SB1011sam001 98TH GENERAL ASSEMBLY

Sen. John J. Cullerton

Filed: 5/27/2014

09800SB1011sam001 LRB098 05271 RLC 60169 a

AMENDMENT TO SENATE BILL 1011

AMENDMENT NO. ______. Amend Senate Bill 1011 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Criminal Procedure of 1963 is amended by adding Article 124C as follows:

(725 ILCS 5/Art. 124C heading new)

ARTICLE 124C. ILLINOIS TRUST ACT.

(725 ILCS 5/124C-1 new)

Sec. 124C-1. Short title. This Article may be cited as the Illinois TRUST Act.

(725 ILCS 5/124C-5 new)

Sec. 124C-5. Preamble and findings.

(a) The State of Illinois is committed to fair and equal treatment of all individuals in the enforcement of its criminal laws and the administration of its criminal justice system.

(b) Local law enforcement agencies rely on the trust of the communities they serve so that all residents will feel safe in reporting crimes and aiding the prosecution of suspects.

(c) The Illinois criminal justice system has become increasingly entangled in enforcement of federal civil immigration laws, and has been used by U.S. Immigration and Customs Enforcement (ICE) as a vehicle for identifying individuals whom that agency can target for detention and removal from the United States.

(d) As documented by the University of Illinois Chicago, entanglement of law enforcement agencies in federal immigration enforcement erodes the public trust that those agencies depend on to secure accurate reporting of criminal activity and to prevent and solve crimes. Community policing efforts are hindered when immigrant residents who are victims of or witnesses to crime, including domestic violence, are less likely to report crime or cooperate with law enforcement out of fear that any contact with law enforcement could result in deportation. Deterred from reporting to or cooperating with local law enforcement, victims or witnesses may never learn about or pursue opportunities for lawful status such as U and T nonimmigrant visas, which are intended in part to encourage people to report crimes.

(e) While several law enforcement agencies in Illinois have distanced themselves from federal immigration authorities through trust-building measures such as not inquiring about immigration status or reporting immigration-related information, information-sharing mechanisms such as the federal "Secure Communities" program and ICE access to the State Law Enforcement Agencies Database System (LEADS) still entangle local law enforcement in immigration enforcement.

(f) Through programs like "Secure Communities", ICE identifies individuals in the criminal justice system against whom it can issue immigration detainers. Immigration detainers are voluntary requests from ICE to law enforcement agencies to hold individuals in local jails for additional time beyond when they would be eligible for release in a criminal matter. While an immigration detainer requests that a law enforcement agency detain an individual for civil immigration purposes, the detainer does not confer civil immigration arrest authority, and indeed State and local law enforcement have no arrest authority for civil immigration matters.

(g) Between October 2011 and August 2013, ICE transmitted 8,100 immigration detainers to police departments, jails, prisons, and other institutions in Illinois. Of these, 5,629 (69%) targeted individuals with no criminal convictions, and another 1,809 (22%) targeted individuals convicted of only minor offenses. Nationwide, roughly half of all immigration detainers have targeted individuals with no criminal convictions. Despite explicit guidance issued by ICE in December 2012 restricting issuance of detainers, this disturbing pattern of targeting non-criminals has persisted, according to ICE data analyzed by the Transactional Records Access Center at Syracuse University.

(h) The State of Illinois notified ICE on May 4, 2011, of its withdrawal from the Memorandum of Agreement under which the State participated in the "Secure Communities" program. In issuing its notice, the State cited concerns over the high percentage of individuals whom ICE was arresting and deporting under the program who had no criminal history. ICE responded on August 5, 2011, by voiding the State's Memorandum of Agreement and compelling the State to participate in "Secure Communities." ICE ultimately activated the program throughout Illinois as of January 22, 2013.

(i) As of November 30, 2013, nearly half (48%) of all individuals from Illinois whom ICE has removed under "Secure Communities" either have no criminal convictions or only a single misdemeanor offense. More than 15% have never been convicted of any offense. Nationwide, 20% of individuals removed by ICE under "Secure Communities" have no criminal convictions, and another 30% have convictions only for minor offenses.

(j) By subjecting individuals with no criminal history or only minor convictions to removal, ICE's use of immigration detainers and programs like "Secure Communities" disrupt families and communities, encourage racial and ethnic profiling, burden taxpayers, and pose harm to our State as a whole.

(k) Unlike criminal detainers, which comply with fundamental protections under the Fourth Amendment to the U.S. Constitution and Article I, Section 6 of the Illinois Constitution, immigration detainers do not require a showing of probable cause or any of the other procedural protections that undergird the right to be free from unreasonable searches or seizures. Detainers can result in persons being held and transferred into immigration detention without regard to whether their arrest is the result of a mistake, or merely a routine practice of questioning individuals involved in a dispute without pressing charges. As a result, immigration detainers have erroneously been placed on United States citizens and on immigrants who are not deportable.

(l) State and local law enforcement agencies are not reimbursed or indemnified by the federal government for the full cost of responding to a detainer, which can include, but is not limited to, extended detention time, the administrative costs of tracking and responding to detainers, and costs or liability incurred as a result of wrongful detainers. In particular, law enforcement agencies must pay for the time during which immigrants, who are deterred from posting bond by immigration detainers, remain in law enforcement custody while awaiting their day in court. Several recent federal court decisions have ruled that local law enforcement agencies that hold individuals solely based on immigration detainers can be held liable for violations of the individuals' constitutional rights. All of these costs are borne by local taxpayers.

(m) Like immigration detainers, ICE administrative warrants also fail to comply with the same fundamental protections under the Fourth Amendment to the U.S. Constitution and Article I, Section 6 of the Illinois Constitution. As with immigration detainers, administrative warrants are voluntary requests that generally do not confer arrest authority on State and local law enforcement, and there is no independent State arrest authority for civil immigration matters under an administrative warrant. Accordingly, there is no State or local law enforcement arrest authority for the majority of immigration administrative warrants in the FBI's National Crime Information Center (NCIC) database, which local law enforcement agencies routinely use. As with immigration detainers, State and local law enforcement are not reimbursed for the significant costs of honoring administrative warrants. Administrative warrants sow the same distrust of law enforcement and result in similar societal costs as immigration detainers.

(n) It is the intent of the Illinois General Assembly that this Act shall not be construed as providing, expanding, or ratifying the legal authority for any State or local law enforcement agency to detain an individual on an immigration detainer or administrative warrant.

(725 ILCS 5/124C-10 new)

Sec. 124C-10. Definitions.

"Administrative warrant" means an immigration warrant of arrest, order to detain or release aliens, notice of custody determination, notice to appear, removal order, warrant of removal, or any other document, issued by an immigration agent that can form the basis for an individual's arrest or detention for a civil immigration enforcement purpose. This definition does not include any warrants issued by a criminal court upon a determination of probable cause and in compliance with the requirements of the Fourth Amendment to the U.S. Constitution and Article I, Section 6 of the Illinois Constitution.

"Certification" means any law enforcement certification or statement required by federal immigration law including, but not limited to the information required by 8 U.S.C. § 1184(p) and 8 U.S.C. § 1184(o), including current USCIS Form I-918, Supplement B and USCIS Form I-914, Supplement B, respectively, and any successor forms.

"Certifying agency" means a State or local law enforcement agency, prosecutor, judge, or other authority, that has responsibility for the investigation or prosecution of criminal activity. This definition includes agencies that have criminal investigative jurisdiction in their respective areas of expertise, including but not limited to the Illinois Department of Labor, Illinois Department of Child and Family Services, the Illinois Department of Human Services, and the Illinois Workers' Compensation Commission.

"Citizenship or immigration status" means all matters regarding questions of citizenship of the United States or any other country, the authority to reside in or otherwise be present in the United States, the time or manner of a person's entry into the United States, or any other civil immigration matter enforced by the Department of Homeland Security or other federal agency charged with the enforcement of civil immigration laws.

"Contact information" means home address, work address, telephone number, electronic mail address, social media contact information, or any other means of contacting an individual.

"Criminal activity" means any activity defined under Chapter 720 of the Illinois Compiled Statutes or any similar activity under any city or municipal code regardless of whether the activity resulted in a prosecution.

"Eligible for release from custody" means that the individual may be released from custody because one of the following conditions has occurred:

(1) All criminal charges against the individual have been dropped or dismissed.

(2) The individual has been acquitted of all criminal charges filed against him or her.

(3) The individual has served all the time required for his or her sentence.

(4) The individual has posted a bond.

(5) The individual is otherwise eligible for release under State or local law, or local policy.

"Immigration agent" shall mean an agent of U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, any individuals authorized to conduct enforcement of civil immigration laws under 8 U.S.C. § 1357(g) or any other federal law, other federal agents charged with enforcement of civil immigration laws, and any successors.

"Immigration detainer" means a document issued by an immigration agent to a federal, State, or local law enforcement agency that requests that the law enforcement agency provide notice of release or maintain custody of the individual based on an alleged violation of a civil immigration law, including detainers issued under Section 287.7 or Section 236.1 of Title 8 of the Code of Federal Regulations, and on DHS Form I-247 "Immigration Detainer – Notice of Action".

"Law enforcement agency" means an agency in this State charged with enforcement of State, county, municipal, or federal laws, or with managing custody of detained persons in this State, and includes municipal police departments, sheriff's departments, campus police departments, the Illinois State Police, and the Illinois Department of Juvenile Justice, but does not include the Illinois Department of Corrections.

"Law enforcement official" means any officer or other agent of a State or local law enforcement agency authorized to enforce criminal statutes, regulations, or local ordinances or to operate jails or juvenile detention facilities or to maintain custody of individuals in jails or juvenile detention facilities, but does not include law enforcement officials operating or maintaining custody of individuals in State prisons through the Illinois Department of Corrections.

"Victim of criminal activity" means any individual who has reported criminal activity to a law enforcement agency or certifying agency, or has otherwise participated in the detection, investigation, or prosecution of criminal activity, who has suffered direct or proximate harm as a result of the commission of any criminal activity and may include, but may not be limited to, an indirect victim, regardless of the direct victim's immigration or citizenship status, including the spouse, children under 21 years of age and, if the direct victim is under 21 years of age, parents, and unmarried siblings under 18 years of age where the direct victim is deceased, incompetent, or incapacitated. Bystander victims shall also be considered. More than one victim can be identified and provided with certification depending upon the circumstances. For purposes of this definition, the term "incapacitated" means unable to interact with law enforcement agency or certifying agency personnel as a result of a cognitive impairment or other physical limitation, or because of physical restraint, disappearance or age, such as minors.

(725 ILCS 5/124C-15 new)

Sec. 124C-15. Policy for responding to immigration detainers and administrative warrants.

(a) There being no legal authority under which the federal government may compel an expenditure of State or local law enforcement agency resources to comply with an immigration detainer or administrative warrant, no law enforcement agency may detain or continue to detain any individual on the basis of any immigration detainer or administrative warrant, or otherwise comply with an immigration detainer or administrative warrant, after that individual becomes eligible for release from custody.

(b) No individual subject to an immigration detainer or administrative warrant shall be denied bail solely on the basis of that immigration detainer or administrative warrant. Nothing in this subsection (b) may be construed to undermine the authority of a court to make a bail or bond determination according to its usual procedures.

(c) Except as provided in this subsection, no law enforcement official or other law enforcement agency personnel shall:

(1) give any immigration agent access to any individual or allow any immigration agent to use law enforcement agency facilities for investigative interviews or other purposes;

(2) provide any detainee, inmate, or booking lists to an immigration agent; or

(3) expend their time responding to immigration agent inquiries or communicating with immigration agents regarding any individual's incarceration status, release date, or contact information. Nothing in this subsection shall be construed as restricting the authority of any law enforcement official or law enforcement agency to conduct any of the activities listed in this subsection if an immigration agent presents a valid and properly issued criminal warrant or if the law enforcement official has a legitimate law enforcement purpose that is not related to the enforcement of immigration laws.

(d) There being no legal authority under which the federal government may compel an expenditure of State or local resources to comply with an immigration detainer or administrative warrant, or facilitate any other non-criminal immigration enforcement, there shall be no expenditure of any law enforcement agency resources or effort by law enforcement agency personnel for this purpose, except as expressly provided under this Act.

(e) Nothing in this Section shall be construed as restricting any expenditure or activity necessary to the performance by the State, any local unit of government, any law enforcement or other agency, officer, employee, or agent thereof of any obligations under any contract between the State, the local unit of government, or the agency and federal officials regarding the use of a facility to detain individuals in federal immigration removal proceedings.

(f) Notwithstanding subsection (e) of this Section, no State, local unit of government, or agency shall be permitted to contract with a private for-profit vendor or contractor for the provision of services (other than ancillary services) relating to the operation or management of a facility to detain individuals in federal immigration removal proceedings, or to approve any permits, zoning changes, or other measures required for, or to otherwise facilitate, the construction, operation, or management of the facility.

(725 ILCS 5/124C-20 new)

Sec. 124C-20. Arrests based on certain information prohibited. No law enforcement official shall stop, arrest, search, detain, or continue to detain a person based solely on an administrative warrant entered into the Federal Bureau of Investigation's National Crime Information Center database, or any successor or similar database maintained by the United States.

(725 ILCS 5/124C-25 new)

Sec. 124C-25. Agreements to enforce federal civil immigration laws. No law enforcement agency shall enter into an agreement under 8 U.S.C. § 1357(g) or any other federal law that permits State or local governmental entities to enforce federal civil immigration laws.

(725 ILCS 5/124C-30 new)

Sec. 124C-30. Certifications for victims of criminal activity.

(a) A certifying agency shall execute any certification requested by any victim of criminal activity or representative thereof including, but not limited to, the victim's attorney, accredited representative, or domestic violence service provider, within 90 days of receiving the request. In any case in which the victim seeking certification is in federal immigration removal proceedings, the certifying agency shall execute the certification no later than 14 days after the request is received by the agency. In any case in which the victim or the victim's children would lose any benefits under 8 U.S.C. § 1184(p) and 8 U.S.C. § 1184(o) by virtue of having reached the age of 21 years within 90 days after the certifying agency receives the certification request, the certifying agency shall execute the certification no later than 14 days before the date on which the victim or child would reach the age of 21 years. Requests for expedited certification must be affirmatively raised by the victim.

(b) If a certifying agency fails to certify within the time limit prescribed in subsection (a) of this Section or, a victim of criminal activity disputes the content of a certification, then the victim of criminal activity may bring an action in circuit court to seek certification or amend the certification. Nothing in this subsection (b) shall in any way limit a State or local judge's authority to execute a certification outside the procedures established by this Section.

(c) The head of each certifying agency shall designate an agent, who performs a supervisory role within the agency, to perform the following responsibilities:

(1) respond to requests for certifications;

(2) provide outreach to victims of criminal activity to inform them of the agency's certification process; and

(3) keep written records of all certification requests and responses, which shall be reported to the Illinois TRUST Act Compliance Board on an annual basis.

(d) All certifying agencies shall develop a language access protocol for non-English speaking victims of criminal activity.

(e) A certifying agency shall reissue any certification within 90 days of receiving a request from the victim of criminal activity or representative thereof including, but not limited to, the victim's attorney, accredited representative, or domestic violence service provider.

(f) Unless otherwise required by applicable federal law, at no time shall a certifying agency disclose information regarding the citizenship or immigration status of any victim of crime activity who is requesting a certification unless required to do so by legal process or unless the certifying agency has written authorization from the victim or, if the victim is a minor or is otherwise not legally competent, by the victim's parent or guardian.

(g) The Illinois Law Enforcement Training Standards Board, established by the Illinois Police Training Act shall adopt rules for minimum standards for a course of study on cultural sensitivity training, including training on U and T nonimmigrant visas among other remedies for immigrant survivors of criminal activity. Each law enforcement agency's continuing education program shall provide to each law enforcement official continuing education concerning the U and T nonimmigrant visas and continuing education concerning cultural diversity awareness.

(h) All certifying agencies not subject to the training requirements described in subsection (g) of this Section shall adopt a training program on U and T nonimmigrant visas and other remedies for immigrant survivors of criminal activity.

(725 ILCS 5/124C-35 new)

Sec. 124C-35. Oversight. The Governor shall appoint an Illinois TRUST Act Compliance Board within 90 days of this Act becoming law. This Board shall consist of 5 members, serving terms of 3 years, representing immigrant communities, law enforcement, and other entities concerned with public safety and effective cooperation between immigrants and local police. This Board shall be charged with all of the following responsibilities:

(1) monitoring compliance with this Act;

(2) training of law enforcement officers and others about this Act;

(3) dissemination of information about this Act to affected communities and the general public;

(4) establishing mechanisms by which the public can report concerns and recommendations regarding implementation of the Act;

(5) identifying implementation issues and other trends, and providing recommendations to the Governor and the Attorney General for addressing these issues;

(6) conducting research regarding sharing of immigration and citizenship status information and personally identifiable information, between law enforcement agencies and Immigration and Customs Enforcement, including but not limited to research regarding:

(A) requests for or investigations of immigration and citizenship status information by law enforcement agencies and officials,

(B) sharing of information and data posted in the Illinois Law Enforcement Agencies Database System (LEADS) or any other State administered database to which immigration agents have access,

(C) immigration agents' use of the LEADS database or any other State administered database, and

(D) the impact of the requests, investigations, and sharing and use of information on relations between law enforcement agencies and immigrant communities;

(7) conducting additional research as may be necessary, including but not limited to requesting and disseminating data from law enforcement agencies relevant to this Act and this Act's impact on law enforcement agencies, police-community relations, affected communities, and the State overall; and

(8) any other responsibilities relating to this Act as the Board may identify.

(725 ILCS 5/124C-40 new)

Sec. 124C-40. Private right of action.

(a) Any person who resides in this State may bring an action in circuit court to challenge any law enforcement official or agency for failure to fully comply with this Act. If there is a judicial finding that a law enforcement official or agency has violated this Act, the Court shall order that the law enforcement official or agency pay a civil penalty of not less than $1,000 and not more than $5,000 for each instance that the law enforcement official or agency has violated this Act.

(b) The court shall collect the civil penalty prescribed in subsection (a) of this Section and remit the civil penalty to the Crime Victim Services Division of the Office of the Attorney General for use in its programs to assist victims of crime.

(c) The court may award court costs and reasonable attorneys' fees to any person who prevails by an adjudication on the merits in a proceeding brought under this Section.

(d) Except in relation to matters in which a law enforcement officer is adjudged to have acted in bad faith, a law enforcement officer shall be indemnified by the law enforcement agency for reasonable costs and expenses, including attorneys' fees, incurred by an officer in connection with any action, suit or proceeding brought under this Section in which the officer may be a defendant by reason of the officer being or having been a member of the law enforcement agency.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 99. Effective date. This Act takes effect upon becoming law.".