been submitted to the electorate, but voters “overwhelmingly rejected” it.¹⁹ A few decades later, calls intensified again for a new, modern constitution that reflected the changing sentiments held by the state’s changing citizenry.²⁰ Finally, in 1968, the electorate approved another constitutional convention; two delegates were elected from each of the 58 state senatorial districts the following year, and the delegates met recurringly from late 1969 through September 3, 1970.²¹

The contemporary era was indeed complex. For present purposes, we will distill legions of 1960s-era history, through which those delegates had just lived, into a short summary, with a particular focus on the civil rights movement and the origins of our nationwide carceral state.

Across the nation, the 1960s saw escalating tensions between law enforcement and Black people who were commonly subjected to terrible urban living conditions, including regular police brutality. High-profile incidents included a 1964 New York City clash in which a white police officer killed a young Black teenager while onlookers did nothing. Protests ensued, anger reigned, and many were arrested and injured.²² New York was not alone; the infamous Watts Riots gripped Los Angeles the next year, followed by similar unrest in Cleveland in 1966. In 1967, in “more than 160 American cities and towns, the most ruinous riots lead[] to 43 deaths in Detroit and 26 in Newark.”²³ Police often triggered these conflagrations; in Newark, for instance, unrest began the day after officers assaulted a Black taxicab driver.²⁴ And Illinois’s largest city, Chicago, was no exception. In May 1967, thirty Chicagoans were arrested and several injured, including three police officers, after riots began following a memorial celebration honoring the recently-assassinated Malcolm X on what would have been his birthday.²⁵

Amidst this unrest, President Lyndon Johnson convened the National Advisory Commission on Civil Disorders, a group chaired by Illinois Governor Otto Kerner, Jr.²⁶ On February 29, 1968, the Kerner Commission, as it had become known, released a report that plainly identified racism as a central driver of unrest in poor Black urban neighborhoods: “[W]hite society is deeply implicated in the ghetto,” the predominantly white Commission wrote.²⁷ “White institutions created it, white institutions maintain it, and white society condones it.”²⁸ It went on to squarely address police brutality:

The police are not merely a “spark” factor. To some [Black people,] police have come to symbolize white power, white racism, and white repression. And the fact is that many police do reflect and express these white attitudes. The atmosphere of hostility and cynicism is reinforced by a widespread belief among [Black people] in the existence of police brutality and the double standard of justice and protection—one for [Black people] and one for white [people].²⁹

As for the broader criminal legal system, the Commission came out strongly against “assembly line justice in teeming lower courts; against wide disparities in sentences; against antiquated correctional facilities; [and] against the basic inequities imposed by the system on the poor—to whom, for example, the option of bail means only jail.”³⁰ It emphasized that criminal legal reform was necessary to racial equality, including revision of sentencing laws and policies.³¹

The Commission’s report, unfortunately, did not stem the tide. Only weeks after the Commission released its report, Rev. Dr. Martin Luther King, Jr. was assassinated, sparking mass protests and riots in more than 100 cities.³² In Chicago alone, more than 48 hours of unrest centered in the city’s East Garfield Park neighborhood left at least 9 people dead, 200 more injured, and more than 2,000 people arrested.33 Approximately 10,000 police were sent to quell the protesters, along with more than 6,700 Illinois National Guard troops.³⁴ And thousands of those troops returned to the city just months later, when Chicago hosted the Democratic National Convention and police and protesters clashed over the Vietnam War.³⁵ Chicago became the epicenter of the clash between people—often poor residents of color—and armed authorities, a clash that continued following police raids and killings of Black Panthers on the city’s West Side.³⁶ And the result of these clashes— which were instigated by police violence—was a shift in federal authorities’ response.³⁷ These events induced the federal government to abandon the Commission’s recommendations.³⁸

Racial, social, and criminal justice were tied together even before the 1960s.³⁹ Indeed, from the late nineteenth century, the high rates of incarceration and arrest within African American communities created a racist “statistical discourse” about Black crime that was used to justify the perpetual expansion of the American prison system, sustained harsh sentencing practices, informed decisions surrounding capital punishment, and sanctioned racial profiling in general.

Furthermore, “[i]n cities like New York and Chicago, local law enforcement policies and policing practices further strengthened common associations between Black people and criminality by routing illegal activities and informal economies to police-patrolled vice districts in black neighborhoods.”⁴⁰

The Kerner Commission’s honest identification of racism as the prime cause was overlooked. Instead, government actors began financially and politically targeting protesters by—among other things—suppressing unrest through brutal means, supporting the militarization of police, and sowing the seeds for what would grow into the carceral state.⁴¹ As the Kerner Commission had forewarned, the apparatus of criminal justice was well on its way to becoming a racist system of distrust and hostility.⁴²

A. LEONARD FOSTER

The unrest in Chicago, particularly on its West Side, was unfolding virtually in the backyard of one Leonard Foster: the Illinois constitutional convention delegate who introduced the proportionate-penalties clause. To better understand and provide context for a bill of rights amendment that strikes right at the center of social justice, racial justice, and criminal justice, we explore in greater detail proponent Foster’s life and background. From 1967 to 1970, Foster, a Black man, was a member of the 28th Ward Democratic Organization of Chicago, which centered around the city’s East Garfield Park neighborhood—the very blocks hit hardest by the riots following Dr. King’s murder⁴³—and served as a member of the neighborhood’s Garfield Park Community Organization.⁴⁴ Through his deep community engagement, Foster demonstrated a response to civil unrest similar to that of the Kerner Commission and national civil rights leaders: rather than demand a punitive crackdown, Foster emphasized legal policies that would both ensure public safety and allow convicted people to return to freedom fully woven back into the social fabric.⁴⁵

Leonard Foster was raised in Glencoe, an idyllic suburb perched on the shore of Lake Michigan north of Chicago.⁴⁶ His father, Albon Langston “A.L.” Foster, had moved to the city in 1925,⁴⁷ and the family settled in Glencoe in 1940.⁴⁸ For a time, Glencoe was unusually integrated: The village had been home to a sizeable African-American population, including independent businesspeople and homeowners, such as Homer Wilson.⁴⁹ Homer Wilson hosted meetings of the nascent St. Paul African Methodist Episcopal (AME) church, founded in 1884, in his home for over a year.⁵⁰ When the group expanded, the Wilsons mortgaged their home and purchased a lot for the church.⁵¹ In 1920, around the time of Leonard’s birth, nearly 700 of Glencoe’s approximately 6,300 residents were Black, but by the 1930s, the Black population had dropped by half.⁵²

It was in this environment that Leonard Foster came of age, and in which his father became a noted community leader. Looking briefly at A.L.’s life, it is no surprise that his son Leonard would come to be a prominent civic leader in his own right.⁵³

A.L. Foster was born in 1893 to parents descended from formerly enslaved people.⁵⁴ A star athlete in high school who graduated magna cum laude from Wilberforce University in 1916, he worked as a teacher and for the YMCA before serving as an army lieutenant in World War I.⁵⁵ From all reports, A.L. spent his life working for the civic and professional improvement of the Black community.⁵⁶ From 1922 to 1925, A.L. was the executive secretary of the Urban League of Canton, Ohio, and then moved to Chicago where he served in the same position for the Urban League until 1946.⁵⁷ In his capacity as the executive director of the Cosmopolitan Chamber of Commerce, a consortium of 350 businesses committed to doing business in the Black community, A.L. was a prominent leader.⁵⁸

He protested racial segregation through letters, demands, and even legal action.⁵⁹ As a resident of Glencoe and then-executive secretary of the Chicago Urban League, he participated in a 1942 lawsuit that led to the integration of the Glencoe Park District’s Park Avenue beach—the only one in the village.⁶⁰ One compelling encapsulation of A.L.’s persona and outlook can be found in a 1945 letter that he sent to the manager of Kelly’s Hotel, a small establishment in Iola, Kansas. Copying the Governor of Kansas and the mayor of Iola on Chicago Urban League letterhead, A.L. protested the manager telling him to sit in the rear of a restaurant reserved for AfricanAmericans. “In these days when we are fighting for democracy (I am a veteran of the last World War) you lend encouragement to Hitler and all that he stands for when you deliberately insult Americans because their ancestors happen to come from Africa,” he wrote.⁶¹

In many ways, Leonard Foster was his father’s son. Like A.L., contemporaneous sources reveal that Leonard Foster was a civic and political leader, albeit an idiosyncratic one who both worked within and critiqued political establishments and reform movements—and whose fight for extending the benefits of first-class citizenship to Black Chicagoans was, consequently, often solitary.⁶² In short, Leonard Foster’s contemporaries remember him as a man of “singular gifts” who “seemed to be in emotional turmoil much of the time.”⁶³

An attorney with degrees in law, psychology, sociology, and music (he was a talented violinist),⁶⁴ Leonard Foster served as an assistant corporation counsel for the City of Chicago; later, he was one of a handful of Black assistant state’s attorneys in a Cook County office otherwise filled with white prosecutors.⁶⁵

Despite being a public employee, Leonard was a perennial candidate for office who often ran on outsider themes of ending city government corruption and ensuring accountability. In 1966, he ran as an independent for alderman of Chicago’s 28th Ward⁶⁶ but, like thirteen other Black candidates, he was thrown off the ballot by the Board of Elections in a move some thought was the result of “pressure by the Democratic political machine.”⁶⁷ He did, however, serve as a member of the 28th Ward Democratic Organization from 1967 to 1970—giving him a front-row seat to the unfolding street clashes between police and protesters on Chicago’s West Side—and he ran for and was elected delegate to the 1970 constitutional convention from the 18th Ward, also on the unrest-riddled West Side.⁶⁸

In addition to his political work, Leonard was an advocate for racial equality. He was, according to one local leader, “unreconciled to the way of bigots.”⁶⁹ Leonard’s particular passion was the advancement of communitybased, neighborhood-led movements to end racial discrimination, particularly in the areas of housing and employment.⁷⁰ While he believed strongly in the messages of national leaders like Rev. Dr. Martin Luther King, Leonard was fundamentally an everyman who distrusted the “star system of civil rights work” and warned strongly against institutional capture of those movements.⁷¹ Too many of Chicago’s civil rights leaders, he wrote, ended up taking “very good jobs in the power structure, and lost any interest they had in the good of the community.”⁷²

While his willingness to challenge both the Cook County Democratic political machine and “established” activist movements made Leonard, at times, a man without a country, he was also present for significant moments in civil rights history. In 1966, both Leonard and his father participated in a summit between Mayor Richard J. Daley and Rev. Dr. Martin Luther King, Jr.⁷³ The summit followed weeks of demonstrations on Chicago’s West Side, and was part of an effort to end unrest and address the Chicago Freedom Movement’s demands to end housing discrimination.⁷⁴ Not only did the summit lead to the 1968 Fair Housing Act,⁷⁵ it also brought Foster into contact with key members of the 1970 constitutional convention with whom he would serve.⁷⁶ And it was there at the constitutional convention, they wrote, that “he was one of the most eager and useful members” in attendance.⁷⁷

B. THE 1970 BILL OF RIGHTS COMMITTEE

The sixth constitutional convention hosted the most diverse delegation in Illinois history. “The delegates who gathered in Springfield . . . on December 5, 1969 were more varied in occupation, sex, and race than any previous constitutional convention delegation in Illinois.”⁷⁸ Leonard Foster was not the only delegate at the convention with a background relevant to social justice. Indeed, “a delegation like this,” which included women and Black men, “had never before been convened.”⁷⁹ And, the delegates on the Bill of Rights Committee—the group tasked with considering the proportionate-penalties clause, among other provisions—included people from diverse religious backgrounds and urban and rural backgrounds; it included republicans, democrats, and independent democrats; it included lawyers, a teacher, a politician, a priest, and a woman who worked as a homemaker.⁸⁰

Among the committee’s Black delegates was Albert A. Raby, a key leader of the Chicago Freedom Movement with whom Leonard had worked at the earlier summit to address housing discrimination.⁸¹ If Foster’s advocacy was more reserved, Raby was explicit in his denunciation of white racism: “[Raby] was a fighter for the rights of his people and disadvantaged people, and he stood up firmly for every cause dear to him.”⁸² With a background as a Chicago teacher and organizer, Raby was, by 1970, a leading civil rights activist who was instrumental in racial justice movements throughout the Chicago area and nationally, including serving as a key Chicago partner for the work of Dr. King.⁸³ During the debate on section 11, Raby spoke out about rehabilitation as the purpose of punishment.⁸⁴ Interestingly, at the convention, both Foster and Raby refused to caucus with the other Black delegates, perhaps out of an unwillingness to side with those who were more affiliated with—or beholden to—the established Democratic machine.⁸⁵ Unlike Foster, however, Raby was considered among the most left-leaning members of the delegation.⁸⁶

On December 30, 1969, convention President Samuel Witwer announced the names of the delegates whom he had chosen to chair various committees.⁸⁷ For the Bill of Rights Committee, which would tackle issues including criminal sentencing, Witwer appointed Chicago attorney Elmer Gertz as Chair.⁸⁸ Gertz was famed for his loud civil rights advocacy and for taking on controversial criminal cases, including securing the parole of Nathan Leopold.⁸⁹ Indeed, Gertz’s appointment was met with derision by establishment newspapers who considered Gertz to be a leftist irritant; the Chicago Tribune described him as a “maverick” who had “a long record as a noisy, ineffective busy-body.”⁹⁰ The Tribune went on to warn:

The Illinois constitution now contains a perfectly good bill of rights. Many eminent citizens have urged that it be left as it is and labor leaders have warned that they will fight any changes. If the bill of rights committee turns its hearings into a hunting ground for ideological freaks and peddlers of utopian schemes, the whole Convention is likely to be discredited in the eyes of the voters.⁹¹

With this warning doubtless ringing in their ears, and with the winds of unrest and, perhaps, change swirling through Chicago’s neighborhoods, the Bill of Rights Committee—including Leonard Foster, Al Raby, and Elmer Gertz—went to work. The group set themselves a task: revisiting the Bill of Rights in the Illinois constitution.⁹² But as the delegates did so, they understood that—as the Tribune had warned—voters had not signaled a great demand for a changed bill of rights when they voted for a constitutional convention.⁹³ Many people seemed pleased with the status quo embodied in the 1870 Bill of Rights.⁹⁴ Thus, the delegates approached change with caution: their watchwords were “stop, look, and listen.”⁹⁵

The ever-present benchmark for the task, of course, was the federal Bill of Rights.⁹⁶ The Bill of Rights Committee, accordingly, considered a significant part of their task to debate whether to go above and beyond the protections already guaranteed by the federal constitution.⁹⁷ Indeed, delegates understood that each of them were citizens of a larger union, and “most of our individual rights stem from the federal tree.”⁹⁸ However, as Gertz noted, the “state bill of rights might perform important functions. We might go beyond what was required by the Fourteenth Amendment. We could not give our citizens less, but we could give them more. Would we?”⁹⁹

Some commentators urged the delegates to simply leave the 1870 Bill of Rights in place. Indeed, there was a long history behind those provisions: Not only did the 1870 Bill of Rights track the federal Constitution, but the provisions were almost entirely derived from the state constitution of 1848, and eighteen of the twenty sections traced back to Illinois’s first constitution in 1818.¹⁰⁰ And by 1970, those provisions had long gone undisturbed: in the century following the adoption of the 1870 constitution, there had been no amendments to the Bill of Rights.¹⁰¹ Some observers, accordingly, pointed out that the 1870 Bill of Rights was within the norm of “states’ bills of rights generally,” and argued it should be left untouched.¹⁰²

What neither [academics] nor the other commentators observed was that, despite the hoary years of the basic guarantees, [the Bill of Rights was] ignored with respect to the race held in servitude supposedly in the South alone . . . The lesson in this is that traditional language must be reexamined by those drafting new constitutions in order to make certain that the rights are truly operative for all . . . [How] could we assure due process and equal protection of the laws, so that we had not verbalisms but realities, secure against the most authoritarian officials? . . . How could we achieve progress in these areas constitutionally?¹⁰³

The 1970 Bill of Rights delegates aimed to answer this question. Recurringly and regularly, considerations of criminal and racial and social justice animated discussions around reforming the Bill of Rights.

Delegate Kemp, a Black man who served as vice-chairman of the Bill of Rights Committee, sought to ban discrimination and wiretaps after having experienced both.¹⁰⁴ For his part, Al Raby, “conscious of those on the lower rungs of the social ladder, felt that there ought to be a pronouncement that all persons are entitled to the basic necessities of life.”¹⁰⁵ Indeed, as the President of the convention later recalled, Al Raby encouraged other delegates to consider racial discrimination: On the convention floor, and off, “He was an authentic voice of the 1960s Civil Rights Movement, as the leading independent . . . for minorities in Illinois.”¹⁰⁶

Another delegate, Bernard Weisberg, “did not want anyone to be committed to jail, whether through bail or fine, simply because he was poor.”¹⁰⁷ Indeed, a strong cohort of members spent a considerable amount of time debating whether the new Bill of Rights should include a right to bail or a right to attain automatic full citizenship after completion of a sentence.¹⁰⁸ Gertz, Raby, and Weisberg, for instance, proposed a revision to the bail clause of section 7.¹⁰⁹ Their concerns, as noted in the minority report, related to ensuring that the accused was not incarcerated or confined simply as a result of poverty.¹¹⁰ Weisberg and Raby, among others, also argued that fines and fees should be unconstitutional if used to imprison those unable to pay them.¹¹¹ Still, other members displayed further commitment to lessening harsh punishments by arguing for the abolition of the death penalty—a prominent issue that became “an emotional focal point” for the Committee.¹¹²

Several Bill of Rights Committee delegates also felt that considerations of racial justice required a reconsideration of the constitutional protections surrounding sentencing. As Gertz said:

All of us, no matter how we feel about the penal system, recognize that there is a lot of caprice and whim in sentencing. It sometimes seems that it depends upon race, color, creed, kind of lawyer, all kinds of fortuitous circumstances having nothing to do with the offense; and as I see it, it is possibly of constitutional importance in Illinois—and nationally . . . —that the question of standards for sentence be considered in any bill of rights.¹¹³

As for Raby, the president of the convention recalled that:

In the convention’s Bill of Rights Committee, in private nightly discussions with independent delegates from Chicago, as well as on the floor of the convention and in the many private and public events in which delegates were involved, Al urged all of us to understand what it meant to be a victim of racial discrimination.¹¹⁴

II. A NEW VISION FOR THE PROPORTIONATE-PENALTIES CLAUSE

As it had previously been interpreted and applied by the Illinois judiciary, the 1870 version of the proportionate-penalties clause was essentially synonymous with the federal Eighth Amendment’s Cruel and Unusual Punishment Clause, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”¹¹⁵ The Illinois analog then stated: “All penalties shall be proportioned to the nature of the offense; and no conviction shall work corruption of blood or forfeiture of estate; nor shall any person be transported out of the State for any offense committed within the same.”¹¹⁶ Like its Eighth Amendment analog, the original proportionate-penalties clause contained no references to the offender. Yet, even the 1870 version contained proportionality in its text.¹¹⁷ It was, however, also silent as to the objective of punishment. Despite the linguistic variation between the Eighth Amendment and the 1870 version of the proportionate-penalties clauses, the Illinois courts treated these clauses as similar.¹¹⁸ Initially, and as we discuss below, any revisions failed to pass out of the Bill of Rights Committee. Only on the convention floor did a change to the original text pass.¹¹⁹

A. COMMITTEE PROCEEDINGS

The Bill of Rights Committee met over a period of about twenty weeks to consider the existing provisions and prepare recommendations in advance of the full constitutional convention. While records of the committee’s process are not exhaustive, its majority report shows that it had received numerous proposals on various subjects, heard from hundreds of witnesses, and considered volumes of written material.¹²⁰ At the end of this process, the committee unanimously recommended that twelve of the bill of rights’ original twenty sections be left unchanged, urged amendment of the preamble and eight sections, and proposed seven entirely new sections.¹²¹

With respect to the proportionate-penalties clause, however, all proposed revisions failed in committee. For instance, while the committee unanimously voted to maintain the clause’s stricture that “no conviction shall work corruption of blood or forfeiture of estate,” a minority of members unsuccessfully sought to prohibit convictions resulting in permanent forfeiture of civil rights.¹²² Others tried and failed to go further, unsuccessfully advancing a proposal to automatically restore civil rights on completion of a prison sentence or parole term.¹²³ Other unsuccessful proposals sought to explicitly abolish the death penalty. More conservatively, still others sought to jettison the 1870 language and replace it with the exact words of the federal Eighth Amendment.¹²⁴

And finally, it appears that in committee, a minority of delegates wanted to add an additional clause immediately after the existing language, which would have said: “all penalties shall be proportioned both to the offender and to the nature of the offense.” The proposed addition would have specified that penalties should also be aimed at “the objective of restoring the offender to useful citizenship.”¹²⁵ This, too, was unsuccessful; the committee voted 7 to 5 to reject all these proposals and instead retain the original language of Section 11 of the 1870 bill of rights.¹²⁶

At the moment, the winds of change were calm—at least until the convention.

B. CONVENTION FLOOR PROCEEDINGS

Delegates on the convention floor considered the proportionatepenalties clause on May 29, 1970. In keeping with earlier committee proceedings, Delegate John E. Dvorak offered a proposal to maintain the proportionate penalties language of the 1870 constitution.¹²⁷ In so proposing, Dvorak noted that courts had interpreted the 1870 language to be synonymous with the Eighth Amendment, that the committee was unprepared to recommend substantive changes, and that they did not want to make purely stylistic changes so as to avoid confusion.¹²⁸ Indeed, on May 29, 1970, Delegate Dvorak explained to the voting delegates that:

the general intent of the committee was that while there were other issues to be considered—or while that we did consider these other issues—we felt that we could not include them because they were legislative in nature, and that we would, by changing the language, prefer to make no substantive changes; so we did not want to make stylistic changes. We left the language to exist as it was.¹²⁹

As indicated in our committee report, this section passed with a seven-to-five vote, and I think this is not indicative of the intent to retain this language. The five votes dissenting on retention were broken down between proponents of some akin matters—for instance, proponents of inclusion of the federal language of “cruel and unusual punishment.” We felt, I believe as a committee, that while we could either include or substitute that language for the existing language, we would be making no substantive changes and, therefore, we preferred not to do it. There were proponents, also, of the abolition of the death penalty, insisting that that be placed in this section. There were numerous reasons, and after extended debate, the committee felt that we should not include that in this section or any section of the bill of rights, and that it would be best left to the legislature for determination on this controversial issue.

...

MR. WHALEN: Mr. Dvorak, I have a question concerning clause 1 of section 11. Did the Bill of Rights Committee consider inserting a requirement that reasons would be given for penalties imposed? The existing section 11 requires that penalties be proportioned, but it doesn’t state that judges or juries need be charged with certain qualifications or standards when they impose a penalty. Did you or your committee consider requiring that the standards be given for imposing penalties?

MR. DVORAK: Well, my recollection is that we did consider that, but not under this section. Offhand, I could not tell you what section it was. Maybe Chairman Gertz can.

MR. GERTZ: While we were deliberating and even now, a landmark case is pending in the United States Supreme Court—Maxwell v. Bishop—and the issue there, among others, is whether or not there is a Constitutional requirement that there be standards for imposing the death penalty; and we felt that while that case was pending and while the law was being developed, that it was perhaps inadvisable for us to anticipate what might be done in a fashion that might go contrary to those pending cases.

MR. WHALEN: As I understand it, Chairman Gertz, Maxwell only applies to jury cases, and my question is whether the committee considered requiring judges to state standards or reasons for imposing certain penalties?

MR. GERTZ: I read the argument before the United States Supreme Court in Maxwell v. Bishop, and in the argument, Anthony Amsterdam, who is the counsel for the defense — principal counsel for the defense—was asked by various members of the court as to the applicability of that in cases not tried before juries; and as I read the feeling of the court in counsel, it seemed to be recognized that in perhaps all cases we had arrived at the point where sentences had to be imposed upon other than whim—that there had to be reason back of any sentence, whether the extreme sentence of death or any other sentence.

PRESIDENT WITWER: Any other questions?

MR. WHALEN: I have another question, Mr. President.

PRESIDENT WITWER: Yes, Mr. Whalen? MR. WHALEN: Mr. Dvorak, did your committee consider whether corruption of blood or forfeiture of estate would be prohibited under the due process clause, and whether it requires special treatment in the constitution?

MR. DVORAK: No, I think that we did consider it, and I think we were in agreement that it was, in fact—the due process clause was, in fact, applicable to this phraseology; and as I have indicated before, the idea of—contained in the Eighth Amendment to the United States Constitution—“cruel and unusual punishment” was held to be applicable to the states through the Fourteenth Amendment to the United States Constitution, the due process clause. So in both instances, it does, in fact, apply.

But only a few days later, on June 2, 1970, during floor proceedings, Leonard Foster proposed an amendment to that section: the inclusion of the same restoration language that had been previously rejected by the Bill of Rights Committee.¹³⁰ Foster’s amendment stated, in relevant part, “All penalties shall be proportioned both to the nature of the offense and to the objective of restoring the offender to useful citizenship.”¹³¹

Foster went on to explain the reasons for his proposal. He told convention delegates that the original text was concerned only with whether the punishment was cruel and unusual in relation to the act. By blinding itself to the convicted person’s record, character, and prospects, he argued, the clause no longer tracked modern evidence-based criminological best practices. As he pointed out:

Traditionally the constitution has stated that a penalty should be proportionate to the nature of the offense. I feel that with all we’ve learned about penology that somewhere along the line we ought to indicate that in addition to looking to the act that the person committed, we also should look at the person who committed the act and determine to what extent he can be restored to useful citizenship.¹³²

When asked about the scope of his amendment—whether it would, for instance, necessarily require the abolition of the death penalty—Foster made an answer that clarified the breadth of his vision, both on the severe and mild ends of the punishment spectrum:

I don’t think this would necessarily preclude the death penalty, although I wish it could. I think that if the offense were considered so overwhelmingly outrageous that the General Assembly wanted to impose the death penalty, I think they could do so; but if they wanted to impose something less than the death penalty, then I think the judge would be required also to consider the use of parole, probation, and it would even go to what we did in our prisons, in terms of having people learn how to do something more useful than make license plates.¹³³

At this point, on the floor, Elmer Gertz added:

I certainly look with great sympathy and approval with the proposed amendment . . . I think the spirit of the proposed amendment is in accordance with modern penology. I think if we’re going to lower the crime rate and make this a more livable world, we have to think in such terms as those set forth by Mr. Foster.¹³⁴

Delegates then asked about the meaning of the amendment’s focus on rehabilitation. One Delegate Hendren asked: “Leonard, specifically, what does the word proportion mean in your amendment, and does this mean major emphasis would be placed on rehabilitation?” Foster’s response:

In terms of proportion, the more serious the crime, the more serious the punishment; and also, in deciding what punishment to impose, the court would do that which with regard to this particular convicted person is most likely to get him back into useful citizenship. It means that they can’t just take rules of thumb and apply them willy nilly but they have to look at each situation rather carefully, applying whatever standards are developed.¹³⁵

Hendren continued: “Would major emphasis be placed on rehabilitation?” Foster responded:

I would hope so. At least some emphasis would have to be placed on rehabilitation under this provision. Now, of course, probably there would be worked out by the legislature and by rules of court just where the emphasis would lie. This is a pretty wide open statement here. It’s just a statement of sentiment, almost, on the part of the Convention. I would hope, though, that it would lead to the major thrust being towards rehabilitation rather than just punishment.¹³⁶

As the debate continued, delegates pressed Foster on whether the legislature, in addition to courts, would have to abide by the constitutional mandate that punishments restore the offender to useful citizenship. In particular, Delegate Kamin asked:

I am curious. Is it contemplated that the requirement is directed to the legislature as well as to the court and is the legislation which provides a penalty subject to challenge under this provision? That’s my first question. My second question is, if a judge is within the range of penalties prescribed by the legislature and if the legislation passes the test, hasn’t the judge passed the test with regard to the proportion?¹³⁷

Leonard Foster replied:

As to the first question, as I remember it, yes, this would be binding on the legislature. As to the second question, I would presume that in order for this provision to be effectuated there would have to be rules adopted by the courts, but where the legislature provides a range—say, five to twenty for a given offense—even if the judge is within that range under this provision, I would expect him to somehow justify picking either the five or the twenty.¹³⁸

Further questions ensued, but one by one delegates fell in line. Eventually, Leonard Foster’s proposed amendment passed the convention floor with a vote of 41 to 34.¹³⁹ In full, the amendment, codified in 1970 as Article 1, Section 11 of the Illinois constitution, proclaims that “all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. No conviction shall work corruption of blood or forfeiture of estate. No person shall be transported out of the State for an offense committed within the State.”¹⁴⁰ And the people of Illinois adopted the proposed constitution on December 15, 1970.¹⁴¹ The Bill of Rights’ proportionate-penalties clause was now oriented squarely towards the goal of rehabilitating the offender.

III. THE MEANING OF ILLINOIS’S NEW PROPORTIONATE-PENALTIES CLAUSE

In enacting the expanded, modern-day proportionate-penalties clause, Illinois became a national leader in providing constitutional limits against excessive punishments. Illinois has clear language prioritizing rehabilitation as a constitutionally mandated purpose of criminal sanctions.¹⁴² The courts must consider rehabilitation in assigning punishment. Today, eleven state constitutions have language identical to the Eighth Amendment, proscribing “cruel and unusual” punishments without additional gloss.¹⁴³ Another thirteen states use the “cruel and unusual” language as their constitutional centerpieces while supplementing with additional requirements.¹⁴⁴ Another sixteen state constitutions contain federal-adjacent constitutional provisions that disjunctively proscribe cruel or unusual punishments.¹⁴⁵ And six additional states proscribe cruel, but not unusual, punishments in their constitutions.¹⁴⁶

A minority of states, including Illinois, have taken substantively different approaches.¹⁴⁷ Oregon’s constitution, for instance, both prohibits cruel and unusual punishment and adds a requirement that all penalties be proportionate to the offense.¹⁴⁸ The Alaska Constitution, most similar to the Illinois constitution, contains a sentence related to the purposes of punishment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Criminal administration shall be based upon the following: the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation¹⁴⁹

Unlike Illinois, however, the Alaska constitution offers up a variety of punishment purposes without singling any one out as most significant.¹⁵⁰

The Illinois proportionate-penalties clause most clearly acknowledges that courts must consider the offender and not only the offense; additionally, it contains an affirmative statement of the primary purpose of punishment: to “restore the offender to useful citizenship.”¹⁵¹ Its plain language constitutionally requires, in other words, a penal focus not on punishment only, but also on restoration.¹⁵² In this way, Illinois delegates passed the most progressive sentencing constitutional amendment that existed at the time and it remains so today.¹⁵³

The plain language of the Illinois proportionate-penalties clause establishes protections that go beyond its predecessor—and beyond the federal Constitution’s Eighth Amendment. Many delegates, including those on the Bill of Rights Committee, seriously considered maintaining the existing 1870 language, including interpretations conforming to the Eighth Amendment. The committee delegates, in particular, expressly recognized that the Supreme Court of the United States had recently held—in its 1962 decision, Robinson v. California—that the Fourteenth Amendment incorporates the Cruel and Unusual Clause against the several states.¹⁵⁴ But the convention as a whole decided to change the proportionate-penalties clause—with full knowledge that they were moving away from a scheme that had been interpreted in lockstep with the Eighth Amendment.¹⁵⁵ This becomes even more apparent given the 1970 Illinois delegates’ express desire to only make changes with substantive effect.¹⁵⁶

The long duration of time between changes also supports the conclusion that the drafters intended the new clause to depart substantively from its longheld predecessor. Several scholars have noted that there is a correlation between the magnitude of constitutional change and the passage of time.¹⁵⁷ In their study comparing constitutional changes, Professors Law and Whalen observed the following:

[The frequency and] magnitude of change are inversely correlated: the more time that elapses between changes, the bigger the changes tend to be. Conversely, the more frequently a constitution changes, the smaller the changes tend to be. In other words, constitutional change exhibits a temporal pattern of either incremental tinkering or periodic bursts.”¹⁵⁸

As noted above, Illinois’s proportionality clause had remained static since its first constitution in 1818.¹⁵⁹ Indeed, as one of the delegates noted, the 1870 version of the proportionality clause is taken nearly word for word from the English Bill of Rights of 1689.¹⁶⁰ The amount of time—more than 150 years—between the original text and the 1970 amendment, further removes doubt that the change was one of meaning and substance, and not merely of wording.

In addition to the plain text, the convention debates show that the delegates intended the new clause to require criminal punishments to be aimed directly at restoration to useful citizenship. For example, Leonard Foster made the intent behind his proposed amendment clear: “Since Article 11 sets forth as a sole criterion the offense, I offer this amendment so that the courts in addition to the offense can consider the offender.”¹⁶¹ On the convention floor, Foster and his colleagues repeatedly explained that the “major thrust” of the amendment was directed at “rehabilitation rather than just punishment” and cited the lessons of modern penology in support of that idea.¹⁶² He explicitly encouraged the consideration of parole and probation in place of more restrictive modes of confinement, understanding that less restrictive punishments facilitated quicker paths to rehabilitation.¹⁶³

In addition to differences in text and intention, the clause’s insistence on rehabilitation places particular requirements on state judges at sentencing and on legislatures during lawmaking. As the Supreme Court of the United States has repeatedly made clear, the Eighth Amendment categorically limits the imposition of death on juvenile offenders and the imposition of juvenile life without the possibility of parole for certain offenses.¹⁶⁴ The Eighth Amendment also limits mandatory life sentences without the possibility of parole when imposed against juvenile offenders.¹⁶⁵ Likewise, Illinois’s “useful citizenship” clause requires more than proportionality. It requires courts to develop a framework for assessing restoration to citizenship before any prison sentence may be imposed. It would not simply proscribe all mandatory sentences, and require individualized consideration for every offender, but also require that such individualized consideration extend to restoration to useful citizenship.¹⁶⁶

Importantly, moreover, Foster’s specific insistence on restoration to “useful citizenship” is crucial in light of his upbringing. Foster grew up in the proud tradition of a Black civic leader to whom a tightly woven social fabric, based on earned and deserved equality, was the best and most vital locus of civic life. Foster’s rehabilitative goal was not to break the will, nor was it to create a mindset of chastened misery or dependent submission on the part of the convicted person. Rather, all evidence suggests that he intended to create a penal system that would allow a person to leave prison and once again look their fellow citizens in the eye. In this sense, the amendment, Foster explained, “would even go to what we did in our prisons, in terms of having people learn how to do something more useful than make license plates.”¹⁶⁷ Punishment policy was to be directed towards something more fundamental, and something broader than simply withholding freedom for a set term of years; under Foster’s vision, the state must ensure that those years are spent preparing convicted people to reacquire all the rights and responsibilities that citizenship entails. It is a bold vision—a vision that heralds much for ending the era of mass incarceration that was, unfortunately, soon to develop.

IV. THE PROPORTIONATE-PENALTIES CLAUSE’S INTENT & ORIGINAL MEANING HAS GONE UNFULFILLED

A. THE EXPANSION OF THE CARCERAL STATE AND DISPROPORTIONATE SENTENCES

As Illinois delegates debated and passed a constitutional provision to restore more of its convicted people to useful citizenship, the United States began ascending to its place as the world’s largest jailer.¹⁶⁸ Beginning in the 1970s and continuing through today, the United States’ jail and prison population exploded. While the rise of the carceral state—often called mass incarceration—has many causes, dramatically higher crime rates was not one of them; incarceration and crime rates have not moved in lockstep.¹⁶⁹ Instead, changes in sentencing laws and longer sentences contributed to a near quintupling of the carceral state.¹⁷⁰ Close to two million U.S. citizens are under some form of carceral supervision.¹⁷¹ Professor John Pfaff notes that “the single most striking statistic in the American criminal justice system is its thirty-year expansion in prison population. From 300,000 prisoners in 1977, the prison population has risen steadily to over 1.5 million as of June 30, 2005.”¹⁷²

This proliferation of prisoners comes in large part from the changes in the types and lengths of sentences. Beginning in 1973, mandatory minimum sentencing schemes proliferated and new “truth in sentencing” laws required people to serve 75% or 85% of their sentences. Both innovations caused sentence lengths to increase.¹⁷³ Life terms—both with and without parole—have also become far more common. Today, nearly one in seven people in prison is serving a life sentence, and the number of people serving life without the possibility of parole is nearly six times higher today than it was in the early 1990s.¹⁷⁴ But, despite both state and federal constitutional prohibitions on excessive punishments, courts have been largely sidelined— or, worse, complicit—in this problem.¹⁷⁵ When it comes to lengthy prison terms, it has been nearly impossible to challenge sentences as unconstitutionally excessive.¹⁷⁶

The dramatic and unchecked expansion of the prison state has disproportionately impacted marginalized communities and people who are Black and Latino.¹⁷⁷ For example, Black people represent 55% of those serving life sentences without the possibility of parole, but only 14% of the total United States population.¹⁷⁸ Scholars have posited that contemporary mass incarceration trends fit within a much longer and larger antiblack punitive tradition.¹⁷⁹

Further still, severe effects persist even after people are freed from prison, which appears as a feature (and not a bug) of American sentencing practices. Instead of restoring offenders to useful citizenship, states and the federal government have done the opposite by passing tens of thousands of laws that ensure “civil death.”¹⁸⁰ Nearly 50,000 state and federal regulations impose restrictions on people with a felony conviction.¹⁸¹ From voting disenfranchisement to exclusion from housing, education, and employment, people who have served time in prison are never really free, never “restored.”¹⁸² As one federal judge concluded, the sheer breadth of various post-incarceration penalties is astounding:

The range of subject matter that collateral consequences cover can be particularly disruptive to an ex-convict’s efforts at rehabilitation and reintegration into society. As examples, under federal law alone, a felony conviction may render an individual ineligible for public housing, section 8 vouchers, Social Security Act benefits, supplemental nutritional benefits, student loans, the Hope Scholarship tax credit, and Legal Services Corporation representation in public-housing eviction proceedings. Moreover, in addition to the general reluctance of private employers to hire ex-convicts, felony convictions disqualify individuals from holding various positions. Oftentimes, the inability to obtain housing and procure employment results in further disastrous consequences, such as losing child custody or going homeless. In this way, the statutory and regulatory scheme contributes heavily to many ex-convicts becoming recidivists and restarting the criminal cycle. Denials of social benefits and the difficulty of obtaining employment are only two aspects of post-conviction life. States impose other restrictions that exclude convicted felons from fully rejoining society.¹⁸³

The epidemic of mass incarceration did not leave Illinois unscathed. In Illinois, beginning in 1978, incarceration rates skyrocketed from approximately 100 out of every 100,000 people to now about 497 to every 100,000 people—a rate far greater than “almost any democracy on earth.”¹⁸⁴ Each year, approximately 173,000 people in Illinois are booked into jails.¹⁸⁵ And, like the federal system and other state counterparts, Black and Latino people from Illinois are disproportionately impacted.¹⁸⁶

In short, despite the proportionate-penalties clause’s rehabilitative mandate, Illinois courts and legislatures—like their federal counterparts— have adopted policies that achieved quite the opposite.¹⁸⁷ Indeed, despite explicit text requiring it, the courts in Illinois have generally ignored the rehabilitative mandate. Mass incarceration—practically by definition a set of policies fundamentally discordant with notions of rehabilitation and restoration—thrives in Illinois and around the country.¹⁸⁸

B. THE EIGHTH AMENDMENT STANDARD

Neither the Eighth Amendment nor Illinois’s proportionate-penalties clause has served to limit extreme sentences. At least under modern case law, the Eighth Amendment of the federal Constitution does not have a purpose to rehabilitate or restore offenders to useful citizenship. Indeed, its plain text does not suggest any particular purpose or goal of punishment, but simply proscribes cruel and unusual punishments. In the absence of federal help, the Supreme Court of the United States has consistently said that state legislatures have broad leeway to set the purposes of adult criminal sentences—including sheer, retributive punishment—and to pass sentencing laws in accordance with those purposes.¹⁸⁹ And state constitutions go further than the federal constitution.

Yet, the Supreme Court has held that the Eighth Amendment contains a narrow “gross proportionality” principle, ascertainable in the history and intent of the Amendment, that discourages extremely severe sentences disproportionate to the nature of the crime.¹⁹⁰ In Trop v. Dulles, decided in 1958, the Court explained that proportionality can be considered in light of the “evolving standards of decency that mark the progress of a maturing society.”¹⁹¹ The Supreme Court’s most conservative members have argued that the Eighth Amendment does even less. That minority argues that the Eighth Amendment limits only methods of punishment that are themselves “cruel and unusual,”¹⁹² and that there is no protection against disproportionate sentences at all. Under either view, though, the human being before the court is irrelevant. When it comes to adult prison terms, the Eighth Amendment looks only at the nature of the offense and the severity of the punishment.¹⁹³ Whether the person who received that punishment has been battling addiction or poverty, or is intellectually disabled, or has been the victim of violence, is all beside the point.¹⁹⁴ And what that person needs to rehabilitate—to return to useful citizenship—is absent from the analysis.¹⁹⁵

C. ILLINOIS COURTS RENDER THE PROPORTIONATE-PENALTIES CLAUSE WHOLLY INEFFECTIVE

In Illinois, the 1970 constitution’s proportionate-penalties clause has too often been interpreted in a way that renders it wholly ineffective as a check on policies driving mass incarceration.¹⁹⁶ In fact, the judiciary has largely ignored the plain text and history of the proportionate-penalties clause.¹⁹⁷ Occasionally, the courts distinguish between the Eighth Amendment and the proportionate-penalties clause.¹⁹⁸ More often, they do not.¹⁹⁹ To be sure, the courts in Illinois do not appear to be against the ideal of rehabilitation, and, from time to time, announce as much.²⁰⁰ Rather, the courts have not yet integrated and adopted the history of the text and its analysis on the floor and in debates.

Before its passage, Illinois courts were largely deferential to the legislature when it came to reviewing sentences, unless the sentences in question were “‘cruel,’ ‘degrading’ or ‘so wholly disproportionate to the offense committed as to shock the moral sense of the community.’”²⁰¹

Since 1970, little change has occurred, despite the drafters’ clear intent to incorporate “useful citizenship” considerations into the constitutional analysis. Instead, and unfortunately, the “useful citizenship” clause’s plain text and intent has been largely sidelined by the Illinois courts. Of the more than one hundred cases raising issues under the new proportionate-penalties clause in the first decade or so after the provision went into effect, few resulted in reductions of sentences. In those few cases, the defendant usually was a very young first-time offender.²⁰²

On many occasions, Illinois courts essentially ignored the new clause. In People ex rel. Ward v. Moran—only a few years after Leonard Foster’s “restoring the offender to useful citizenship” language was adopted—the court considered the case of a defendant convicted of theft and forgery who sought to reduce his concurrent terms of incarceration (1–5 years and 1–3 years) to probation.²⁰³ Rejecting his argument that probation was more conducive to rehabilitation, the court concluded that reducing the defendant’s sentence would impermissibly elevate the proportionate penalty clause’s rehabilitative purpose above considerations related to the gravity of the offense:

It is urged that under the facts of this case probation was the only method by which Broverman[, the defendant,] could be restored to useful citizenship. We do not find this reasoning persuasive. There is no indication that the [useful citizenship clause] is to be given greater consideration than that which establishes that the seriousness of the offense shall determine the penalty.²⁰⁴

In People v. Brownell, the Supreme Court of Illinois upheld a death sentence without mentioning the proportionate-penalties clause; rather, it simply concluded that “the Supreme Court’s statements in its recent decisions on the constitutionality of other States’ death penalty statutes [was] dispositive.”²⁰⁵ And in yet another case, the court acknowledged that the 1970 clause required sentences to be proportional to the crime and calibrated toward rehabilitation, but nonetheless determined that the clause did not preclude the legislature from requiring mandatory minimum sentences of life imprisonment:

The rehabilitative objective of article I, section 11, should not and does not prevent the legislature from fixing mandatory minimum penalties where it has been determined that no set of mitigating circumstances could allow a proper penalty of less than natural life for the crimes of two or more murders. It is within the legislative province to define offenses and determine the penalties required to protect the interests of our society.²⁰⁶

Beyond proportionality, Illinois courts have “not spoken consistently on the relationship between our proportionate-penalties clause and the Eighth Amendment.”²⁰⁷ Some rulings interpret the Illinois proportionate-penalties clause in conformance with its federal analog—effectively nullifying any “useful citizenship” considerations.²⁰⁸ In the 2014 decision People v. Patterson, for instance, the Illinois Supreme Court reviewed a juvenile defendant’s transfer to an adult facility and found that “the Illinois proportionate-penalties clause is co-extensive with the Eighth Amendment’s cruel and unusual punishment clause.”²⁰⁹ The court rejected the defendant’s argument that the transfer statute, coupled with harsher penalties and truth-in-sentencing laws, violated the state or federal constitution.²¹⁰

Similarly, in People v. McDonald, decided in 1995, the court found that because the proportionate-penalties clause does nothing more than what is provided by the Eighth Amendment, there is no state constitutional right to have the jury consider lingering doubt about guilt during the sentencing phase of a capital trial.²¹¹ Notably, the McDonald court acknowledged that “when interpreting State constitutional provisions, [it] is not bound by the Supreme Court’s interpretation of similar Federal constitutional provisions.”²¹² Instead, the court considered the intent of the framers and reviewed the proceedings of the 1970 constitutional convention, but incorrectly decided that it “clearly indicates the framers’ understanding that article I, section 11 was synonymous” with the Cruel and Unusual Punishment Clause of the Eighth Amendment.²¹³ As demonstrated above, the records indicate the opposite.

Indeed, in the 2012 case People v. Clemons, the Illinois Supreme Court repudiated its conclusion in McDonald, calling it an “overstatement.”²¹⁴ “What is clear,” the court stated, “is that the limitation on penalties set forth in the second clause of article I, section 11, which focuses on the objective of rehabilitation, went beyond the framers’ understanding of the Eighth Amendment and is not synonymous with that provision.”²¹⁵ From time to time, the Illinois judiciary has issued contrary holdings that indicate a recurring, if occasional, willingness to consider and apply a more robust version of the proportionate-penalties clause—one that adheres to the 1970 Illinois constitution’s framers’ original intent to go beyond the federal Eighth Amendment. Soon after the 1970 clause took effect, Illinois courts did reduce a few sentences after considering rehabilitation.²¹⁶ In 1977, for example, in People v. Gibbs, the Illinois appellate court noted that “[n]ot only must the judge consider the rehabilitative or restorative factor, he must also act on it as an objective of his sentence.”²¹⁷ It went on to emphasize that while “[s]ome degree of discretion is permitted within the legislative parameters establishing our indeterminate system of sentencing[,] the judge may not resign to total retribution one who has a chance of future restoration to useful citizenship in the free society.”²¹⁸

In 2015, the Illinois appellate court struck down a juvenile’s 52-year sentence in People v. Gipson.²¹⁹ The court said that instead of restoring him to useful citizenship, such a sentence “seems more consistent with eliminating his utility as a citizen.”²²⁰ In addition to noting that the Illinois and federal provisions were not synonymous, the court added: “the proportionate-penalties clause demands consideration of the defendant’s character by sentencing a defendant with the objective of restoring the offender to useful citizenship, an objective that is much broader than defendant’s past conduct in committing the offense.”²²¹

And, in a recent line of cases involving young adults, ages eighteen to twenty (“emerging adults”), the courts in Illinois have acknowledged the more expansive text—and, thus, additional available remedies—under the proportionate-penalties clause.²²² To begin, the Illinois supreme court held that the Eighth Amendment does not protect emerging adults against excessive sentences.²²³ However, Illinois courts have left open the possibility that its own state constitution’s proportionate-penalties clause may indeed provide such protection.²²⁴

More recently, in People v. Carrasquillo, the Illinois appellate court remanded an indeterminate sentence of 200–600 years imposed on Mr. Carrasquillo, who was eighteen-years old at the time of the offense.225 In that case, Mr. Carrasquillo was convicted of murdering a police officer. Despite a record of rehabilitation, he had been denied parole nearly 30 times. Mr. Carrasquillo filed post-conviction petitions alleging that the sentencing court failed to consider his youth and attendant circumstances when it affirmed the sentence.²²⁶ The appellate court vacated the sentence and remanded the case for the trial court to consider Mr. Carrasquillo’s youth and attendant circumstances.227 Though the court did not specifically make its findings under the proportionate-penalties clause, it favorably quoted a dissenting opinion highlighting the broader purpose and text of the proportionate-penalties clause.²²⁸ In particular, the majority in Carrasquillo quoted a previous dissent, highlighting that the objective of restoring the defendant to useful citizenship “is much broader than the defendant’s past conduct in committing the offense.”²²⁹

As more recent case law demonstrates, the Illinois Supreme Court and appellate courts have not categorically rejected the applicability of a broader state proportionality clause, and its impact on sentencing. In Carrasquillo, for instance, the appellate court emphasized the distinction between the Eighth Amendment and the proportionate-penalties clause and noted that the proportionate-penalties clause has a broader objective.²³⁰

However, these holdings have been infrequent and seldom if ever producing a binding effect on the courts’ decisions in subsequent cases (and, in the case of emerging adults, are rather recent.). As a result, the Illinois courts continue to be everywhere and nowhere on the proportionate-penalties clause. Occasionally, they distinguish between the federal and state constitutions on the question of punishment; other times, they do not. Rarely do they engage with the state constitution’s clear requirement that criminal sanctions restore citizens to usefulness. Mostly, however, the judiciary has ignored the proportionate-penalties clause outside of the juvenile and emerging adult context.

V. TOWARDS A FORWARD-LOOKING CONSTITUTIONAL INTERPRETATION OF THE PROPORTIONATE-PENALTIES CLAUSE

The Illinois supreme court must give effect to the text and intent of the penological amendment under Article I, Section 11, as it has begun to in the context of juveniles and emerging adults. As the court has made clear, “when interpreting a constitution, a court must ‘ascertain and give effect to the intent of the framers of it and the citizens who have adopted it.’”²³¹ If given such effect, no longer could the Illinois courts ignore what the framers explicitly intended: a forward-looking amendment, as concerned with the offender’s successful return to the community in the future as it is with the offense that occurred in the past. Indeed, courts in Illinois should re-consider sentencing practices that have not been subjected to judicial review—the kinds of practices that ban any consideration of rehabilitation and possibility. Courts have in fact done just this when they have abolished life without parole for juveniles and beyond that to excessive sentences imposed on emerging adults.²³²

Anything short of that does not fulfill the text of the clause and intent of the framers, the convicted individuals in question, and to the people of Illinois, whose constitutional commitment has been largely ignored. If courts and legislatures were to take seriously the text and history of Illinois’s proportionate-penalties clause, they must consider the following steps:

First, expressly holding that the state’s proportionate-penalties clause is different and broader than the federal constitutional clause. As some courts have already done, Illinois courts and legislatures must acknowledge that the distinction between the Eighth Amendment and the proportionatepenalties clause is a significant one.²³³ As the court in People v. Clemons made clear, the proportionate-penalties clause provides additional limitations on penalties “beyond those afforded by the [E]ighth [A]mendment.”²³⁴ The proportionate-penalties clause “focuses on the objective of rehabilitation,”goes “beyond the framers’ understanding of the eighth amendment[,] and is not synonymous with that provision.”²³⁵

Moreover, as the Illinois supreme court expressly held that a young adult’s excessive sentencing claims are foreclosed under the Eighth Amendment, but the court left open the door for a young adult offender to make such claims under the proportionate-penalties clause.²³⁶

The Illinois supreme court must make clear—and lower courts should follow—the significant distinction between the two clauses. In so doing, it can help provide much needed clarity in this area of the law, for both courts and legislatures to follow.

Second, providing adequate recourse for rehabilitation. Understood as the framers did, the proportionate-penalties clause is and must be far-reaching. Sentencing law is surely encompassed by it; under the delegates’ own articulated vision,²³⁷ for instance, the clause compels legislatures and courts to consider probation and parole as viable alternatives to more severe punishments like incarceration.²³⁸ And when incarceration occurs, moreover, this clause would seem to require that confinement be substantially limited in duration. At the least, the original meaning and intent of Section 11 requires both sentencing and appellate courts to scrutinize the fit between a particular sentence, the person who receives it, and the goal of rehabilitation. Leonard Foster could not have been clearer in his explanations to the full convention before it, and later the people of Illinois adopted the clause which Foster had been so clear about.

Thus, a forward-looking clause would require courts to hold individualized sentencing hearings for each and every felony case. Mandatory sentences and those that require recidivist premiums, or minimum sentences, are not merely unfair; rather, they are unconstitutional, pursuant to a clause that obligates courts and legislatures to restore people to useful citizenship.²³⁹

In addition to requiring individualized sentencing hearings, the proportionate-penalties clause goes beyond that, in that it would prohibit excessive sentences, even those that are discretionary, where the court’s opportunity to review and undo such sentences cannot honestly be provided. It requires courts to re-sentence to a non-prison term in those cases where rehabilitation has been shown.

But the proportionate-penalties clause goes even further. In addition to individualized sentencing hearings, the rehabilitative mandate requires judicial review of sentences on the back-end, after they are imposed, to ensure their continued constitutionality. It is not enough for courts to consider reformation at the time of sentencing. In most cases, at least, a sentence is only constitutionally valid so long as it furthers the goal of rehabilitation, and once that goal is obtained, or when further incarceration undermines rather than promotes that goal, a prison sentence becomes constitutionally suspect. The proportionate-penalties clause, then, demands the opportunity and authority for courts to review sentences, and requires them to resentence to a non-prison term when rehabilitation has been either achieved or is no longer further by incarceration.

But the proportionate-penalties clause also addresses policies far beyond the type and duration of sentencing; it strikes at the very purpose of the criminal system itself. What of, for example, Leonard Foster’s intention that incarcerated people “learn how to do something more useful than make license plates”?²⁴⁰ Under his view, the proportionate-penalties clause could be fairly and accurately construed to require that prison conditions are aimed at facilitating prisoners’ return to useful citizenship. Might the clause require prison education? Job training? Counseling? Family visitation and regular contact? What about the re-entry system—might the clause require more and better structures to be put in place not only to monitor returning citizens, but also to meaningfully support their restoration into citizenship? The policies that potentially flow from an authentic application of the proportionatepenalties clause pose quite a contrast from the old policies of mass incarceration. It is not too late, even fifty-three years after the constitutional convention, to breathe life into the framers’ vision And even beyond the policies it may require, Illinois’s proportionatepenalties clause does something still greater. Recall that it was adopted in 1970, directly in the wake of years of urban unrest sparked by racism, segregation, and unequal treatment. Recall too that the clause’s main champion, Leonard Foster, was closely linked in adulthood to the very Chicago neighborhoods that were burned to the ground after the assassination of Rev. Dr. Martin Luther King. His response to that unrest—smoldering virtually in his backyard—was not to punish or exclude. Rather, his response was to remind his state that full citizenship should and must be the goal for everyone, even for those whose past actions have rent the social fabric. It was to insist that the state’s work to hold individuals accountable must be channeled towards reweaving that fabric even tighter than before.

CONCLUSION

The historical record seems clear that even in the wake of violence, the 1970 Illinois constitutional convention delegates insisted on seeing people as fellow citizens—as democratic equals whose participation in the body politic was best done on equal footing—and criminal penalties as mere deviations from the daily expectation of full, functioning citizenship. Properly understood, the framers’ vision is breathtakingly optimistic. It is a vision worth studying, we believe, and one that we hope will inspire a careful revisiting of the purposes of punishment in Illinois and beyond.