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Bail abolition is just the tip of the iceberg

A deep dive into Illinois’s sweeping new criminal justice reform law

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PHOTO BY BROOKE HUMMER / PHOTO ILLUSTRATION BY AMBER HUFF
  • Photo by Brooke Hummer / Photo Illustration by Amber Huff

On February 22, Governor J.B. Pritzker signed HB3653 (also known as the Safety, Accountability, Fairness and Equity – Today or SAFE-T Act) into law. The massive criminal justice reform bill sprawls across 764 pages and makes changes to some three dozen existing Illinois laws as well as introduces new ones. It's been decried as an "anti-police" bill by law enforcement groups, and the president of Chicago's police officer union called it "nightmare legislation" that was intended as an "attack on law enforcement in this state." But the Black Caucus-backed measure had input from hundreds of community organizations, researchers, advocates, and law enforcement groups in Illinois over several years. It amounts to the most significant course correction on criminal justice policies and practices that exacerbate racial and economic inequality in the state.

You may have heard that the bill abolished cash bail, but that's just the tip of the iceberg. Here is a digest of the important changes to state law that are included in HB3653, which focused on reforming elements of policing, pretrial procedures, sentencing, and incarceration as well as prison gerrymandering and crime victims' rights. Most of the provisions in the bill take effect on July 1, 2021, unless otherwise noted.

POLICING

Use of force

The law paves the way for the creation of statewide use-of-force standards for all law enforcement agencies.

  • The legal standards to justify use of force are tightened; officers are required to consider the "totality of the circumstances" before using force, including not just the behavior of the person they are targeting, but what's happening around them.
  • Officers also have to identify themselves before using force and warn that they are about to use deadly force.
  • Officers cannot use deadly force against a fleeing person. Deadly force against a person trying to escape can only be used if that person is likely to cause great bodily harm to someone else. Additional requirements to justify use of deadly force (such as shooting) against a fleeing person can be found on page 283 of the act.
  • Officers cannot use deadly force against anyone suspected of committing a property offense unless it's terrorism or the suspect poses an imminent threat of death to someone.
  • Any above-the-shoulder restraints (like chokeholds) that might cause asphyxiation are banned unless deadly force is justified.
  • Use of pepper spray and other chemical agents without adequate dispersal orders and time to disperse is banned.
  • Officers cannot use force as punishment or retaliation.
  • Rubber bullets and other nonlethal projectiles cannot be fired at anyone's head, pelvis, or back, and cannot be discharged randomly into a crowd.
  • Officers will now be required to render aid to those they injure and (though the law isn't very explicit on this point) possibly also injured people they encounter while on duty.
  • Officers will also now have a duty to intervene to prevent a colleague from using unauthorized force and will be protected from retaliation or discipline for such intervention.

    Warrants

    The rules around the use of no-knock search warrants are tightened, including requiring the wearing of body cameras, and the development of plans to protect children and other vulnerable people during the search.

    Body cams

    All law enforcement agencies statewide are required to equip officers with body cameras by 2025.

    • The state will give funding preference for purchasing body cams and training officers in their use to agencies in compliance with the body camera implementation schedule.

    Qualified immunity

    The state has created the "Task Force on Constitutional Rights and Remedies" which has until May 1, 2021, to research and generate a report on qualified immunity for law enforcement officers in the state. The state's qualified immunity standards currently shield officers from lawsuits and financial liability for misconduct on the job.

    Officer training

    There will now be minimum standards for law enforcement training curricula for mental health screenings, crisis intervention, implicit bias, the Fourth Amendment (protecting people from unreasonable search and seizure), use of force, de-escalation, and racial/ethnic sensitivity.

    Officer decertification

    The Illinois Law Enforcement Training and Standards Board will now have the power to suspend and limit (in addition to revoking) any officer's certification.

    A new Illinois Law Enforcement Certification Review Panel will be created to make recommendations on the decertification of officers. Databases to track officer certification status and investigations will be created. Law enforcement agencies will be obligated to check the existing (and now expanded) Officer Professional Conduct Database before hiring an officer.

    The list of misdemeanor offenses for which a law enforcement officer can be decertified is expanded to include 20 new offenses (like domestic battery, transmission of obscene messages, and solicitation to meet a child). The types of conduct that can lead to both automatic and discretionary officer decertification is expanded.

    The criminal offense of "law enforcement misconduct" is created and includes:

    • knowingly failing to turn on a body camera, or turning it off when it should be on
    • knowingly misrepresenting facts when writing a police report or investigating another employee's conduct

    The Freedom of Information Act will not apply to officer misconduct records in the Officer Professional Conduct Database. Officer misconduct records about state police officers and all other law enforcement officers in the state (held by the Law Enforcement Training and Standards Board) will not be subject to FOIA. However, the records will still be open to FOIA from the local law enforcement agencies that supply them to these bodies.

    Deliberations for decisions by the state's Certification Review Panel, State Police Merit Board, and Law Enforcement Training and Standards Board (which decide on decertifying law enforcement officers) will not be subject to the Open Meetings Act when these bodies go into private session. All votes on decertification by these bodies have to be conducted during the public portion of the meeting.

    State police

    The Illinois State Police will now be required to:

    • annually publish law enforcement agencies' monthly crime statistics
    • regularly submit use-of-force information to the FBI's National Use-of-Force Database
    • submit reports on incidents involving people experiencing a mental health crisis
    • submit use-of-force incident reports, including discharging guns even if no one is killed as a result
    • make annual reports to the governor and state legislature about officer termination and discipline

    There are new grounds for automatic and discretionary termination of state police officers that mirror the standards set for other law enforcement. The State Police Merit Board is required to report to the Officer Professional Conduct Database. This will help eliminate loopholes that used to allow former state police officers to get jobs at other state law enforcement agencies without being tracked.

    Police misconduct complaints

    No one will be required to submit an affidavit when filing a complaint against any officer in the state. State law no longer requires law enforcement agencies to inform officers of the names of the people accusing them of misconduct before an administrative hearing begins. The state Law Enforcement Training and Standards Board—which considers officer decertification—is required to create an anonymous complaint process. The requirements to inform officers of the identity of those assigned to investigate them is removed.

    Retaliation against whistleblowers for reporting improper law enforcement officer conduct is prohibited.

    All police misconduct records (both public and nonpublic) have to be permanently retained by law enforcement agencies.

    Deflection

    State funding will now be available for the development of deflection co-responder programs, allowing nonpolice responses (including by EMS and community-based behavioral health providers) to crisis and noncrisis situations involving mental health and substance abuse. Deflection programs are designed to steer people with drug or mental health issues away from the criminal justice system. Funding for communities disproportionately impacted by the War on Drugs or disproportionately impacted by the lack of behavioral health services will be prioritized.

    The Illinois Criminal Justice Information Authority (ICJIA) can now fund more non-law enforcement first responder programs that use behavioral health professionals as alternatives to police responders.

    Civil rights violations

    The Attorney General's office will now be able to investigate and bring lawsuits in state court based on police departments' pattern and practice of violations of the Illinois Civil Rights Act. Previously the AG's office could only investigate patterns and practices of discrimination under the Illinois Human Rights Act, which narrowly defines the types of discrimination public officials aren't allowed to engage in.

    Military equipment

    The Illinois State Police, county sheriff’s departments, and local police departments will now be banned from requesting or receiving certain military equipment, such as armored vehicles, weaponized aircraft, high-caliber firearms, grenade launchers, and bayonets decommissioned by the armed forces. Requests for allowable weapons have to be announced on agencies' websites within 14 days of being made.

    PHOTO BY BROOKE HUMMER / PHOTO ILLUSTRATION BY AMBER HUFF
    • Photo by Brooke Hummer / Photo Illustration by Amber Huff

    PRETRIAL

    (An exhaustive explainer of the Pretrial Fairness Act has been compiled by the Coalition to End Money Bond and can be found on their website endmoneybond.org.)

    Arrest

    Arrested people must be able to make three phone calls within three hours of arriving at a law enforcement facility. People also have the right to retrieve phone numbers saved on their phones.

    Diversion

    Instead of arrest, law enforcement officers will now have the ability to issue citations and release people charged with Class B and C misdemeanors (which include common offenses like criminal trespass to land and disorderly conduct) unless the person is a threat to public safety or has "obvious medical or mental health needs."

    Detention

    Cash bail is abolished beginning January 1, 2023.

    • Defendants will now be released to await trial (with possible conditions such as curfew or house arrest).
    • Pretrial incarceration is allowed for defendants charged with certain qualifying offenses or are found to be a real and present threat to others or a serious flight risk. People will not be able to pay their way out of mandated pretrial detention.
    • Algorithmic risk assessment tools cannot be the sole basis for detaining a defendant pretrial or setting conditions for pretrial release. Defendants also have the right to challenge the validity of the scores.
    • Judges must review pretrial detention conditions every 60 days.

    The state will now collect and publish data on the outcomes of bond hearings and defendants' bond statuses in every county jail.

    People will receive custodial credit (or time served) for the days they spent on electronic monitoring pretrial.

    Any person ordered to pretrial detention at home (with or without an electronic ankle bracelet) must have freedom of movement spread out over no fewer than two days per week. This will allow people to take care of basic needs such as grocery shopping, work, education, health care, and attending religious services. To be considered guilty of violating the terms of electronic monitoring (i.e. escape), a person has to be in violation for at least 48 hours and not based on the technical malfunction of the monitoring device. Approving changes to a person's residence also can't be unreasonably withheld.

    Judges will now have discretion about whether to issue an arrest warrant when a defendant misses a court date. The process of determining violations of pretrial release conditions will be standardized. Until now, people on electronic monitoring or other forms of court supervision could be thrown in jail to await trial for violations as varied as being late to court, having a positive drug test, or being arrested for another crime. These determinations were subject to individual judges' whims without a chance for defendants to contest them or due process.

    PHOTO ILLUSTRATION BY AMBER HUFF
    • Photo Illustration by Amber Huff

    SENTENCING

    Habitual criminals

    Convictions that occur when a person is between the ages of 18 and 21 will no longer count toward defining someone as a "habitual criminal" during sentencing. This makes the law more deferential to established science on brain and cognitive development. Until now, people experienced severe escalations in their sentences due to convictions that might have happened decades earlier in their lives.

    Mandatory minimums

    Judges regain discretion over sentencing in some cases—they'll be able to ignore mandatory minimum sentences in favor of probation, or other lesser terms if:

    • the conviction is for drug offenses, shoplifting, or driving on a license revoked due to unpaid fines
    • the judge decides that the defendant doesn't pose a risk to public safety
    • it's in the interest of justice to impose a lesser sentence than the mandatory minimum in prison; judges must justify their reasoning on the record

    The state's three-strikes law is narrowed: The types of convictions that will count toward a person's "three strikes" under Illinois's mandatory sentencing rules (which require judges to impose a life sentence upon the third conviction for one of a broad array of offenses) will no longer include drug crimes. Only so-called forcible felonies will be tallied as "strikes."

    Sentencing credits (i.e. when convicted people receive time off of their sentence)

    What counts toward "time served" will be expanded beyond days in jail pretrial and electronic monitoring to include home detention and curfew that restrict movement for 12 or more hours per day.

    Judges will now have guidance about how to factor in risk assessment scores.

    The law will now specify which forcible felony convictions can include sentencing credits, and demonstrated commitment to rehabilitation will be taken into account.

    People serving longer sentences will be able to earn proportionally higher credit. Those serving less than five years can earn 180 days off their sentence; those serving five or more years can earn up to 365 days.

    There will now be a clearer, more transparent structure around credit revocation, and behavioral incentives will be in place for people who have lost credit to get it restored.

    There will be more uniform access to sentencing credits for everyone in the Illinois Department of Corrections. It will allow people to earn credit for self-improvement programs, volunteering, and work outside of correctional industries. People who start but are unable to complete programs due to illness, injury, or transfer will be eligible for partial credit. Those who are on waiting lists for programs when they're transferred to a different facility won't lose their spot in line.

    Felony murder

    The scope of Illinois's felony murder law is narrowed. Felony murder is a type of first-degree murder conviction that results when someone dies while a defendant was commiting any forcible felony. Until now Illinois used a sweeping theory of accountability for felony murder cases. As a result people were getting convicted for murder even in situations when the police killed someone while trying to stop a suspect for a much lesser crime. Now, a person can no longer be convicted of felony murder if a third party does something to cause someone's death (e.g. if a cop runs someone over with their car while chasing a suspect, if a store owner tries to shoot a robber and kills a bystander). This brings Illinois closer in line with the majority of states' understanding of felony murder.

    Resisting arrest

    To be found guilty of resisting arrest a person must be shown to have been committing an underlying offense that was the initial reason for arrest.

    Drivers license suspensions

    The Secretary of State will restore driving privileges to people whose licenses were suspended or revoked due to failure to pay fines. This affects more than 10,000 people in Chicago alone. The provision will eliminate a significant trigger for personal bankruptcy.

    PHOTO ILLUSTRATION BY AMBER HUFF
    • Photo Illustration by Amber Huff

    INCARCERATION

    Decarceration

    Expanding decarceration program eligibility: People with prior felony convictions for possession of small amounts of drugs, who were previously barred from some diversion and probation programs (such as the Offender Initiative Program and the Second Chance Program) will now be eligible to participate. Thousands with prior low-level felony drug convictions will now have access to alternatives to prosecution and incarceration for new nonviolent offenses.

    Parole

    Illinois has not had parole that incarcerated people can apply for since the 1980s, but most prison sentences are accompanied by a period of "mandatory supervised release," which in practice functions similarly to parole for the convicted person. The law will be changed to:

    • Create more nuanced MSR terms for people convicted before December 12, 2005: 18 months for most Class X felonies (such as armed robbery, aggravated battery, and aggravated rape), 12 months (instead of 24 months) for most Class 1 and 2 felonies (such as second degree murder, vehicular hijacking, burglary, and kidnapping), and no set MSR for Class 3 and 4 felonies (such as forgery, perjury, involuntary manslaughter, small-quantity drug posession, and stalking) unless the Prisoner Review Board determines otherwise (and then the maximum is 12 months).
    • For those convicted after January 1, 2009, or serving 85 percent of their sentence, the MSR terms will be three years for Class X felonies, two years for Class 1 and 2 felonies, and one year for Class 3 and 4 felonies.

    Places of confinement

    The IDOC will be able to offer more people electronic home detention, Adult Transition Center placement, and other options for people who have less than four months of their sentence to finish for Class 3 and 4 felonies (not including violent crimes).

    • The definition of "home detention" is changed so that confinement doesn't have to be 24 hours per day and doesn't necessarily have to include electronic monitoring.

    Pregnant prisoner rights (applies to all Sheriff's departments and IDOC, which means both jails and prisons statewide)

    Corrections officials have to receive medical and mental health care training related to treatment of pregnant women. Facilities have to offer pregnant women education on prenatal care, parenting skills, and postpartum recovery. Postpartum recovery time is required for 72 hours after birth and women can no longer be placed in solitary confinement for 30 days after birth or be placed in a bed that's more than three feet above the floor.

    Deaths in custody

    Information on deaths in custody will now be collected and reported by the Illinois Criminal Justice Information Authority (ICJIA) within 30 days. It will be unlawful for law enforcement agencies not to report to ICJIA. This rule applies to deaths as a result of officers' use of force. Detained people's relatives must now be notified about deaths and IDOC will create a dedicated family liaison to communicate with them.

    PRISON GERRYMANDERING

    The law includes the "No Representation Without Population Act" to stop prison gerrymandering. Currently prison populations count toward the electoral districts that host the prisons, but incarcerated people don't get to vote and aren't represented by the officials elected there. The law requires the State Board of Elections to make reports for redistricting that reflect incarcerated people at their last residential address before they went to prison, leading to better access to elected representation in communities most heavily impacted by mass incarceration (most of the state's prison population comes from Cook County). Incarcerated people who were homeless before going to prison, or who came from outside Illinois, will not be counted toward the prison's district either. This change to the law will not affect the current redistricting cycle; it's set to take effect in 2025, and would be implemented in the 2031 redistricting process.

    CRIME VICTIMS COMPENSATION

    The Crime Victims Compensation Act (which applies to victims of violent crimes, be it misdemeanor or felony) was amended to improve upon existing policies and practices:

    Victims can apply for compensation through the Attorney General's office through a more streamlined process that doesn't involve lengthy coordination with the Court of Claims.

    Anyone "in a relationship that is substantially similar to that of a parent, spouse, or child" and living in the same household as a person who is killed or injured is defined as a victim and is eligible to receive compensation.

    Maximum compensation to victims for funeral and burial expenses is increased to $10,000 and cash benefits for victims are increased to $2,400 per month.

    A felony conviction or other criminal history will not disqualify a victim from compensation, but the person still cannot receive compensation while incarcerated.

    People now have five years instead of two to apply for victim compensation funds after an incident.

    The requirement for victims' "cooperation" is changed so that it is sufficient to report the incident when seeking medical care for any injuries within seven days of the incident.  v

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