State’s Attorney’s Felony Review Bypass Program Hinders Due Process and Gives Police Power To File Felony Gun Possession Charges
In January, Cook County State’s Attorney O’Neill Burke began piloting a new program in the Chicago Police Department’s (CPD) 7th District (Englewood), changing the rules for how gun possession felony charges are filed. The program has now been expanded to the CPD’s 5th District (Calumet), which is inclusive of Pullman, Roseland, and other neighborhoods. These districts cover neighborhoods that are over 90% Black. The Felony Review Bypass Program effectively allows police to charge accused people with a felony based solely on police testimony; the elimination of legal oversight sets a dangerous precedent for due process rights in Cook County and could increase racial disparities in incarceration.
In Cook County, there are multiple pathways for how criminal offenses transition from initial arrest to a formal criminal charge. The path a criminal case takes depends primarily on the severity of the charge:
For most misdemeanors, relatively minor charges that are less likely to result in incarceration, a law enforcement officer can file a charge that goes straight to court for an arraignment. The arraignment will mostly serve as a formal step in charging the defendant with a crime, not as an assessment of probable cause for the charge. This means the only opportunity for the defendant to make a case for their innocence will be during their criminal trial after they have pleaded not guilty.
For most felonies, more serious cases that have a strong possibility of resulting in incarceration, there are a few additional steps required to file a criminal charge. Most often, law enforcement officers don’t have the power to directly file a felony charge; instead, they must document any evidence they have and present their case to an Assistant State’s Attorney. The Assistant State’s Attorney assesses the case to ensure there is sufficient evidence of the crime and, critically, that the circumstances of the arrest were legitimate. If the Assistant State’s Attorney finds the case to be legitimate, they will file the charges and send the case to court, where a first appearance court and preliminary hearing will be held. The process of an Assistant State’s Attorney reviewing the case is known as felony review. It is important to note that drug possession cases have been allowed to bypass felony review for some time, a practice that has been critiqued by advocates, including Chicago Appleseed.
Once a case moves past the felony review process, a judge will decide whether the defendant will be incarcerated in jail, put on electronic monitoring, or submit to less burdensome conditions while they await their trial. At the preliminary hearing, the prosecution will call a witness to testify (usually a police officer) who will be subject to cross-examination by the defense. Both parties then argue whether there is probable cause to charge the defendant; if the court finds that there is probable cause, the defendant will later be assigned to a judge, where they will be “arraigned” and enter a plea of guilty or not guilty.
The Felony Review Bypass Program creates an exception for how gun possession felony charges can be filed, skipping the felony review process and allowing CPD to file felony gun possession charges without approval from the Cook County State’s Attorney’s Office (CCSAO).
Under this new policy, officers in the 5th and 7th Districts are expected to file gun possession felony charges without the oversight of a legal professional; they only need to report to their on-duty Watch Operation Lieutenant to file the felony charge. This applies to felony gun possession charges, specifically unlawful possession of a weapon (UPW), aggravated UPW, and UPW by someone with a felony conviction. Additional requirements also apply to bypass felony review: (1) No other felony offense must have been committed at the time of the arrest, and (2) the Watch Operation Lieutenant must review the case and determine whether there is probable cause for the arrest and sufficient evidence for the charge, which is usually the work of an Assistant State’s Attorney in other felony cases.
The the Felony Review Bypass Program in place, the CPD takes on what was formerly the responsibility of the CCSAO without the legal expertise of an attorney, making them more likely to file felony charges on shaky legal grounds. Tasking the CPD with reviewing their own arrests for probable cause rather than an independent third party is unlikely to result in meaningful accountability and sets a dangerous expectation for officers. This is especially concerning given that gun possession cases almost always rely on the testimony of police officers for evidence and there are rarely corroborating witnesses; these factors make these kinds of cases uniquely poorly suited to have police file them without legal oversight.
The process of felony review is an opportunity for an Assistant State’s Attorney to consider potential legal challenges to a felony charge. Considerations could include evaluating if there is sufficient evidence that the crime took place, if there was probable cause for the actions taken by law enforcement, or if these actions were constitutional. Without felony review, the immediate next step after arrest for a criminal trial is a first appearance court, where it is decided if the defendant should be detained until their trial. No legal challenges to the charge itself can be brought up during this hearing.
The next is a preliminary hearing, where public defenders are limited in the kinds of legal challenges they can make to a charge, with challenges primarily targeting probable cause. State’s Attorney O’Neill Burke has claimed that “every single one of the bypass cases out of the 7th District has made it through preliminary hearing, which means they are solid cases, which means that is what we would expect from this program.” However, it is extremely rare for a judge to enter a finding of no probable cause in a preliminary hearing, so charges filed on shaky grounds are likely to progress past this stage. In addition, since State’s Attorney O’Neill Burke has failed to update the CCSAO’s felony data dashboard, created by her predecessor Kim Foxx, verifying these claims is significantly more challenging. This lack of data transparency makes it impossible to verify the State’s Attorney’s claims about the success of her Felony Review Bypass Program.
This means that the first opportunity for any lawyer to make a strong legal argument in the defense of the defendant will be at the trial stage, a point most criminal cases never reach because of coercive plea bargain deals. This is not necessarily because they are guilty of the crime; defendants could be at risk of losing their jobs or places of residence, or be unable to provide care to children or other dependents, and they may feel pressured to plead guilty as a plea bargain could help them be released sooner. The median length of a felony case that went to trial between January 2023 and October 2024 was 20 months, so defendants with personal responsibilities that require immediate attention may feel additional pressure to plead guilty. Given that the CCSAO is now seeking pretrial incarceration for all felony gun possession charges alleging certain gun modifications or defaced firearms, many of the people with these charges will be held in jail pretrial, likely for months.
Community organizations and the media have been quick to point out many of the concerns they have with State’s Attorney O’Neill Burke’s Felony Review Bypass Program. At a town hall meeting on April 5th, many Englewood residents, as well as Alderpeople, criticized the program, especially the fact that they were not informed of it before its implementation. She faced further criticism for failing to attend the town hall meeting. One primary concern expressed at the town hall and by journalists is that State’s Attorney O’Neill Burke and the CPD chose to test the program in the CPD’s 7th District of Englewood, a 91% Black neighborhood. Englewood has a history of serving as a testing ground for the CPD and a site of frequent police misconduct. As of April 3rd, the CCSAO and the CPD have expanded the program to include the CPD’s 5th District of Calumet—which covers parts of Washington Heights, Riverdale, West Pullman, Pullman, Roseland, and South Deering—where 91% of the residents are also Black. Because of Chicago’s severe segregation, piloting the program in the 7th and 5th Districts effectively grants Black residents fewer legal protections from police misconduct than White residents.
As it stands, the Felony Review Bypass Program impacts almost exclusively Black Chicagoans and furthers their disproportionate incarceration. Moreover, of all 22 CPD districts, Englewood and Calumet together are home to 27% of the sustained allegations of police misconduct.
State’s Attorney O’Neill Burke has stated she “fully endorse[es] implementing measures to address and prevent misconduct among law enforcement officers.” If she is earnest in this goal, it goes against logic to remove one of the few safeguards against police misconduct in two of the CPD districts where it is the most common. Alongside the implementation of the Felony Review Bypass Program, the CCSAO is no longer sending gun possession cases to the Restorative Justice Community Courts (RJCCs) – including the one located in Englewood. This diversion program has historically served as an alternative to a felony conviction for many who had been arrested for gun possession; now, these felony gun possession cases will be prosecuted with the intent to imprison. Despite the State’s Attorney’s claim that she is “steadfast in [her] commitment to reducing the disproportionate incarceration rates of people of color in Cook County,” these policy choices directly betray that goal.
Given the pushback from community members, scholars, and legal professionals, it is clear that State’s Attorney O’Neill Burke’s Felony Review Bypass Program serves to reduce police and prosecutors’ workload at the expense of meaningful review. While reducing gun violence should certainly remain a goal in Chicago, the Felony Review Bypass Program undermines due process and misplaces power in the hands of the police, without any evidence that it will help reduce violence.
Felony review exists for a reason: It provides the CCSAO an opportunity to strike down false or legally insufficient charges and is a safeguard against police misconduct. Police officers aren’t attorneys; they are unqualified to act as criminal prosecutors, and it is dangerous to treat them as if they are. If State’s Attorney O’Neill Burke takes her campaign promises seriously, she should reinstate felony review in gun possession cases to protect the legal rights of all Chicagoans. Predominantly Black neighborhoods should not be used as testing grounds for new policing or prosecution procedures; the CCSAO should implement randomized selection when possible in future pilots.
Written by Patrick Reyna, Chicago Appleseed intern and undergraduate student at Northwestern University, Maya Simkin, Appleseed Network Fellow, Naomi Johnson, Co-Executive Director, and Austin Segal, Research Manager.