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Expansion of program that gives break to first-time gun offenders awaits Gov. J.B. Pritzker’s signature

The Illinois State Capitol in Springfield on Tuesday, April 18, 2023. (Brian Cassella/Chicago Tribune/TNS)

With some Republican support, Illinois lawmakers approved a measure to expand and indefinitely extend a probation program for first-time offenders charged with illegally possessing a gun.

A pilot program the Democratic-controlled General Assembly passed six years ago was limited to defendants under 21 with no prior convictions for violent crimes and was set to end in January. Under the new legislation, the age limit would be dropped, the probationary period would be shortened and the program would continue indefinitely.

“It’s one thing to have someone who’s 18 years old being caught with a firearm versus somebody who’s 55 or 60 years old, and so it just gives the judge and the prosecutor that discretion to figure out what program works best for them,” freshman Democratic state Rep. Kevin Olickal of Skokie, the main House sponsor of the legislation, said in an interview.

While the legislation is the latest example of the Democratic supermajority’s progressive stance on criminal justice, it attracted Republican support in part because of fears that the state’s strict gun laws, including a ban on many high-powered weapons, which is now tied up in court, could ensnare otherwise law-abiding citizens.

There was no debate over the bill on the House floor when it was called during the early morning hours of May 27, moments after lawmakers voted to pass a $50.6 billion budget. The bill breezed through the House 98-6, with a number of Republicans voting yes. It was a tougher sell in the Senate two days earlier, passing 37-16 with just three Republicans siding with Democrats.

One of those Republicans, state Sen. Andrew Chesney of Freeport, said the prospect some people could be “unfairly targeted for, in my view, unconstitutional registration of firearms, a lack of a (firearm owner’s identification) card, perhaps a misunderstanding or delays in the concealed carry permitting process” led him to support the program.

“For all those reasons for nonviolent offenders, this gives the state’s attorneys some discretion and also gives the courts discretion for what are otherwise good people that get caught into these unexpected predicaments as it relates to our very unconstitutional gun laws,” Chesney said.

GOP state Sen. Seth Lewis of Bartlett, who also voted for the bill, said “continued changes” to the state’s gun control laws could result in law-abiding gun owners getting charged with gun crimes they’re not aware of.

“This bill provides our state’s attorneys the opportunity to demonstrate leniency when the situation calls for it,” Lewis said.

Under the bill, participants in the program would no longer be required to submit to a drug test, or show they’re seeking employment, enrolling in school or performing community service. Courts could still impose those requirements if necessary.

Senate Republican Leader John Curran of Downers Grove, a no vote, said he is against relaxing the program’s conditions.

“When we’re talking about gainful employment, getting your high school diploma or GED, these things take time and we’re trying to teach good societal productive habits,” Curran, a former Cook County assistant state’s attorney, said in an interview.

Opponents also have raised concerns about the lack of data showing whether the program has been effective since it was implemented.

During the Senate floor debate, state Sen. Ram Villivalam, the bill’s main sponsor in the chamber, cited support from the Illinois State Rifle Association and the Illinois State’s Attorneys Association.

He also pointed to a Loyola University Chicago study showing that just 7% of defendants in Illinois who were released from prison for illegal firearm possession during a four-year period in the 2010s were rearrested within three years for using a gun to commit a violent crime, which under Illinois law is an offense with bodily harm or threats against a victim.

Despite that, Republican state Sen. Steve McClure, of Springfield, said there is a lack of data to evaluate the program, which he suggested is too lenient on criminals.

“Wouldn’t it make sense to, like, study the program and have the numbers here to talk about success? Wouldn’t that make sense, like, in any other field?” said McClure, a former Sangamon County assistant state’s attorney. “Can you imagine going … and saying, ‘Well, I have no clue how this program’s been working but gun violence is really bad, but let’s just get people that are caught with guns a break’?”

Under the legislation, which has to be signed by Democratic Gov. J.B. Pritzker before taking effect, the probationary program would last anywhere from six months to two years, instead of the current 18 months to two years.

The gun charges filed against participants who successfully complete the program are then dropped.

Participants can only go through the program once. The gun charge they face must not be any more serious than a Class 4 felony, the lowest felony level.

According to the Loyola study, during an 11-year-period ending in the late 2010s, 34% of gun offense convictions in Illinois were Class 4 felonies. The majority were for more serious felony charges, and included defendants with at least one prior felony gun conviction.

In Cook County, over a seven-year period that ended in the mid-2010s, the study shows people sentenced to probation for a Class 4 firearm possession felony weren’t any more or less likely to commit a violent crime than people convicted of the same firearm-related felony who served time in prison.

Cook County officials couldn’t provide statistics showing how often it has used the first-time gun offender program. But State’s Attorney Kim Foxx’s office said it supports the expansion of the program and looks forward “to working with all our partners to offer those who find themselves in the criminal justice system for the first time an opportunity to change the trajectory of their lives.”

Republican DuPage County State’s Attorney Robert Berlin said he can think of only one case in the five years since the program took effect where his office has used it.

But he said the new legislation could provide a break for otherwise law-abiding gun owners caught violating the state’s new assault weapon and high-capacity ammunition magazine ban, particularly the section that says owners must register any of the banned guns they already have with the Illinois State Police.

“This (new legislation) gives us the ability to hold them accountable but not leave them with a permanent criminal record if they complete the program,” said Berlin. “So, it’s a question of fairness.”

Olickal said the legislation would allow each county in Illinois to decide how to use the first-time offender program based on their resources. He rejected the suggestion that policies such as this one make “Democratic-run cities or states” or “progressive prosecutors” look weak on crime.

“For the longest time, even with the implementation of progressive policy and criminal justice reform, we were seeing a decline in violent crime … until COVID hit,” said Olickal. “So there’s obviously something else that’s going on here that has led to this spike in some crime statistics.”

Villivalam agreed, saying it’s not “appropriate or correct to reduce the issue of gun violence that we’ve been facing to this one bill.”


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