Illinois lawmakers last year moved to crack down on acts of violence committed in a place of worship. The legislation, signed by Governor JB Pritzker, asks judges to increase the penalty for murder and assault in a church or against someone engaged in religious practice.
As Bradley University Political Science Professor Craig Curtis explains to WCBU, the measure comes at a time when lawmakers are moving away from mandating harsher criminal punishments — and does little to protect congregations.
This interview has been edited for clarity.
Talk about the history of mandatory minimum sentences and penalty enhancements and why there’s been a movement away from those measures.
There has been since really the late 1980s of movement to dramatically increase the severity and the frequency with which the criminal sanction has been administered. During that time, we have put 1.2 million more people in jails and prisons and probably added 3 or 4 million more people to the roles of those being supervised with probation, parole or electronic monitoring. The impact of this has been a dramatic increase overall on the budgetary impact — and an impact, especially in poor neighborhoods, largely as a result of the War on Drugs.
There's a growing research movement in political science and sociology focusing on something called “mass incarceration.” And it's been widely criticized. It's one of those rare things where conservatives and liberals can agree on a set of policies — not for the same reasons, but they agree on the same things to do. So liberals are saying, “Look, we've been putting people in jail for far too long, does work. It's causing harm.” Conservatives are saying, “Yeah, it doesn't seem to be working that well. But most importantly, it's costing us billions of dollars that we would like to be able to spend somewhere else.”
Does explicitly saying “you can’t commit acts of violence in a church” deter people from doing it?
No. There are two reasons. One is that deterrence as a basis for making policy in criminal justice is poorly adapted to the task for which it's commonly used, which is to try to stop crime. Most of the time when a legislature is presented with the problem, it has a limited toolbox. And one of the things it can do is to enhance penalties or to add an aggravating factor or to upgrade the charge, which is what they've done here.
It's easy to do hard to implement for a variety of reasons. But most importantly, it doesn't change anybody's behavior. Deterrence assumes that offenders are rational beings — that they contemplate what it is they're going to do, what it's going to do for them, what potential harm might result, how likely that harm is to result. And most of the people who walk into a church with a gun intending to shoot somebody aren't thinking about those things.
They're thinking about entirely something else. They're not thinking about the likelihood of getting punished. They're not thinking about how long they'll spend in jail. They're not thinking about any of that. And indeed, many of them take that as part of the cost of doing business. Dylann Roof, for example, really made no effort to get away. I mean, he wanted to publicize this. He was trying to start a race war, which has nothing whatsoever to do with whether he's going to prison.
So the theory underlining these changes is just flawed. Fundamentally, it won't work. It won't change anybody's behavior. If we assume the theory was correct, it's still not going to change anybody's behavior because people have to know about it first. And not many people who are going to be carrying a gun with a large capacity magazine to a church to kill people will have paid attention to any of the news stories about this.
You mentioned Dylann Roof. Do you think lawmakers are a little reactionary to high profile tragedies?
No, I think they're a lot reactionary. I can point to a whole bunch of laws that were created in the aftermath of some major crisis or news story, which had widespread support and which do nothing to alleviate the problem that created the crisis or new story in the beginning. And some of these are a little controversial to talk about, like Megan's Laws. They were created in the aftermath of a horrific rape and murder of a small child by someone who was just gotten out of prison for doing the exact same thing.
Unfortunately, these laws don't change the dynamic. They don't make these crimes any less likely. They do create an awful lot of secondary problems — side effects, if you will. There are towns where literally a sex offender cannot find a single place to live. And there are situations where people who have a common name are mistaken for sex offenders.
One of the criticisms of measures like “Megan’s Law” is that they sometimes catch people they weren’t designed to catch — and judges don’t always have the flexibility to make decisions about sentencing.
It takes away judicial discretion, certainly. I don't think that's a real big issue here. There are really four things that it does and they're all related to committing crimes against someone who's involved in a religious activity — they’re at a church, they’re are at some place of sanctuary. I don't think you have too much worry about that.
Now, there are some potential problems for prosecutors in this law. Two of the provisions enhance punishments for aggravated battery — by enhancing the nature of the offense from assault and battery to aggravated battery — and there is an expansion of the unlawful use of a firearm law. Both of them have what's known in the laws of scienter requirement, meaning that the prosecution has to prove a particular intent. So in the case of the aggravated battery provision, the prosecution will have to show that they intended to hurt someone because they were involved in a religious and religious activity. That's hard to do.
So you have another element of the crime that has to be shown to the jury and it may not always be as easy to prove this beyond a reasonable doubt, as one might think.
You mentioned the judicial discretion. I think a lot of folks would argue that murder is murder is murder is murder — and the judge should already have the ability to make decisions based on the specific context of that case. Can you talk about that a little bit more?
My own personal opinion is that the statute really doesn't do a lot in terms of enhancing the judges ability to sit in someone who has engaged in a horrendous crime. Because you're right, most of the things that judges use as aggravating factors are already going to be present.
When you walk into a building and start shooting people, it's pretty easy to say you had to think about doing that. You don't just walked by a church and say, “Oh yeah, I've got a gun, let's go kill somebody.” You had to have thought about that ahead of time. That's premeditation. Typically, more than one person was injured. That's oftentimes an aggravating factor.
I can't think of very many situations where this one thing would enable the police to punish more severely than they might have otherwise. But it does respond to a national trend. And it's one more weapon that the prosecution can use to show an aggravating factor and argue for an enhanced sentence.
Is there value from a public perspective in feeling like your legislators are taking steps to protect you in light of national tragedies?
Well, there's value to the politicians who have voted or sponsored legislation like this — go out on the campaign trail and say, "Hey, look, I proposed this legislation or voted for this legislation, it makes you safer in your churches.” I mean, it really doesn't. It was intended to and that's what they meant to do. In practical terms, it really won't enhance the safety.
If you're in a church situation and you're worried about danger to your congregation — and a lot of churches are indeed worried about this and taking steps to enhance security. Some are even putting metal detectors in, they have armed guards in the congregation, people who have been trained -- a lot of churches are doing stuff like this. This law is not going to make you relax, it's not going to make you any safer. But people ask for the legislature to take action. And they did and they get to say “You asked and we did it.” It all sounds good and looks good.
Does this legislation do anything to make churches safer?
The people who engage in crimes with guns are already punished very severely in the United States in general — and in Illinois, as well. This is not going to change that. People who commit crimes with guns in churches are still going to prison. People who kill people in churches are still going to go to prison for a long period of time. People who shoot someone because of their religious beliefs are still going to be prosecuted severely.
I’m not saying it's a bad piece of legislation, but it's not going to make people safer in churches. Churches taking actions themselves are going to make churches safer.