Illinois’ criminal justice overhaul makes it easier to decertify bad cops. But it could be harder for the public to learn about them.

A little-discussed amendment to the sweeping criminal justice package creates a new process to decertify Illinois police officers. But transparency advocates are alarmed by provisions that appear to restrict public access to misconduct records.

In the final minutes of the Illinois General Assembly’s lame-duck session, legislators passed a sweeping criminal justice reform package.

One little-discussed amendment in the bill, which passed on Jan. 13, creates a new process to revoke the certification of police officers in Illinois. In the wake of nationwide uprisings against police misconduct last year, activists and elected officials have pushed for reforms that make it easier to permanently terminate the employment of officers who commit abuses.

A provision on police licensure, which was added to the criminal justice omnibus bill passed today, also requires all Illinois police departments to report misconduct investigations to the state. But in a move distressing to transparency advocates, this information will be shielded from public disclosure, thanks to measures added earlier this month.

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Illinois Attorney General Kwame Raoul has led the push for changes to the certification process. His office did not respond to a request for comment about the bill’s transparency provisions.

A ‘huge step forward’

Police officers in Illinois must be certified by the state’s Law Enforcement Training and Standards Board, which also oversees state training requirements.

But until now, the Board could only decertify an officer who had been convicted of a felony or certain misdemeanors, including charges for sexual misconduct, theft, gambling, sex work, and drugs. The automatic process doesn’t allow the Board—which is made up of both gubernatorial appointees and statutory members including the Chicago Police Department Superintendent, Cook County Circuit Court Clerk, and Cook County Sheriff—to investigate allegations, or hold fact-finding hearings.

That’s a high bar to meet, given the difficulty of prosecuting police officers. Of the 46 states that have a process in place to revoke police certification, the majority allow for investigations and hearings, according to Saint Louis University law professor Roger Goldman, who has studied the issue for decades.

The lack of a more robust process in Illinois leaves many communities without a viable avenue to hold their local police officers accountable, Goldman’s research shows. He also found that officers who are fired from one department can often just find a job in another, since they maintain their state certification.

So-called department hopping poses problems throughout the country, including in suburban Cook County. Smaller, poorer departments are often unable to conduct in-depth background investigations into officers, or offer pay rates attractive enough to hire officers with clean records, who can usually attract offers from richer departments with higher wages.

The amendment, sponsored by State Sen. Elgie Sims and Rep. Justin Slaughter—both Democrats from Chicago districts—will increase supervision of local police departments and officers by the state Law Enforcement Training and Standards Board. Now awaiting Governor J.B. Pritzker’s signature, the bill also expands decertifiable conduct to include excessive force, perjury, tampering with video, or conduct considered to be “unprofessional, unethical, deceptive, or deleterious,” the bill reads.

If the Board concludes that an officer took actions “that would constitute a felony or misdemeanor which could serve as basis for automatic decertification,” the bill reads, then the body can file its own charges for decertification—regardless of whether the officer was charged, convicted, or disciplined by their department. After the Board decides to file for decertification, the case goes to a hearing by administrative law judge. The judge then makes a recommendation to a Certification Review Panel, a new body created by the bill solely to hear and decide decertification cases.

Goldman, who regularly works with legislators and advocates to develop and improve state-level police oversight systems, told Injustice Watch that removing the conviction requirement would represent a “huge step forward.”

Public access to misconduct records 

The police licensure reforms passed today also include expansion of the Board’s “officer conduct list,” initially created by a 2015 omnibus criminal justice bill sponsored by then-Rep. Sims and then-Sen. Raoul.

According to Sims, the list aimed to stem department-hopping by officers fired for misconduct. But though its use is required by law, in practice this use is inconsistent between departments, with no enforcement by the Board.

The 2015 law required departments to notify the Board whenever an officer is fired for, or resigns under, investigation for “willful violation of department policy.” This requirement will now include extended suspensions and actions that “would trigger an official or formal investigation under a government agency policy.”

Advocates see this as another potentially positive step, but there’s a catch: The bill also exempts the conduct list and its underlying documents from release under the state Freedom of Information Act—blocking the public from learning whether officers employed by their local department are on the list.

Instead, a provision on “Transparency” stipulates that the Board can only publish a list of decertified officers, as well as an anonymized list of misconduct investigations.

This could effectively restrict information currently available through FOIA in Illinois. Records documenting all police misconduct complaints and ensuing investigations, including the names of accused officers, are public pursuant to state law and Appellate Court decisions—regardless of whether or not a sustained finding was made.

In an October 2020 interview, conducted before the bill’s language was finalized or released, Sims said that one challenge was “walking that fine line and balancing the public’s right to know with the privacy rights of the officer.”

Sims’ spokesperson did not respond to a request for comment on the final transparency provisions included in his bill. Governor J.B. Pritzker’s press secretary also did not respond to a request for comment.

Transparency advocates including Matt Topic, an attorney for Loevy & Loevy in Chicago who focuses on FOIA cases (and was the attorney who secured the release of the Laquan McDonald video), have condemned this portion of the bill. (Topic and his firm have represented the Invisible Institute in previous FOIA lawsuits.)

Marie Dillon, director of policy for the Better Government Association, said in an email that the organization is “alarmed” by the provisions related to transparency. According to Dillon, the Attorney General’s office indicated willingness to work on follow-up amendments in the next legislative session.

Advocates still see room for other improvements in state oversight, including changing the membership of the Board from solely law enforcement and municipal officials to include members of communities affected by police violence.

In a phone interview conducted last fall, attorney and police-reform consultant Carlton Mayers II said he favors a “community-empowered approach” to state-level police oversight that would give impacted community members at least a fifty-percent voting bloc on the board to ensure their feedback is effective.

“Let’s stop talking about [the Board] in its current form, and let’s talk about the dynamics [the Board] by changing the composition of it,” said Mayers.

Sam Stecklow is a journalist with the Invisible Institute, a nonprofit journalism production studio based in Woodlawn.