Illinois lawmakers spent much of their weekend session debating criminal justice reform bills.
The Illinois Legislative Black Caucus is using the lame-duck session to address a range of social equity issues, from healthcare to education to criminal justice.
On Saturday, for a combined seven hours, the House Judiciary Committee and Senate Executive Committee heard testimony on proposals to eliminate cash bail, decriminalize possession of small amounts of controlled substances, redefine the felony murder classification, change collective bargaining rules for law enforcement, and repeal qualified immunity statuses for members of law enforcement.
Throughout the weekend hearings, GOP lawmakers voiced concern the proposals were moving too quickly, given their overall length and calls for additional amendments.
“Nobody’s asking this to be slow-rolled,” State Rep.Terri Bryant (R-Murphysboro) said. “What we’re saying is lame-duck session is not the time to hash out a 600-, now maybe 800-, maybe 1000-page issue on something that is this important.”
Although lawmakers held hearings last summer on criminal justice, language for the most recent reform bill was not filed until January 5.
Proponents of the measure said a level of trust has been lost between communities of color and law enforcement, and thus a comprehensive solution is needed now.
“This is a big problem, and requires a bold response,” John Rakowski of the Illinois Bar Association said. “This is not a moment for incrementalism.”
Members of the Black Caucus hope to get a final up or down on the sweeping reform package by the end of the lame-duck session on Wednesday.
When the Senate met for its hearing, discussions centered around repealing qualified immunity status for members of law enforcement, prisoner gerrymandering, and changes to collective bargaining agreements for law enforcement. Many of the issues were also discussed at Sunday's House Judiciary hearing.
As far back as 1871, the U.S. Supreme Court has allowed people who have had their rights violated by members of law enforcement to sue for damages. However, following the 1982 case Pearson v. Callahan, public officials were allowed qualified immunity status.
Although the 1982 case did not strip away a citizen’s right to sue public officials who violate stipulated rights, it does grant said officials certain legal protections while acting in an official capacity. HB163 would repeal qualified immunity as a defense for members of law enforcement.
Opponents say the move would make officers and municipalities too vulnerable to constant lawsuits and could affect officer performance, retention, and recruitment.
“The key word is ‘qualified’ which means that it is only under very specific conditions,” Brad Cole of the Illinois Municipal League said. “It is not absolute immunity. Removal of qualified immunity will create, however, an absolute liability burden that could lead to local governments being without insurance protection.”
The Illinois Municipal League is currently neutral on the omnibus bill.
Proponents of the bill say repealing qualified immunity will result in higher standards of conduct amongst law enforcement.
“Police departments will have to apply and execute their own policies more rigorously,” Peter Hanna of ACLU Illinois said. “They will need to train a police force that understands that they could be held accountable for violations of a person’s constitutional rights.”
Another proposal is to bar police unions and local governments from negotiating on anything other than wages and benefits.
Proponents of the bill say such measures will discourage the practice of shuffling around officers with troubling disciplinary records from one department to another.
However, a number of public unions, including the American Federation of State, County, and Municipal Employees and the Fraternal Order of Police, have voiced their opposition to the bill based in part on the collective bargaining component.
Rep. Elgie Sims (D-Chicago), one of the chief sponsors of the omnibus bill, said initial language regarding collective bargaining may have been “inartfully drafted.”
“My intent remains the same, to make sure that this provision is limited to issues and areas of discipline,” Sims said. “The intent is not to impact wages or conditions of employment.”
End Cash Bail
In a continuation of bail changes made in a 2017 criminal justice reform package, the proposal is to end the practice of requiring those in jail awaiting trial to have to pay to be able to leave.
Black Caucus members say requiring a cash payment to leave detention is not about protecting public safety. Instead, it creates a disparity between those who can and can’t pay.
Sharrone Mitchell of the Illinois Network for Pretrial Justice said similar measures have already been enacted in New Jersey and Washington D.C., and that in those locations existing cash bail options are now rarely utilized.
“Folks can lose their jobs, their benefits, and they can’t pay rent because they’re stuck in jail just for a few days,” Mitchell said. “We need to avoid these situations.”
Judge Robbin Stuckert of the 23rd Judicial Circuit, who has worked with Mitchell on this issue, was a member of an Illinois Supreme Court commission on pretrial practices. Stuckert said it was the belief of that commission that if cash bail were to be repealed, municipalities would need ample time to prepare.
“The amendment currently has an immediate effective date,” Stuckert said. “While these reforms are long overdue, an immediate effective date could be catastrophic for the system, and impede the very reforms all of us are seeking.”
Stuckert instead recommended a two-year phase-in for the proposal, similar to what occurred in New Jersey.
Decriminalizing Controlled Substances and Other Sentencing Reform
Lawmakers debated several sentencing reforms that would eliminate some mandatory minimum sentences, reduce time served for certain offenses, and trade prison or jail time for fines.
Unlike the 2020 legalization of recreational cannabis, which only decriminalized possession and use of cannabis, the Black Caucus seeks to reduce the punishment for an individual in possession of small quantities of a controlled substance.
Instead of a Class 4 felony offense, which carries up to a three-year sentence, possession would be reduced to a Class A misdemeanor and offer opportunities for drug treatment.
Ben Rudell of ACLU Illinois said Black and brown Illinoisians historically have been convicted of drug felony offenses at much higher rates than white Illinoisians. As a result, there is a significant racial disparity in drug-related incarcerations.
Rudell also said the measure would call for a rethinking of jails as a destination for drug offenders to receive treatment for their addictions.
“We know that jails and prisons are not treatment centers. Incarceration ultimately worsens the health of individuals,” Rudell said. “Nobody should ever be sent to jail or prison for the purpose of getting treatment. That shouldn’t be a substitute for gaps in our community-based treatment system.”
Rep. Kelly Cassidy (D-Chicago) addressed concerns raised by GOP lawmakers that the bill would mean reducing punishments for possession of all drugs, including meth and heroin. Cassidy said the intention of the legislature is not to endorse drug use, but to acknowledge the failures of current drug rehabilitation tactics.
“What we’re saying is what we are doing isn’t working,” Cassidy said. “We have a problem with these arrests and people being held in county jails sometimes for longer than their ultimate sentence ends up being. That’s not getting folks into treatment, that is keeping folks on the treadmill of addiction.”
In contrast, Windhorst, the Metropolis Republican and a former prosecutor, said the bill does not acknowledge the current practice of courts, which allow drug-related offenders to seek alternative punishments in lieu of jail time.
“That is the goal of most court systems for a first-time offender who possesses a personal amount of a controlled substance, for that person to receive treatment alternatives to incarceration,” Windhorst said.
The reform package would also allow law enforcement to respond to other low-level offenses, such as trespassing, loitering, gambling and porstitution, with a ticket as opposed to arresting and charging a person with a misdemeanor.
Brendan Shiller of the Westside Justice Center said by offering someone an alternative to incarceration or having a misdemeanor offense on their record, it can decrease the probability of repeat offending.
“Arresting and processing somebody and having them spend the night in jail and having them go to court, even when the case is dismissed, for a nonviolent misdemeanor is far more likely to make that person a criminal later than simply just warning them against doing it,” Shiller said.
Another priority for sentencing reform for the Black Caucus is changing the defintion of “felony murder.”
In 2019, five Black teenagers in Lake County were charged with felony murder when an additional member of their group was shot and killed by a bystander. Because the teenagers were in the act of a felony, attempted carjacking, at the time of the killing, they were collectivley charged as being culpable for the murder.
Currently, if an offender commits a felony and a person dies while the felony was committed, that said offender can be charged with felony murder, even if the offender was not directly responsible.
Dan Johnson of Restore Justice Illinois said the broad scope definition of “felony murder” has resulted in several Illnoisians serving extended sentences in prison, a practice Johnson says is flawed.
“Those very long sentences, the differences between 20 or 40 or 60 years, does not make a difference in whether an individual is going to commit a crime,” Johnson said.
Johnson also said data on instances of felony murder are muddled as there is not currently a distinction between felony murder and criminal homocide.
In contrast, Rep. Patrick Windhorst (R-Metropolis) said he is concerned the current language of the bill regarding what would count as felony murder would be too high a bar for prosecutors in court.
“The issue is it says that the individual knew that the other participant would engage in conduct that would result in death or great bodily harm,” Windhorst said. “That degree of knowledge would be very difficult to prove.”
Similar to the logic on ending cash bail, the Black Caucus seeks to allow judges more discretion on whether an offender needs to be incarcerated.
Currently, judges are legally mandated to sentence certain offenders to jail for a minimum amount of stay for specific convictions. The Black Caucus’ proposal would allow for judges to offer alternative accountability measures for non-violent offenders.
Todd Belcore of Social Change said such the measure could help to lower correctional costs and still emphasizes the safety of the community.
“To ensure that discretion by the judge isn’t abused,” Belcore said. “The judge has to actually articulate on the record why this person does not pose a risk to public safety, why it’s in the interest of justice to provide a sentence that’s more appropriate than what the mandatory minimum would otherwise require.”
Belcore also said the measure has already been enacted in 11 states.
The criminal justice reforms also include proposed changes to when a judge can order a life sentence by changing what qualifies as a Class X felony. Currently, if a person is found guilty of three Class X felonies, they are subject to receiving a life sentence.
Although this class includes offenses like kidnapping and armed robbery, it can also be met through a combination of Class 2 offenses, which includes the distribution of illegal drugs. The measure would eliminate these offenses from counting toward a Class X felony.
Members of the Black Caucus also propose that Class X felonies committed before a person turns 21 not be counted towards a potential life sentence because they believe brain development is not being properly considered for extended prison sentences.
Ending Prison Gerrymandering
The Black Caucus also wants to end the practice of prison gerrymandering. Currently, after each decennial census, prisoners are counted as residents in the community where the correctional facility is, as opposed to their permanent residence.
Proponents for the measure argue by including prisoners in community populations, it can incentivize the retention of prisoners.
“Fundamentally, this is about services going to the folks that need them where they are, where they’re going to be, where their permanent home is,” Cassidy said.
Opponents argue by not counting prisoners in the communities where correctional facilities are located, it deprives resources from local governments and could go against federal census reporting guidelines.