Three strikes for Cook County prosecutors

Illinois’ prosecutor-initiated resentencing law was supposed to be a progressive policy win. So far, it’s yielded no winners.

Silence fell over the courtroom as Judge Brian Flaherty announced his decision: “I believe that the original sentence imposed by Judge Baker still advances the interest of justice,” he said to the handful of people gathered in Markham to hear the ruling. “Petition to resentence defendant to something less than 60 years in the Illinois Department of Corrections is denied.”

Larry Frazier’s brother let out a gasp from the gallery pews. “Don’t worry, it’s going to be alright,” he called out to Frazier as sheriff’s deputies led the then-63-year-old man out of the courtroom, his foot shackles jangling.

Later that October day, Frazier would be taken back to Dixon Correctional Center, 100 miles west of the south-suburban courthouse, to continue serving his sentence for a 1995 home invasion and burglary. He’d have a chance for release in 2023 with credits for good behavior.

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Flaherty’s ruling put an end to the Cook County State’s Attorney’s Office’s attempt to get Frazier resentenced using a law signed by Gov. J.B. Pritzker last year. The law, SB2129, went into effect in January and gives prosecutors an explicit power to ask judges to reconsider sentences “in the interests of justice.” Illinois is one of five states that has codified “prosecutor-initiated resentencing,” which has been billed as one way to right the wrongs of mass incarceration.

Illustration of a Black man with a bald head and short salt-and-pepper beard, looking straight ahead.

Illustration by Verónica Martínez

Larry Frazier, 64, is one of three people whom Cook County State’s Attorney Kim Foxx’s office motioned for resentencing under a new state law. None of the three were resentenced.

“l have no idea as to why the state’s attorney’s office chose my case for a sentence reduction hearing,” Frazier wrote to Injustice Watch the following week. “I was truly excited. l mean if you have the Cook County state’s attorney pushing for your release, you’ll more than likely have no one to oppose your release, was my thinking.”

Frazier’s case was one of three that Cook County State’s Attorney Kim Foxx’s office — which had lobbied for SB2129 — motioned back into court this year. But none of the three men serving time got new sentences.

In March, the state’s attorney’s office withdrew its motion to resentence 58-year-old Roland Reyes, who was convicted for a 2008 aggravated robbery, a week after filing it because Reyes was set to be released at the end of the month anyway. In May, Judge Stanley Sacks greeted prosecutors with sarcasm and consternation when they asked him to resentence Charles Miles, then 55, who is set to be released next year after serving time for two decade-old burglaries.

Flaherty seemed to take a more measured approach in considering the new request by prosecutors in Frazier’s case. Still, he said he wasn’t convinced Frazier deserved to get out of prison early, despite extensive evidence of his attempts at self-improvement, his age, and the state of his health. He cited Frazier’s perceived lack of remorse among the reasons he was declining to resentence him.

According to court records, a couple of weeks after getting out of prison in 1995 for a robbery conviction, Frazier walked into the home of a 62-year-old woman in Calumet Park unarmed and demanded money. The victim testified that Frazier found her gun and threatened her with it, and that she tried to disarm him by grabbing the barrel, shooting him in the process. Frazier maintained that he entered the woman’s home after he heard a scream and that she shot him when he offered help. The jury appeared to have been swayed when the state presented evidence of his fingerprints on a cookie tin filled with pennies found in the woman’s home. A now-retired judge imposed the maximum 30-year sentence for a Class X home invasion, increased by 30 more years because the victim was over the age of 60.

“When they first gave me a 60-year sentence, I thought about suicide,” Frazier told Injustice Watch in a recent phone call. He described himself as a “wild person” at the beginning of his incarceration and said he was using drugs and behaving aggressively.

“My mother and sister continued to show me love, and that helped change me,” he said. “That helped change the mindset, helped me put myself in the victim’s shoes. I guess I matured as a person.”

He started pursuing educational programs and eventually earned an associate’s degree in liberal studies from Lake Land College, along with a slew of certificates and distinctions for top grades and steady attendance. He donated some of his earnings from prison jobs to organizations helping low-income children.

After Flaherty’s October ruling, Frazier’s 90-year-old mother cried in the arms of her younger son outside the courtroom. At an earlier hearing, she  had addressed the court with a heartfelt monologue about what she perceived to be her own shortcomings as a mother and expressed hopes to see her son return home and join her at church. Frazier’s brother, Lorenza Lyles, said he didn’t feel the judge had given the resentencing request fair consideration.

“I believe he had something against (Larry),” Lyles said. “My brother, he gon’ be alright. I just hope he don’t lose the faith. … What he done was wrong, true enough, but he’s done the time and he’s more hurt than anyone else.”

After Foxx announced the resentencing initiative in March, her critics exploded in doomsday predictions about the wholesale release of “violent criminals” back into society. The reality of the first attempts at resentencing has been tamer beyond comparison. Foxx’s office created such strict criteria for the cases they’d consider taking to court that the pool of potentially eligible prisoners from Cook County ended up including fewer than a dozen people.

“We were very excited about rolling this out and also felt deeply the disappointment that these men had when their cases didn’t go through,” Foxx said in an interview with Injustice Watch. “To have their hopes raised only to have us not be able to move on this — that hurts.” But she said her staff is already vetting a new round of cases to take to court. “We still do believe in it, as disappointing as it felt in the immediate aftermath.”

Despite Foxx’s optimism, the failed resentencing petitions suggest that there may be a limit to what prosecutors can do to unwind the vise of harsh sentencing that characterized the state’s — and the country’s — criminal justice policy in the 1990s and early 2000s. The thorny politics of taking even a small step to change sentences for a tiny number of individuals underscores the magnitude of that challenge. And while prosecutor-initiated resentencing laws have been marketed as a tool to contravene mass incarceration, the limitations Foxx and other state’s attorneys have created for themselves in using them don’t leave much room for hope that they could meaningfully contribute to reshaping the nation’s prison population.

The origins of prosecutor-initiated resentencing

The concept of prosecutor-initiated resentencing originated in California with the advocacy efforts of For the People, a nonprofit organization founded by former San Francisco prosecutor Hillary Blout. In 2018, the California legislature passed the first law of its kind in the nation. The state also funded an $18 million, three-year pilot program in nine geographically and demographically diverse counties to make sure prosecutors’ offices (as well as public defenders and community groups, which can bring cases for resentencing consideration to district attorneys in California) have the resources to give the program a true try. Money was also set aside to hire an independent research group to monitor and evaluate the pilot program.

Since the passage of California’s law, For the People has lobbied for similar legislation nationwide. But none of the other states that passed versions of it, including Illinois, has allocated funding for resentencing initiatives. This has left individual county prosecutors’ offices on their own to find resources to reexamine old cases for resentencing. A spokesperson for For the People told Injustice Watch in an email that more than 500 people across the country have been released from prison through the use of prosecutor-initiated resentencing laws, nearly 300 of them in California. However, no state tracks its counties’ use of these powers, making it difficult to verify these numbers or to analyze the demographics and backgrounds of the people who have been released.

Illinois’ SB2129 doesn’t set parameters for what type of cases are eligible for resentencing, leaving full discretion to state’s attorneys to consider anyone sentenced from their respective counties. The law also gives judges explicit permission to consider factors such as the person’s “disciplinary record and record of rehabilitation while incarcerated” and “evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate’s risk for future violence.”

A figure stands in front of an arcade-style claw game filled with people. At the back is a door marked DOC. On the floor is a folder marked

Illustration by Verónica Martínez

According to an Injustice Watch analysis of prison population data, out of more than 12,000 people who were sentenced from Cook County, there were just 333 who fit the parameters for resentencing set by the state’s attorney’s office.

So far, the Cook County state’s attorney’s office is the only one Injustice Watch could identify that has brought one of these motions to court. When it rolled out its resentencing initiative in March, Foxx’s office said it would “prioritize” people sentenced from Cook County who weren’t convicted of homicide or sex offenses (this is among For the People’s recommendations for how prosecutors’ offices should begin resentencing attempts). That pool was further narrowed to: those who’ve served at least 10 years for a drug offense, theft, robbery, or burglary; those 65 or older who’ve served at least 20 years; or those who were under 21 at the time of their offense and have served at least 15 years.

According to an Injustice Watch analysis of prison population data, out of more than 12,000 people who were sentenced from Cook County, there were just 333 who fit these parameters.

But the pool of people who were potentially eligible for resentencing was actually even smaller. Foxx’s office also noted that they would not consider people who hadn’t yet served the minimum sentence for their offense or who’d been given a mandatory sentence. Because Illinois Department of Corrections data does not specify whether an individual is serving a mandatory sentence or what the minimum sentence for their conviction is, Injustice Watch could not factor those limitations into its analysis.

Foxx’s office said that it would also take into account factors like “prior convictions, disciplinary record while incarcerated, programming participation, and record of rehabilitation while incarcerated,” narrowing the pool even further.

Foxx’s staff did much of the initial work to identify candidates for resentencing months before the new law went into effect, internal records obtained by Injustice Watch show. By the end of June 2021, while SB2129 was still awaiting the governor’s signature, her team had narrowed the pool of potential candidates for resentencing to just 11 individuals, according to internal emails. After weeding out more people based on individual case characteristics, Foxx’s office wound up with Reyes, Miles, and Frazier as the subjects of their pilot motions to resentence.

That the state’s experiment with resentencing started with just three of Illinois’ nearly 28,000 incarcerated people is not out of line with prosecutors’ initial forays into using these new powers elsewhere. In California, just eight cases were brought to court in the first six months of their nine-county pilot program, according to a RAND Corp. review, out of more than 95,000 people in the state’s prisons.

Foxx told Injustice Watch that picking people with parole dates looming was a strategic decision meant to make resentencing “palatable for the judiciary.” In anticipation of “some trepidation and hesitation” among judges about being the first to give someone a new sentence and early release from prison, her office planned to connect resentenced people with Precious Blood Ministry of Reconciliation, a Back of the Yards-based nonprofit that works to reconnect people exiting prisons with their communities. Confident the social services would be a key to successful reentry, Foxx said they could then show judges “what can happen for the person who’s 10 years out or five years out,” and in the future take chances asking for resentencing for those who have a lot more time left to serve.

At the same time, Foxx said “determining friendly judges for the initiative was not part of the calculus.” They focused instead on the characteristics of the candidates and the strength of the case that could be made on their behalf. Yet the judges’ attitudes toward the very idea of resentencing seemed to play a big role in both Miles’ and Frazier’s cases.

Judges appear skeptical of resentencing law

Associate Judge Stanley Sacks originally sentenced Miles to a combined 25 years in prison for his 2011 and 2012 burglary convictions. Sacks, who has been on the bench since 1988, was once disciplined by the chief judge over his courtroom demeanor and reprimanded by the appellate court for comments that appeared “intended to malign an entire class of criminal defendants.” During a preliminary hearing on the resentencing motion, he grilled Assistant State’s Attorney Nancy Adduci about why she was asking him to reconsider his decisions. “I sentenced Miles, so I know what the cases were,” Sacks said. “What would I hear at a (new) sentencing hearing?”

Adduci, the head of the state’s attorney’s Conviction Integrity Unit, explained that the resentencing hearing would be an opportunity for Sacks to consider the efforts Miles has made to rehabilitate. The judge interrupted her, asking whether SB2129 is even constitutional, given the governor’s prerogative to grant clemency. The question mirrored arguments raised on the eve of the hearing by former Cook County prosecutor Alan Spellberg in a letter published by CWB Chicago, a North Side-focused crime blog frequently critical of Foxx and local attempts at criminal legal reforms.

Adduci began explaining that constitutionality wasn’t an issue since the law is “really the common-law concept of revestment codified.” Though very rarely used, Illinois’ “revestment doctrine” allows a trial judge to issue new rulings in a previously decided case if both the prosecution and defense agree that it merits a new look. But Sacks wasn’t convinced. “Isn’t this something for the governor to do, reduce the sentence if the guy is in custody under a valid sentence affirmed on appeal?” he asked.

“That’s one avenue, but that’s mercy,” Adduci said. “There is also justice, and it’s always been the purview of the courts to sentence.” She pointed out that at the time Sacks initially sentenced Miles, he’d made the just legal decision.

“So what’s unfair now? What changed?” the judge wanted to know.

“People change,” Adduci replied. “Circumstances change.” She added that by getting out early Miles could help the state “understand what people need when they reenter society.” Her office viewed resentencing as a potential incentive to persuade Miles to collaborate with them, she said.

“I’ll listen to what you have to say,” Sacks replied. “I’m not a social worker, however. Your boss might be, but I’m not.”

Ultimately Sacks rejected Adduci’s motion to resentence Miles in what the Chicago Tribune described as a “lengthy and caustic tirade.”

The hearings about Frazier’s case were much less contentious. Flaherty, a two-decade veteran of the bench who’d previously worked in the public defender’s office and for the Cook County sheriff, didn’t badger Adduci about the constitutionality of SB2129. But he was blunt that he didn’t consider the evidence of Frazier’s rehabilitation compelling enough to revise the original sentence. He quoted the state’s attorney’s office’s own opposition to Frazier’s most recent clemency petition, which they submitted to the governor in December 2020, less than a year before selecting him for the resentencing pilot. “Rehabilitation requires not only accountability but also remorse. Petitioner expresses no remorse,” prosecutors wrote of Frazier.

The victim in Frazier’s case, now in her 90s, chose not to come to court to testify again. But she told the state’s attorney’s office that “even though she understands the reasoning behind the construct of resentencing, she feels the sentence should remain the way it was,” Adduci said in court.

As he announced his ruling, Flaherty read from the woman’s original victim impact statement, in which she spoke about how the home invasion made her feel permanently unsafe, forced her to retire early, and caused her heart problems.

Asked to reflect on the judges’ denials in the two cases, Foxx said she was disappointed in Sacks’ “sarcasm and the treatment of Mr. Miles. Part of this (resentencing initiative) is recognizing the humanity of the people who’ve gone through this process.” But she said that the judge’s questions about the constitutionality of the statute were to be expected. “This was basically the court of first impression,” she said, adding that the same questions have come up in other states. “We certainly believe that we have the authority” to ask for resentencing, Foxx said.

A portion of SB2129 explicitly states that prosecutors’ motions to resentence and judges granting new sentences in no way “limit the power of the Governor under the Constitution to grant a reprieve, commutation of sentence, or pardon.” Legal experts interviewed by Injustice Watch agreed that the Illinois law doesn’t violate separation of powers.

As for Flaherty’s reaction to Frazier’s case, Foxx said her office’s opposition to his last clemency petition shouldn’t have been used against him now. “We come from a system that has largely been rooted in punitiveness,” she said. “There have been cases where I have been presented with a review for clemency where a couple of years ago I was like ‘No, I don’t feel comfortable.’ But we have evolved.”

‘Every one of them in my mind should have just been resentenced’

Despite the disappointing rollout, Foxx said she’s committed to continuing the resentencing initiative, though she wouldn’t say when her office would motion a new round of cases into court or how they might change the parameters for considering candidates. A spokesperson for the office said the team tasked with resentencing is in the process of expanding from two to three full-time staff members, and has one part-timer. However, last month Senior Policy Advisor Arienne Jones, who had lobbied for SB2129 in Springfield and was one of the faces of the initiative in court, resigned from the office. Adduci, meanwhile, has come under fire for her alleged mishandling of evidence in cases tied to the 2011 murder of a Chicago police officer. Foxx’s spokesperson did not give a reason for Jones’ resignation and said there are no planned changes to Adduci’s leadership of the Conviction Integrity Unit and oversight of the resentencing initiative.

Meanwhile, some of Foxx’s allies say that bolder moves are needed if her new resentencing powers are to make a dent in undoing the draconian prison terms of decades past. And grappling with that will probably require considering people sentenced for the most serious crimes.

While the term “mass incarceration” tends to evoke large numbers of people serving long sentences for low-level drug crimes, the demographic realities of Illinois’ prison population are quite different. Just 4% of the people incarcerated from Cook County at the end of 2021 were doing time for drug-related convictions. Meanwhile, 40% were incarcerated for homicide cases; most of them are first-degree murder convictions and most of their sentences are 45 years or longer.

About 1,000 prisoners from Cook County serving 45 years to life aren’t eligible to earn good time credit, because they were sentenced after the state passed its “truth-in-sentencing” laws in 1998. Since the passage of those laws, people convicted of certain serious crimes have had limited or no ability to earn reductions to their prison terms through good behavior or participating in rehabilitative or educational programs.

Because of truth-in-sentencing, “there’s a glut of people who are serving twice the amount of years for the same offenses, and (the difference is) literally just the date they committed the offense,” said Jobi Cates, executive director of Restore Justice, a nonprofit that advocates for sentencing reform. “That’s fundamentally unfair.”

David Kelly, executive director of Precious Blood Ministry of Reconciliation, echoed this concern. He reviewed the initial batch of candidates Foxx’s team considered for resentencing and said he thought they were playing it too safe.

“Every one of them in my mind should have just been resentenced without any kind of deep dive, because some of them were 64 years old. Some of them had large sentences for drug-related crimes,” Kelly said. “I said, ‘How about taking a look at someone who was 18 years old and got 40 years and has done 20 years and is no longer a threat?’ But that wasn’t this project; they weren’t interested.”

Kelly said that many of the leaders at Precious Blood are people who were incarcerated for decades for serious violent crimes and came out highly committed to improving their own and other people’s lives. “I see firsthand the value they bring to this community. Putting that person on the block changes the dynamic of the block for so much better.”

He said that he understands the thorny politics of rolling out the resentencing initiative and will continue to work with Foxx’s office to identify and support candidates for resentencing. “I just really would like it to be expanded, widen the net,” he said.

Davon Clark for Injustice Watch

Cook County State’s Attorney Kim Foxx speaks at an Injustice Watch event about inequities in the Cook County court system, Aug. 31, 2022.

Another challenge to extending resentencing opportunities to a meaningful segment of the state’s long-term prison population is the fact that only prosecutors are currently empowered by the law to bring these cases back into court.

“Prosecutors are elected people and it’s difficult for them as an entity to make these bolder decisions,” said Shobha Mahadev, a law professor at Northwestern University’s Children and Family Justice Center. “They’re incentivized to do something that’s more politically OK, less risky, like low-level offenses or something they can label as nonviolent.” Mahadev added that prosecutors, especially ones who don’t have outside groups assisting in vetting candidates for resentencing like Foxx’s office has, aren’t in the best position to assess a person’s rehabilitation and know all the possible mitigating factors that would make someone a good candidate.

Only two other prosecutors’ offices in Illinois even mention SB2129 on their websites. The Rock Island County State’s Attorney’s Office did not respond to requests for comment about their use of the new law. A spokesperson for Kane County State’s Attorney Jamie Mosser (who, unlike Foxx, announced she would consider reviewing felony murder cases) told Injustice Watch her office has received two applications for resentencing, but that only one might be a viable case to take to court. The spokesperson cited a lack of funds as the biggest hurdle to using the new law.

Mahadev and Cates both serve on the state’s resentencing task force, which was created in tandem with the passage of SB2129 to make recommendations for resentencing policies that go beyond the prosecutor-initiated approach. The task force is set to release a final report next month. Mahadev predicted that any resentencing policy that’s reliant on prosecutors “will change with the whims of the prosecutors who get elected.”

A dramatic example of such a change played out in California just in the past year. Under now-recalled San Francisco District Attorney Chesa Boudin, the office had a team dedicated to implementing the state’s resentencing law. Boudin was even willing to ask for resentencing in homicide cases. His successor, however, fired or demoted staff on the resentencing team after taking office in July.

A draft report from the resentencing task force recommends that the law be expanded to allow incarcerated people and defense lawyers to petition the court directly to have their cases reviewed. And Foxx agrees that prosecutors shouldn’t be the only ones who can initiate resentencing requests. Prosecutors “are not the answer for mass incarceration,” she said, “but we can use our platform to move the needle, start the conversation.” She added that judges should get more training to understand the purpose of the law. The Office of Cook County Chief Judge Tim Evans did not respond to Injustice Watch’s questions about whether it plans to provide such training.

For now, Foxx’s office has created an online form for incarcerated people and their advocates to submit their cases to her office for resentencing consideration. As of late November, they had received requests on behalf of 220 incarcerated people, according to records obtained by Injustice Watch. A spokesperson for Foxx said the submissions “are in the process of being cataloged,” but would not elaborate further.

Even if SB2129 were expanded, Cates said, a law that focuses on changing individual sentences one by one will never undo the combined impact of truth-in-sentencing laws and the state’s elimination of traditional parole in 1978. Together, those laws led the prison population to balloon in the 1990s and early 2000s, with more people locked up for longer sentences and no meaningful opportunity to exit. Although the state legislature has taken some steps in recent years to undo some of the harsh sentencing laws, most of these reforms have not been retroactive.

“Part of the problem with this law is it’s a case-by-case approach to a mass problem,” she said.

‘You’ve created a monster’

Ultimately, Larry Frazier’s release date could come even sooner than the Department of Corrections’ projection of September 2023. Since he was sentenced for a crime committed before truth-in-sentencing went into effect, he’s been able to earn day-for-day good time credit off his 60-year sentence. He estimates he could be out as soon as this spring, he told Injustice Watch, if he’s able to continue participating in classes at Dixon. After his release, Frazier said he wants to advocate for educational opportunities for incarcerated people and get into house flipping using the skills he’s learned from construction classes. He said he will also focus on his family and his health.

In 2017, a botched operation on an artery that was damaged when the victim in his case shot Frazier left him with a third-degree burn on his back, which led to a severe bacterial infection and permanent nerve damage, according to court records. Recently, Frazier won a large settlement against prison health care providers in a federal medical malpractice lawsuit. Neither he nor his lawyers would disclose the settlement amount to Injustice Watch.

Frazier said he felt like participating in Cook County’s pilot resentencing initiative was “a big waste of time,” because the judge hearing the motion wasn’t new to the case and therefore, in his view, couldn’t be impartial. He said resentencing motions should go to judges with no prior relationship to the cases.

“Going through this whole process was extremely stressful and very excruciating to me, because of my mother,” Frazier wrote. “l did not want to put her through that court process again. l did not want her getting her hopes up for me only to have them crushed. It was very painful to me to see her cringe when the judge denied my petition and release.”

Frazier also felt that Adduci’s recitation of all the aggravating factors in his case — the details of the criminal indictment, the perspective of the victim, his prior criminal background — overshadowed the information about how he’s worked to change himself for the better over the past 27 years.

“It was difficult to hear,” he said. “To rehash that puts the person in a bad light. It’s like you’re getting tried over again.”

Frazier pointed out that he’s done more time than some people convicted of murder, but he also described going to prison as “a blessing in disguise.”

“l was a criminal when l was out there. l wasn’t violent, but l was a criminal all the same, existing just to get high on a daily basis. l got what I deserved,” he said. “But I’ve served my time, and I’ve bettered myself as a person.”

He sees the value of the resentencing law, he said. But, like Cates, he said the real problem is the lack of parole in Illinois. “If you give a person all that time, you need to give them an opportunity to know they can possibly come out,” he said. “You give them all that time and throw away the key and eliminate the possibility to come out, then you’ve created a monster.”

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