The Commission is committed to fairly and accurately investigating claims that torture was used to obtain confessions leading to criminal convictions and, where warranted, providing those claimants a means of relief. It is also committed to rejecting meritless claims where convictions were soundly reached without use of a coerced confession.
During the 1980's and 1990's, there were a series of allegations that confessions had been coerced by Chicago Police Detectives under the command of Chicago Police Commander Jon Burge by using torture. Burge was suspended from the Chicago Police Department in 1991 and fired in 1993 after the Police Department Review Board ruled that he had in fact used torture.
Between 2002 and 2006, a Cook County Special Prosecutor, retired Justice Edward Egan, investigated these allegations. Special Prosecutor Egan concluded that Burge and officers under his command had likely committed torture, but that any crimes were outside the state statute of limitations and could not be prosecuted.
In 2008, the U.S. Attorney brought a federal indictment, charging Jon Burge with perjury and obstruction of justice, for denying that he had participated in or known about torture. Burge was convicted by a jury in 2010, and sentenced to 4½ years in prison.
In 2016, the legislature amended the Act so that others allegedly tortured by officers not connected to Jon Burge could also file a claim.
Q & A
- What Is the Commission
- What Can the Commission Do
- Which Cases Can the Commission Hear
- What Cases Will Be Given Priority
- Are new claims still being accepted?
- What Is the Commission Likely to Do in Each Case
- What Can a Claimant Do if the Commission Denies the Claim
- Who can file claims with the Commission?
- I was tortured, but my claim doesn't have anything to do with Jon Burge or his officers.
- In what order is the Commission deciding cases?
- What relief can the Commission give?
- Does the Commission have to be sure that torture occurred before it makes a referral to Court?
- What if I disagree with the Commission's decision?
- Are the Commission's determinations binding on the Court?
- What kind of waiver do I have to sign to proceed with the Commission?
- I think I have newly discovered evidence or another reason to file a new post-conviction proceeding? Can I go before the commission and also proceed in court with a post-conviction petition?
- I heard that Judge Biebel appointed a Special Master for Burge cases. How does that affect the Commission?
- I heard the Commission has had its funding cut off by the State. Is it able to complete its business?
- I heard that a new reparations law was passed. Can I still apply?
- What rights does a crime victim have?
- How do I get in touch with the Commission?
What Is the Commission
Following the release of Special Prosecutor Egan's report, legislative and community efforts intensified to provide new hearings to persons who claimed to have been tortured by Commander Burge and his subordinates. The 2009 passage of the TIRC Act, whose lead sponsor was Senator Kwame Raoul, was a result.
The Act provides for an eight member commission, chaired by a former judge. Commissioners were appointed in 2010, and initial staff was hired in early 2011. The Commission drafted and approved initial rules, which went into effect in August, 2011.
The Commission began receiving claims in April 2011, and continued accepting them until August 10, 2014,the filing deadline specified by the Act. In 2016, the legislature re-opened the filing period through August 10, 2019.
What Can the Commission Do
The Commission is authorized by the Act to gather evidence about a claim of torture occurring in Cook County, and then determine whether there is sufficient credible evidence of torture to merit judicial review. To fall within the Commission's authority to act, or 'jurisdiction,' the claim must be that an officer coerced a confession that was used against the defendant to obtain his conviction. 775 ILCS 40/5(1).
To evaluate a claim, the Commission's staff can serve subpoenas to compel the testimony of
witnesses and the production of evidence, administer oaths, and use any measure provided for in Illinois civil and criminal codes of procedure. The Commission can also, if it chooses, conduct an evidentiary hearing before the full Commission -- but it is not required to do so.
After the Commission has investigated a matter, it is authorized by the Act to perform three
types of determinations:
- It can find by a preponderance of the evidence that there is sufficient credible evidence of
torture to merit judicial review. If it does, it can issue a report on the claim and file that report
with the Chief Judge of Cook County via the Clerk of the Circuit Court.
- The Commission can determine that the preponderance of the evidence does not
demonstrate credible evidence of torture. If the Commission reaches that finding, the claimant
has the right to file a petition for administrative review of the Commission's decision with the Circuit
Court within 35 days.
- The Commission can also choose to refer evidence of criminal acts, professional misconduct
or other wrongdoing to appropriate authorities, and to recommend changes in the law to the General
If a matter is referred to court, the Circuit Court will review the case pursuant to the applicable provisions of the Post-Conviction Hearing Act and the TIRC Act. Accordingly, the Circuit Court may order an evidentiary hearing in order to determine whether relief (e.g.: suppression of the statement or a new trial) is warranted.
Under the Illinois Supreme Court's decision in People v. Wrice, 962 N.E.2d 934 (Ill. 2012) a judicial finding by a Circuit Court judge that a confession was coerced by torture would likely lead to a new trial for the defendant, if the State's Attorney (or, in some cases, a Special State's Attorney) chooses to seek a new trial.
A new trial does not automatically mean that a claimant would be released. If the State tries the claimant again, each side would have the opportunity to call witnesses, and the court would have to decide whether any of the evidence given at the prior trial would be admissible under Illinois law.
Which Cases Can the Commission Hear
Prior to 2016, the Commission was only authorized to accept claims of torture relating to former Chicago police Commander Jon Burge. On July 29, 2016, the governor signed P.A. 99-688, which re-opened the claim period through August 10, 2019 and allowed the Commission to investigate any claim of torture in Cook County in which the torture was used to obtain an incriminating statement that was used to convict the tortured person.
What Cases Will Be Given Priority
Prior to July 29, 2016, the Act prescribed that certain cases were to be given priority. P.A. 99-688 removed the mandatory priority provision. The Commission then instituted Administrative Rules creating priority factors for claims where A) The Claimant is incarcerated solely on his conviction in which he alleges torture, B) the claim involves Jon Burge or officers formerly under Burge's command, and C) the oldest claims filed. The Commission may also consider other priority factors, and no one factor is dispositive. See 2 Ill. Admin. 3500.375(c).
Are new claims still being accepted?
No. Under P.A 99-688, the TIRC Act was amended to extend the filing deadline through August 10, 2019.
What Is the Commission Likely to Do in Each Case
While the Commission is not required to conduct each investigation identically, it is likely to take certain steps in most of the cases in which it conducts a full investigation. These steps include:
- Checking to see if the file is complete and within its jurisdiction.
- Obtaining relevant court records and evidence, if available.
- Checking to locate victims of a crime and/or their family members, notifying them when a formal nquiry has been opened, explaining to them their rights in the proceedings, and notifying them when any proceedings related to their case are scheduled to be discussed before the Commission.
- Interviewing the defendant/claimant.
Attempting to contact some or all of the persons who may have contemporaneous knowledge of claims of torture, including
- persons identified by the claimant;
- the claimant's public defender or other lawyer;
- the police officers who are accused of torture or were present; and
- the Assistant State's Attorneys who took the statement and/or participated in any initial hearing.
These matters will be reviewed by staff and the record will be provided to the Commission, along with a recommendation. In some cases, the review may be conducted by pro bono outside counsel, acting under direction of the staff.
What Can a Claimant Do if the Commission Denies the Claim
If the Commission finds by a preponderance of the evidence that there is insufficient credible evidence of torture, or if it finds that it does not have jurisdiction over a matter, it will issue an order with its ruling. As noted above, the claimant has the right to file a petition in the Circuit Court under the
state's Administrative Review Law to contest that ruling. The claimant should act within 35 days under 735 ILCS 5/3-103 to file such a petition, if appropriate.
Who can file claims with the Commission?
The law that created the Commission is the Illinois Torture Inquiry and Relief Commission Act (the "TIRC Act"). That law said that a claim could be filed before the Commission by anyone who had a "claim of torture." A claim could also be filed by any court, person, or agency on behalf of someone else who had a "claim of torture." The law defines an eligible "claim of torture:"
"Claim of torture" means a claim on behalf of a living person convicted of a felony in Illinois asserting that he was tortured into confessing to the crime for which the person was convicted and the tortured confession was used to obtain the conviction and for which there is some credible evidence related to allegations of torture occurring within a county of more than 3,000,000 inhabitants.
The claim must therefore be made by or on behalf of:
- a living person,
- convicted in the Cook County Courts of a felony in Illinois, and
- who claims he (or she) was tortured into confessing to the crime of conviction.
- The tortured confession must have been used to obtain the conviction, and
- there must be some credible evidence of torture.
All five of the above requirements must be met.
I was tortured, but my claim doesn't have anything to do with Jon Burge or his officers.
Although the law originally required a nexus to Jon Burge, that requirement was removed by P.A. 99-688 on July 29, 2016.
In what order is the Commission deciding cases?
Before July 29, 2016, the TIRC Act required cases to be investigated and decided in a certain order. Public Act 99-688 removed that mandatory order. The Commission created Administrative Rules that dictate the order in which claims are taken up, with priority given to claims of those remaining incarcerated, claims related to Jon Burge and older claims.
What relief can the Commission give?
Explaining this point is somewhat complicated, because of Illinois' complicated system for providing post-conviction relief to persons convicted of crimes.
- Convicted persons normally have a brief period in Illinois to file a post-conviction remedy, absent exceptions that show a violation of constitutional rights, such as newly discovered evidence or proof of actual innocence. If the petition is brought later, the convicted person must convince the court that he or she is entitled to a full hearing before the court will hold a hearing to take evidence of a violation.
- If a claim is brought to the Commission, TIRC investigates the cases brought before it to see if there is credible evidence of torture that merits judicial review. The Commission can investigate the case and refer the claim even if the claimant has not met normal procedural deadlines.
- If a case is referred to the Circuit Court by TIRC, it normally gives the claimant an automatic opportunity for a full hearing before a judge. If the Circuit Judge decides that it is likely that a confession was coerced, the judge can award a new trial to the claimant.
- The Commission also has the discretion to refer evidence of criminal acts, professional misconduct, or other wrongdoing to the appropriate authority.
The Commission cannot award any monetary damages. It's main responsibility is to recommend a new hearing when it refers a matter to the Circuit Court.
Does the Commission have to be sure that torture occurred before it makes a referral to Court?
No. If 5 or more of the 8 voting members of the Commission conclude by a preponderance of the evidence that there is sufficient evidence of torture to merit judicial review, the case shall be referred to the Chief Judge of the Circuit Court. The Commission interprets this language to be the rough equivalent of a "probable cause" determination. The Commission does not have to decide it is more likely than not that torture occurred, but it must decide that there is sufficient credible evidence of torture for a claimant to deserve his or her day in court. The Illinois Appellate Court confirmed in March of 2016 that the Commission’s threshold for referring a case to court for a hearing is lower than deciding that torture occurred. See paragraph 95 of the appellate decision at 2016-3-4-Christian-Appellate-opinion.1.0.pdf.
What if I disagree with the Commission's decision?
The decision of the Commission is final, but it is possible that it may be subject to court review. If you file a claim and the Commission rules against you, you have a very limited time to file a petition for Administrative Review with the Circuit Court. You should immediately consult an attorney.
Are the Commission's determinations binding on the Court?
The Illinois Appellate Court has ruled that Commission determinations are not binding on the Courts. That decision is available at 2016-3-4-Christian-Appellate-opinion.1.0.pdf. The Court found that Commission determinations are not final judgments that fix absolutely and finally the rights of the parties. Instead, the Court found that a Commission disposition “simply [sends] the case onto its next step in the circuit court."
What kind of waiver do I have to sign to proceed with the Commission?
The TIRC Act requires that a claimant must waive his or her right against self-incrimination in order for the Commission to conduct a formal inquiry into a claim of torture. The claimant must agree to provide full disclosure regarding inquiry requirements of the Commission. The waiver does not apply to matters unrelated to a convicted person's claim of torture. In certain cases, the Commission also requires a waiver allowing the Commission to talk to a claimant’s trial or appellate counsel about claims of torture that were made to such attorneys when those proceedings were conducted, and why those claims may or may not have been formally made in court filings and testimony. Waivers to access medical records and certain court records may also be required.
The Commission does not routinely ask claimants whether they committed the crime for which they were convicted, nor are claimants asked to give permission to their trial or appellate attorneys to reveal discussions regarding the underlying crime. But the Commission reserves the right to ask questions related to a convicted person's claim of torture in some cases that could potentially be incriminating.
I think I have newly discovered evidence or another reason to file a new post-conviction proceeding? Can I go before the commission and also proceed in court with a post-conviction petition?
Yes. Both remedies are independent.
I heard that Judge Biebel appointed a Special Master for Burge cases. How does that affect the Commission?
Judge Biebel (now retired from the bench) appointed Dean David Yellen of the Loyola Law School as a Special Master. The appointment of a Special Master by Judge Biebel does not affect either TIRC's processes, or the Court's. The Special Master's sole task was to search for certain defendants who claimed they had been tortured by Jon Burge or his officers. Once those persons were identified, Judge Biebel and his successors appointed lawyers for those defendants.
The Special Master has concluded identification of eligible defendants.
I heard the Commission has had its funding cut off by the State. Is it able to complete its business?
For a period in 2012-13, the Commission did not receive funding from the state government. Funding was restored in 2013, and the Governor's Office has committed to providing the Commission with at least the same, if not more funding, for the forseeable future.
I heard that a new reparations law was passed. Can I still apply?
No, The City of Chicago enacted a reparations ordinance on May 6, 2015. The deadline to apply for reparations passed on August 4, 2015. That ordinance is entirely separate from the Commission, and does not affect the Commission's work. Information about the City’s reparations ordinance can be found on its website, at http://www.cityofchicago.org/city/en/depts/dol/supp_info/burge-reparations-information.html.
What rights does a crime victim have?
Under the TIRC Act, the victim of the crime (or if the victim of the crime is deceased, the next of kin of the victim, which shall be the parent, spouse, child, or sibling of the deceased victim) has the right to present his or her views and concerns throughout the Commission's investigation. The victim is permitted to attend proceedings otherwise closed to the public, subject to any limitations imposed by this Act, and subject to Section 2(c)(14) of the Open Meetings Act.
How do I get in touch with the Commission?
You can write to the Commission at:
Torture Inquiry and Relief Commission
555 W. Monroe St.
Chicago, IL 60661