1/15/2021

Illinois Criminal Justice Reform Bill - Deep Inhale through your Nose, Strong Exhale through your Mouth and Let’s take a Deeper Look

 

Podcast version of these comments

Illinois Criminal Justice Reform Bill - Deep Inhale through your Nose, Strong Exhale through your Mouth and Let’s take a Deeper Look -Tom Higgins

One of our kids' free dives. He can go 90 or so feet on one breath. I am not going to dive quite that deep into this bill, but I need to address a few of the areas of this bill that impact and concern my students, graduates, and our community.

Qualified Immunity

One of the most controversial provisions of the bill was an attempt to end qualified immunity for police officers. There has been a lot of misinformation about what actually passed and what the expectations of the bill if signed into law as written will be. Hopefully, we don’t lose good and qualified police officers due to this misinformation. But for my graduates, my friends, my students, deep inhales through your nose and strong exhales through your mouth for 5 breaths. Don’t turn in your retirement or resignation paperwork or look for a different career path just yet.

As background, qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights that a reasonable person should have been aware of. The doctrine attempts to balance two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.

The final version of the bill does not gut Qualified Immunity. It creates a yearlong Task Force on Constitutional Rights and Remedies. I hope this 18 member task force includes people who understand Constitutional rights and the law that governs the use of force, police procedures, and the realities of teaching and training the same, consistently and on an ongoing basis. And yes, I am available if you need me. But the primary charge of this task force is to investigate and develop procedures to protect constitutional rights and remedies should those rights be violated. The task force will look at qualified immunity among other things.

A report with policy recommendations must be submitted to the governor’s office and the General Assembly by May, with the task force being dissolved by the legislation at the start of the new year.

Like every aspect of this bill, my concerns center on 4 words. Planning, support, coordination, and funding. Most police agencies are underfunded, especially when it comes to on-going, quality training. In this area, training must be consistent, ongoing, facilitated, and supported. And the reality is that a well planned, supported, coordinated, and funded approach to the next topic likely eliminates the major concerns with qualified immunity.

Use of Force

According to the bill, the General Assembly intends to establish statewide use-of-force standards by 2022 while making changes to what is acceptable and unacceptable uses of force in Illinois statute.

The bill provides that the use of force is permissible only when an officer has determined it is necessary to defend either themselves or others from bodily harm when making an arrest. When a suspect is attempting to escape, officers would not be permitted to use deadly force to stop them, unless that person cannot be apprehended at a later date and is likely to harm others.

The law prohibits certain uses of force. Choke holds and restraints above the shoulders that can restrict breathing are banned unless explicitly used as deadly force. It also prohibits using force as a punishment or in retaliation when it is not authorized; using non-lethal projectiles like tasers and rubber bullets on someone’s head, groin area, or back; firing rubber or any type of round into a crowd; using tear gas and pepper spray without first allowing a crowd to disperse after being warned.

Before officers can use deadly force, they must make a reasonable effort to identify themselves as law enforcement and warn that they are about to use deadly force. Law enforcement can no longer use deadly force against someone for committing a property crime unless that crime is tied to terrorism or to another crime or action where deadly force is permitted.

Officers are also restricted from using deadly force against a person who poses a danger to themselves but does not pose an imminent threat to the officer or another person.

The police reform provisions also add two new duties to the Illinois statutes that officers must follow. The first requires law enforcement to give immediate medical assistance to an injured person, regardless of whether they were injured by the officer’s use of force. The second is the duty to intervene when another officer uses excessive force and to file a report of that incident within 5 days.

On the day the Laquon McDonald video was released I was with a group of friends. We got together to see a buddy who was in town and to celebrate the retirement of one of our other friends. Most of the individuals attending were or had been in law enforcement. Many of these individuals began their career with a service revolver.

The Laquon McDonald video became a topic more than a few times that evening. It was viewed and discussed with disbelief. Some of the criticism of the Chicago Police Department at that time centered on a lack of available tasers. Most of the individuals in this group began their careers long before tasers.

The consensus of these seasoned veterans was that, from their training and experience, the response would have been to surround the obviously under the influence 17-year-old at the opportune moment, someone would risk being stabbed as they attempted to tackle and disarm the young man. With all respect to the valid criticism of hindsight, not one person in that group, by their training, department policies, or own common sense would have fired their weapon.

I teach the law of the use of force to a diverse group of young men and young women who struggle with their desire to enter this career, to serve their community in something they have a passion for and the reality of what they saw happen to Laquon McDonald or any of the other incidents of concern that led to this legislation. I care about and try to support my students and graduates as if they were my own kids. I saw the pain and confusion in their eyes. I witnessed people who would have been great public servants choose another career path because of the obvious problems, questionable and just plain unnecessary and horrific incidents that should have never happened.

I don’t have a problem with the spirit and intent of this part of the bill. But I do have reservations centered on 4 words. Planning, support, coordination, and funding. Most police agencies are underfunded, especially when it comes to on-going, quality training. And in this area especially, training must be consistent, ongoing, facilitated, and supported.

Cash Bail

Effective Jan. 1, 2023, all bail bonds and conditions of bail will be replaced by a system of pretrial release to be developed by the Illinois courts based on a detainee’s alleged crime, their risk of not appearing for their court date, and the threat or danger they may pose to the community if released.

Twice in my life, I have participated in audits and reviews of years worth of criminal cases. I won’t bore you with the details of those studies but I will tell you that there is no doubt in my mind and there is no valid argument that I am aware of that would dispute the fact that the ability to pay bail, fines and court costs impacts some people more than others. If we can agree that the focus on the criminal side of our justice system is to prevent future crime, to see people face a penalty for their actions but encouraged to reform or change their behavior in the future, cash bail, court fines, and court costs create a burden for poor people that often puts them in a hole they just can’t get out of.

I just saw a news account of a man I know who did something incredibly stupid and criminal. He had the means to post bail. He will have the means to pay any fines, court costs, and fees in his case. Whatever his other sentence requirements will be, he will have hurdles to overcome, and depending on how he approaches his circumstances, he will get over those hurdles. But he will be on level ground and able to approach and have a good opportunity to get over those hurdles.

At the same time, my guess is that there are several individuals sitting in the county jail with similar charges. Individuals who made stupid decisions that resulted in criminal activity but don’t have the ability to post bail. If they had a job at the time they were arrested, they’ve likely lost that employment. They will face their sentence and whatever that punishment may be and that sentence will include a fine, court costs, and fees in amounts the individual will not be able to pay. Those unpaid fines, costs, and fees may, as they often do, lead to a subsequent arrest. These individuals also have hurdles to overcome, but unlike the individual who has the means or support system to pay bail, fines, and costs, they can’t take their hurdles on from the level ground. These individuals face the impossible task of getting over their hurdles from inside a hole.

I believe this is the focus of this provision but here are some realities I see with the implementation of this expectation by 2023. First, the courts, sheriffs, and jails in many areas of the state are not set up to provide what this law would require. I won’t go into the details of my concerns here at the top of the list would be supporting Judges and the Sheriff. Some rural circuits may have one Judge covering multiple counties and many Sheriff’s offices have outdated and unsupported communication systems and little chance of running “Zoom” hearings. 4 words. Planning, support, coordination, and funding.

Police Certification

A police certification provision backed by the attorney general’s office was also added to the bill. It would give the state more power over who can be a member of law enforcement and makes it attempt to streamline the process to decertify and terminate the employment of problematic officers.

Before this legislation, the Illinois Law Enforcement Training and Standards Board could decertify an officer only if they were convicted of a felony or a limited set of misdemeanors such as offering a bribe, prostitution, or criminal sexual abuse.

The bill would grant ILETSB greater discretion to decertify officers based on whether a Certification Review Board determines they violated conduct guidelines.

An officer could be decertified if it is determined they committed a felony or a disqualifying misdemeanor, even if they were never convicted or charged. Other actions that could result in an officer being decertified include using excessive force; failing to intervene when another officer uses excessive force; tampering with dashboard cameras, body cameras, or evidence; and committing perjury or engaging in “unprofessional conduct” such as deceiving or harming the public.

Under a new statute of Law Enforcement Compliance Verification, all officers must verify their certification with ILETSB every three years to prove they’ve completed all mandatory training and have not engaged in misconduct worthy of decertification.

No law enforcement agency could hire a person who is not ILETSB certified.

The certification also overhauls transparency and communication in the criminal justice system, creating three databases maintained by ILETSB relating to officers.

The first database, which will be private, will have every law enforcement officer’s certification status, instances of misconduct, and current or past status of employment in law enforcement agencies. The database will be available to the Illinois State Police, governmental agencies, law enforcement agencies, state’s attorneys, and the attorney general. All law enforcement agencies would be required to use and check this database when hiring an officer.

Two other public databases would also be maintained by ILETSB, one that contains all officers, their agency, certification status, and any misconduct that led to decertification; and one that contains all completed investigations of law enforcement misconduct, with the identifying information of the officers involved redacted.

On this one, at least for me, no problems or issues so long as we remember my 4 words of concern. Planning, support, coordination, and funding. In this case, I have faith in the Illinois Law Enforcement Training and Standards Board. They will plan, support, and coordinate but will the legislature provide sufficient support?

And the final part of this broad stroke with a big brush bill that I will mention is Body Cameras.

Body Cameras

We have been on the path to Body Cameras for some time now. Under this bill, the Law Enforcement Officer-Worn Body Camera Act would be amended so that all law enforcement agencies must eventually use body cameras.

The largest agencies must have body cameras in place by 2022, while all agencies, no matter how small, must have body cameras implemented by 2025.

Originally, this provision was touted as the “defund the police” portion of the bill due to a non-compliance penalty that reduced how much state funding municipalities received for each year law enforcement agencies under their control violated the mandate.

Now, compliance is rewarded and the penalty has been removed, with ILETSB giving preference in grant funding to agencies following the mandate.

My view and advice has always been that body cams protect the officer as much as the public. Like dash cams, it is the best evidence available of what occurred. When the law is enforced reasonably and properly, these cameras provide the best evidence available. And when it isn’t, these cameras provide the best evidence available.

For all interests and perspectives, body cameras are a good thing. From my conversations, police officers and police agencies aren’t opposed to body cameras. The issue with body cameras is and has always been that it was an unfunded mandate on already strapped and struggling local bodies of government.

So again, the theme for concerns on this one and the entire bill comes down to 4 words.

Planning, Support, Coordination, and Funding.

Deep Breaths, Stay Tuned but please don’t quit, don’t choose another career path just yet, and trust the law you took an oath to uphold will land somewhere reasonable and hopefully planned, supported, coordinated, and funded.