Illinois lawmakers have kicked off the new year with a massive policing reform bill. It will eliminate the use of cash bail, limit the use of deadly force, improve reporting of deaths in police custody, mandate the use of body cameras, and make it easier to decertify and fire officers who engage in misconduct, among other things.
The bill, H.B. 3653 was passed Wednesday by the state Senate and then early Thursday morning by the state's House. Democratic Gov. J.B. Pritzker has praised the bill, so it seems likely he'll sign it into law.
The bill is lengthy—more than 700 pages—and touches many areas of policing:
- It creates a process for the state's attorney general to take a law enforcement officer to civil court if that officer has violated a person's civil rights and to seek financial damages, with a cap of $50,000. An earlier version of the bill would have stripped police officers of qualified immunity when they've been found to violate a person's rights, thus allowing individuals to sue officers in civil court, but that was removed from the final version of the bill.
- It mandates body cameras for all police officers in the state, with compliance deadlines staggered across the next four years.
- It establishes that after January 2023, monetary bail will be abolished within the state. Instead, people arrested for crimes will be evaluated with a goal of releasing them with only enough pretrial conditions to ensure they make it to subsequent court appearances and don't commit crimes while on release. Full detention will be ordered only "when it is determined that the defendant poses a specific, real and present threat to a person and has a high likelihood of willful flight." The court may use a risk assessment tool to evaluate the defendant, but the score cannot be the only reason why a defendant is denied pretrial release—and the defendant must be provided the information, so that he or she may challenge it. There are many exceptions to the orders for pretrial release, including defendants accused of stalking and domestic violence, many firearm-related crimes, human trafficking crimes, or any forcible felony that comes with a mandatory minimum prison sentence. Even in these cases, however, a court must determine that the defendant is too dangerous to be released.
- It establishes a new class 3 felony of law enforcement misconduct, with a possible sentence of two to five years in jail. This will cover officers who misrepresent facts during an investigation, withhold knowledge of misrepresentation by other officers, or fail to comply with state laws or department policies on body-worn cameras.
- It allows cities with populations greater than 100,000 to require that police live within city limits. Current law only permits this for cities with population greater than 1 million.
- It allows other first responders besides police to direct people they encounter with substance abuse problems toward treatment programs, without requiring an arrest.
- It allows funds for police and first responders to carry naloxone and similar supplies that can reverse opioid overdoses.
- It prohibits law enforcement agencies from requesting or receiving excess military equipment, such as armored vehicles, large-caliber guns, or grenade launchers.
- It prohibits retaliation against whistleblowers, a problem that has come up repeatedly when people try to expose misconduct in the Chicago Police Department.
- It demands that all records connected to complaints against police officers and investigations of police officers be retained permanently.
- It adds crisis intervention and de-escalation training to the curriculum for new police officers and to mandatory training every three years.
- It requires the state police to participate in and provide data to the FBI's National Use of Force database.
- It amends the police disciplinary process system so that officers under investigation are not provided the names of those filing the complaint, and so that it is no longer a requirement for people to provide their names in order to file a complaint about police misconduct. The Illinois Law Enforcement Training Standards Board is authorized to perform the preliminary review to see if there is evidence that supports the anonymous complaint.
- It halts the practice of suspending driver's licenses for failure to pay traffic citations or abandoned vehicle fees.
- It amends the definition of resisting or obstructing a police officer to require that, in order to arrest and individual for resisting arrest, there must be an underlying offense for which the person was subject to arrest. No more charging people only with resisting arrest.
- It forbids the use of deadly force against people who are a danger only to themselves, and it forbids the use of deadly force against those suspected of committing only property offenses (except in cases of terrorism). The new rules require that deadly force be used only "when reasonably necessary in defense of human life." It also explains that "merely a fear of future harm" is not enough to reach this threshold. That's an important distinction, because many defenses of police shootings of unarmed suspects revolve around the officers claiming that they feared the suspect was armed.
- It forbids chokeholds and neck restraints and forbids the use of force as punishment or retaliation. It forbids the use of non-lethal weapons in a manner that targets the head, pelvis, or back, and it forbids firing non-lethal weapons indiscriminately into crowds. It also forbids using irritants like tear gas against crowds unless police have both ordered the crowd to disperse and given it enough time to do so.
- It establishes a duty to render aid to anybody police encounter who is injured (or anybody they injure) and an affirmative duty to intervene when they witness another police officer using unauthorized force. Retaliation against an officer who intervenes in this fashion is forbidden.
- It calls for the citation and release rather than the arrest of anybody accused of traffic offenses, petty offenses, or low-level misdemeanors, unless they pose an obvious threat to others or themselves.
- It establishes that all police officers must be certified to perform as law enforcement by the state's Illinois Law Enforcement Training Standards Board. It gives the board the authority to suspend an officer's certification immediately if the officer has been arrested or indicted on felony charges. A panel will hear the officer's case and can decide whether to maintain or reverse the officer's suspension of certification.
- It orders the creation of a searchable database of law enforcement officers, available to the public, showing each officer's certification status and any sustained complaints of misconduct.
This is a lot of reform to pack into one bill, and it's going to take some time to see how it all plays out. The bail reforms appear to be following the same steps as New Jersey, which has mostly eliminated the use of cash bail, without making the mistake California did of giving judges too much leeway to deny pretrial release. Judges will still call the shots for the rules of pretrial release in Illinois, but as in New Jersey the law establishes a presumption of release and forces the court to document why somebody is too risky to be released.
Those distinctions matter because the purpose of reforming bail is to make sure that risk, not money, determines whether somebody is detained before trial. America has about half a million people stuck in pretrial detention, many of whom are not dangerous to the public but simply cannot afford the cost of bail. People who are unable to earn pretrial freedom typically end up accepting worse plea deals and get harsher sentences than somebody able to address the charges outside of jail.
But if judges aren't given the right tools to assess risks, the reforms can backfire and leave more people detained without any option of being released, since cash bail is no longer permitted. In Baltimore, poorly implemented reforms have led to an increase in people being released on their own recognizance, which is good, but also an increase in the number of people detained with no prospect of pretrial release, which is bad.
As for the risks when more people are released before trial: The evidence is preliminary, as many of these reforms are so new, but a reduction of bail demands in Chicago's Cook County found that increasing the number of people freed from detention did not contribute to crime increases.
It's unfortunate that reforms to qualified immunity were cut from the bill, but the legislation does call for a task force to explore possible changes in that area. Qualified immunity has been abused to protect police officers (and other government officials) from civil liability when they abuse citizens. Curtailing or eliminating qualified immunity would make cops think twice about beating people up for no good reason.
But even without that reform, police interests are screaming bloody murder, by which I mean they're saying you'll be bloody murdered if you restrain the police state. The Illinois Law Enforcement Coalition claims the bill "ties the hands of police officers while pursuing suspects and making arrests, and allows criminals to run free while out on bail. The legislation includes no way to pay for any of these law-abiding citizen-threatening measures, so taxpayers will have to pay extra for the privilege of being crime victims."
Well, let us know when it approaches the hundreds of millions of tax dollars being spent to pay settlements for police abuses just in Chicago alone.