Criminal Justice Reform Bill (HB 3653) – Part 1: Jails and Detention

January 14, 2021

On January 13, 2021, the Illinois General Assembly passed HB 3653, a sweeping criminal justice reform bill, and awaits signature by the Governor. The IML provided a comprehensive summary of the bill, which can be found here. HCB is looking closely at the 764-page bill and will continue to report of portions that may impact law enforcement and local governments.

Importantly, certain key provisions of prior drafts of the bill were removed before approval, including proposals to end qualified immunity for civil rights violations and removing disciplinary procedures from labor negotiations. However, many more reforms remained in the approved legislation.

HCB will be reporting on the potential impact of HB 3653 on our clients. Our first installment looks at the most significant changes facing your jail:

In Custody Deaths

Article 3, otherwise known as the “Reporting of Deaths in Custody Act,” provides for new reporting procedures on in-custody deaths for every law enforcement agency that can house detainees, including police departments with temporary lockups or “any other facility used to detain person for legitimate law enforcement purposes.” (Section 3-5(a)). For any person that dies in custody of any officer, or in custody of the agency or jail, or as a result of any use-of-force, new reporting requirements apply. (Section 3-5(b)).

The Act requires the Police Department or Sheriff to investigate any death and submit a written report to the Illinois Criminal Justice Information Authority (“ICJIA”) within 30 days of the death. (Section 3-5(b)(2)). The reports must contain race, age, and gender of the decedent, and a “brief description of the circumstances surrounding the death.” (Section 3-5(b)(2)(A)). The Department or Sheriff’s Jail Administrator “shall make a good faith effort” to include all relevant facts and circumstances of the in-custody death. (Section 3-5(c)). The ICJIA is directed to create a standardized form and determine the manner of reporting. (Sections 3-5(d)-(f)). These reports will be subject to FOIA, but the Act only authorizes the ICJIA to determine if sections of the reports are “privileged or protected under Illinois or federal law.” (Section 3-5(g)).

The Act further requires notification of the family, next of kin, or designated emergency contact of the decedent to be notified “as soon as possible” and requires the notification to include an “accurate factual account” of the cause and circumstances of the in custody death. (Section 3-5(k)). The Police Department or Sheriff must designate an officer as a “family liaison officer” to become a point-of-contact in order to update the family or next of kin with updated information. (Section 3-5(l)) At the family’s request, a counselor, chaplain, or other “suitable staff member” must be provided to the family to discuss any “faith considerations or concerns.” (Id.). The statute creates a right of access for the family to the deceased’s medical records subject to Illinois and federal laws. (Id.).

The statute creates a petty criminal offense for any failure to include “facts known or discovered in the investigation” in any report submitted to the ICJIA. (Section 3-5(m)).

Pregnant Detainees

The Act amends the Counties Code, County Jail Act, and Corrections Code to include identical provisions requiring training for corrections officers and “any other corrections employee whose duties involve contact with pregnant prisoners” regarding “appropriate care for pregnant prisoners,” and the impact on pregnant detainees and their children of “use of restraints,” segregation, and “invasive searches.” (730 ILCS 125/17.6) Additionally, the Sheriff is directed to develop and provide to pregnant detainees “programming related to pregnancy and parenting” including “appropriate prenatal care and hygiene,” the effects of using alcohol and drugs, “parenting skills,” and the “medical and mental health issues applicable to children.” (730 ILCS 125/17.7).

The Act further requires post-partum recovery assistance, including allowing infants to remain with the detainee for 72 hours unless there’s a health or safety risk to the child, and access to nutrition and hygiene products for the child. (730 ILCS 125/17.8). The statute further prohibits pregnant detainees from being housed in a top bunk, and prohibits administrative segregation for any detainee who is pregnant or has given birth within 30 days unless there is a “reasonable belief” of self-harm, harm to the infant, or escape. (730 ILCS 125/17.9(a)-(b)).

Medical Care

The Act amends the Code of Criminal Procedure to include the general requirement for humane treatment for those in custody to include provision of medical treatment, “without unreasonable delay if the need for treatment is apparent.” (725 5/103-2(c)). There is no apparent mechanism for enforcement of this provision, other than a lawsuit for mandamus relief by a detainee.

Phone Calls
The Act amends the Code of Criminal Procedure provides a detainee taken into custody the right to make three (3) phone calls within three (3) hours of being taken into custody and to retrieve numbers from their cellular phone prior to the phone being placed in inventory. (725 ILCS 5/103-3 (a-5)) The right to make 3 calls within 3 hours must be posted along with the local public defender’s telephone number. (725 ILCS 5/103-3 (a-10), (a-15)) The right to make these calls is triggered again if the person is transferred to a new facility, and the three-hour-rule is tolled if the person is “asleep, unconscious, or otherwise incapacitated.” (725 ILCS 5/103-3(c), (e))

What Does This Mean for Your Facility?

These new provisions will create new areas of grievance by detainees and new potential bases for mandamus petitions by detainees or compliance risks related to motions brought by the detainees’ criminal defense counsel. Further, the in-custody death reporting structure creates a new area of potential petty criminal exposure for those involved in reporting to the ICJIA, but it remains to be seen how the ICJIA will choose to enforce these provisions. Further, it does not appear that there is any funding for the creation of the liaison officer position required under the Act. It also remains to be seen how the ICJIA will set up the manner and forms for reporting in-custody deaths, and how soon ICJIA can establish a web portal for such reporting.

Please contact us if you have any concerns regarding the new bill, or have any questions as to how your police department or jail must comply with the new standards set forth in the new bill.

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