EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, December 18, 2017

Cyntoia Brown & the "51-To-Life" Project: Illinois

This is the fourteenth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Illinois treats juvenile homicide offenders better than Tennessee.  

According to Fair Sentencing of Youth:

In Illinois, children as young as 13 can be sentenced to LWOP.

At least 103 people in IL are serving LWOP sentences for crimes they were convicted of committing as children.

A Chicago Tribune article places that number at "about 80" and notes how these juvenile lifers are being given resentencing hearings after Miller v. Alabama.

That said, while juvenile homicide offenders in Illinois can still receive sentences of life without parole, the state legislature recently enacted 730 ILCS 5/5-4.5-105. It reads as follows:



(a) On or after the effective date of this amendatory Act of the 99th General Assembly, when a person commits an offense and the person is under 18 years of age at the time of the commission of the offense, the court, at the sentencing hearing conducted under Section 5-4-1, shall consider the following additional factors in mitigation in determining the appropriate sentence:

(1) the person's age, impetuosity, and level of maturity at the time of the offense, including the ability to consider risks and consequences of behavior, and the presence of cognitive or developmental disability, or both, if any;

(2) whether the person was subjected to outside pressure, including peer pressure, familial pressure, or negative influences;

(3) the person's family, home environment, educational and social background, including any history of parental neglect, physical abuse, or other childhood trauma;

(4) the person's potential for rehabilitation or evidence of rehabilitation, or both;

(5) the circumstances of the offense;

(6) the person's degree of participation and specific role in the offense, including the level of planning by the defendant before the offense;

(7) whether the person was able to meaningfully participate in his or her defense;

(8) the person's prior juvenile or criminal history; and

(9) any other information the court finds relevant and reliable, including an expression of remorse, if appropriate. However, if the person, on advice of counsel chooses not to make a statement, the court shall not consider a lack of an expression of remorse as an aggravating factor.

(b) Except as provided in subsection (c), the court may sentence the defendant to any disposition authorized for the class of the offense of which he or she was found guilty as described in Article 4.5 of this Code, and may, in its discretion, decline to impose any otherwise applicable sentencing enhancement based upon firearm possession, possession with personal discharge, or possession with personal discharge that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.

(c) Notwithstanding any other provision of law, if the defendant is convicted of first degree murder and would otherwise be subject to sentencing under clause (iii), (iv), (v), or (vii) of subparagraph (c) of paragraph (1) of subsection (a) of Section 5-8-1 of this Code based on the category of persons identified therein, the court shall impose a sentence of not less than 40 years of imprisonment. In addition, the court may, in its discretion, decline to impose the sentencing enhancements based upon the possession or use of a firearm during the commission of the offense included in subsection (d) of Section 5-8-1.


That's a lot to unpack, but here's the gist of it: If a juvenile commits homicide, the court shall consider mitigating factors beyond the age of the offender. So, how short of a sentence could the court impose under this Section? We don't know, but it is presumably less than 40 years.

That's because subsection (b) says that the sentence must not be less than 40 years if a juvenile is convicted of first-degree murder under subsections (iii), (iv), (v), or (vii) of subparagraph (c) of paragraph (1) of subsection (a) of Section 5-8-1 of this Code. Those subsections cover the killing of certain classes of victims, such as peace officers, firemen, Department of Corrections employees, EMTs, and community policing volunteers. Therefore, presumably courts can impose a sentence under 40 years for a juvenile convicted of murdering someone who is not a member of one of these classes of victims.

As a result, Illinois treats juvenile homicide offenders better than Tennessee, which only has the options of life without parole and life with the possibility of parole starting when the offender has served 51 years of her sentence.



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