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New Criminal Justice Bill Affects More than Just Cash Bail

HB 3653 was passed by the assembly on 1/13/2021.  There are a variety of criminal justice issues included in the bill.  Many people have already heard that "cash bail" will be ended by this bill.  The bill will eliminate cash bail for a wide array of non-violent felonies.  However, it will not result in the release of offenders that are accused of violent criminal acts.  The strange thing regarding cash bail is that since Covid 19 most people who were accused of low level offenses have already been released on personal recognizance bonds.  I really don't see much different occurring when this new law takes effect (if the Gov. passes it).  Also, we have already complied with prior law requiring bond hearing be conducted with certain goals and risk assessments.

All police must wear body cams by 2025.  This is a step in the right direction.  Too many times I have personally witnessed police lie about the facts surrounding a person's arrest.  Too often there is no recording to disprove their claims.  A fact finder will almost never disbelieve a police officer's version of events.  Just recently I tried a case where the police claimed my client resisted arrest in a variety of ways.  We had no dash cam to disprove their claims.  Eventually, I located a dashcam from a different agency who had backed up the arrest.  That video discredited the two police officer's claims and we won the trial in less than 30 minutes for deliberations.  These events must be stopped.  I beleive mandating body cams will be a good step forward.

A ban on most no-knock search warrants is included in the bill.  Whether this actually makes an impact remains to be seen.  I know we have seen a feew high profile cases in other states where a bad result occured from such a no-knock entry.  We actually had a state trooper die in such an entry into a house at 5:30 a.m.  This may prevent a few bad results but I don't see it meaning much anything in the big picture of law enforcement.

The most important portion of this bill is the creation of a state action similar to Section 1983 federal civil rights claims.  The defense of qualified immunity will not exist.  This is a huge change of law.  When we file civil rights claims for the most part we always choose federal courts as a prevailing party receives attorney fees, costs, and punitive damages.  The State of Illinois has not recognized such an action in the past.  And if we chose to file a state tort action against the offending officers we could not receive attorney's fees as part of the award.  This change of law will result in most every civil rights case being filed in State court versus federal court.  Qualified immunity is a defense where the police claim their set of facts is so different that it is dissimilar to any other case that has been litigated.  The judges bent over backwards to dismiss cases under this defense.  Many times it made no sense in that a reasonable officer should have known their behavior was going to result in civil liability.  Again, this is the most important change of law created by this bill. 

One other issue raised by this bill is the abolition of the felony murder law.  This law allowed the State to prosecute a person for murder when commission of a felony offense resulted in the death of another.  This change is substantial and will definitely affect how a person can be prosecuted in such a situation.  Oftentimes a suspect will plead to a lesser offense to avoid the possibility that they could be convicted of murder which would carry a very high sentence.  This may be a good change in the law.  Time will tell.

Brian L. Polinske
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