As Chicago-style crime continues to spread across Cook County and collar counties, local state’s attorneys are increasingly worried about a new state law. As of January 1st it would sharply restrict the imposition by judges of cash bail for criminal defendants before trial.
Those involved say that 100 of the state’s 102 county prosecutors are fighting back against what they see as an incursion on judicial discretion and community safety. They will go to the legislature later this year and it appears, maybe to court if that fails. It will be a signal test for Illinois state’s attorneys in counties statewide who want to balance the rights of the accused with the rights of their communities to safe streets and public spaces.
In a recent presentation to the Homer Township Board, Democrat James Glasgow, State’s Attorney of Will County, clarified why lawmakers should not micromanage judges on pretrial bail and detention. He said, “What is bail for? Bail is to protect the public, and victims, and witnesses, and to guarantee the appearance of the offender” in court to answer to charges. “That’s going to be turned on its head if this bill goes into effect.”
End of cash bail in Illinois
House Bill 3653 was sponsored by Democrats and signed by Democratic Governor J.B. Pritzker. Pritzker continues to defend the cash bail provisions, saying last week that, “We do not want someone in jail because they were arrested for a low-level crime like shoplifting to be sitting in jail for months or maybe even years… At the same time, someone who is a wealthy drug dealer, perhaps accused of murder and arrested, can show up with a suitcase full of money and get out of jail.”
One more concerned prosecutor is DuPage County State’s Attorney Robert Berlin. He says the issue is not pretrial release for first-time shoplifters, but the new constraints on how judges can treat defendants who are charged with far more serious crimes.
Berlin tells Wirepoints he and bipartisan colleagues statewide will advocate in the legislature during November and December veto sessions for changes to the controversial “criminal justice reform” bill rammed through in the waning hours of the 2021 lame-duck session. Their target is a portion of that measure, House Bill 3653.
Language specifically outlawing cash bail as of January 1, 2023 is found on page 335 and 336 of the 764-page bill. And Berlin says there are at least two different provisions which seem to leave the door open for preventive detention of high-risk defendants, but effectively may foreclose it. That’s due to what might be called “devil in the details” definitions of certain key terms.
Berlin explains, “There’s categories of offenses, such as all drug offenses – all aggravated DUIs, and all forcible felonies for which you can receive probation, which include robbery, burglary, arson, aggravated battery – where judges have no discretion. They cannot detain defendants in those cases unless they find the state proves the person is a ‘willful flight risk,’” meaning they are “‘planning or attempting to intentionally evade prosecution by concealing one’s self’…Very difficult to prove…That’s our concern.”
Also nettlesome to prosecutors is that the bill’s language quashes consideration of the risk a released defendant may pose to the community at large. Berlin says that under the parts of HB 3653 taking effect in January, some alleged felony perpetrators can be detained on high cash bail before trial. But only if prosecutors can show that the defendant’s pretrial release poses “a real and present threat to the physical safety of a specifically identifiable person or persons.” The catch here is demonstrating a threat to “specifically identifiable person or persons” versus the community at large.
Berlin argues broader community risks not specific to an individual can nonetheless be very real. Yet now these risks would not be grounds for pretrial detention under the new legislative provisions.
“You can have defendants who are a threat to the community because they’re likely to commit other violent crimes, where you may not be able to prove they’re a threat to a specific person. But that doesn’t mean that they’re not a threat…A husband kills his wife…who is he a threat to? Who is the specifically identifiable person? Very hard to say…Certainly he is capable of committing murder. That’s what’s alleged. They could likely be a danger to the community. But we’re going to have a hard time proving danger to a specific identifiable person.”
Glasgow says that when the law goes into effect that in the seven collar counties ringing Cook County, 4,000 or 5,000 prisoners awaiting trial will be released and prosecutors under the new law will be able to seek re-confinement of only about a third of them, and then only for 90 days. He adds the trouble is that current caseloads will prohibit prohibit prosecutors from getting ready for trial within 90 days. He adds, “if I can’t lock up the violent offenders, we’ll have the same situation here” as in Cook County where pretrial release of previously convicted felons who face new charges is common. “When criminals realize there are no boundaries, they are more brazen. They’ll do even more crimes.”
Demanding changes
Regarding restrictions on cash bail before trial, Berlin argues for changes along the lines of 2017 law in New Jersey. The state largely curtailed preventive detention through cash bail but yet retained judicial discretion to use it for high-risk violent suspects in case of specified major crimes “or any other crimes for which the prosecutor believes there is a serious risk that the eligible defendant will pose a danger to any person or the community.” Such as when witnesses get murdered, in Chicago.
If the planned push for amending existing legislation doesn’t work? Legal action supported by county prosecutors may ensue.
Although some other state’s attorneys and many HB 3653 critics in the legislature and elsewhere continue to call for the outright rescinding of the entire bill, Berlin takes a more moderate tack. He says, “This law is very fixable. It really is.” He argues that lawmakers can still allow a general presumption against cash bail as in New Jersey’s law, but that also like that state, they can allow too for firm exceptions when deemed necessary by judges.
“And that’s really what the State’s Attorneys have been pushing for. Many of us are not just saying, ‘repeal the whole thing, just get rid of it.’ We have to respect the fact that the General Assembly passed a law. But fix it.”
However in contrast, a group of four county state’s attorneys in Illinois recently telegraphed another line of attack. It forcefully accents the essential right of Illinois communities under the state’s constitution to be protected through a robust bail-setting process.
They wrote that the abolition of cash bail embodied in the bill “denies crime victims their constitutional rights. Article 1, Section 8.1 of the Illinois Constitution, codified in the Rights of Crime Victims and Witnesses Act, mandates that crime victims shall have the right to have their safety and that of their families considered in denying or fixing the amount of bail, determining whether to release the defendant and setting conditions of release after arrest and conviction. Eliminating bail clearly contradicts previously established and superior law, places crime victims at a greater risk to be re-victimized, and unnecessarily subjects witnesses to threats and intimidation.”
And Berlin himself is thinking about legal remedies if need be. He says the Illinois Supreme Court in Hemingway v. Elrod has affirmed “on the issue of bail…it’s supposed to be a balancing process. Judges are supposed to balance the right of an accused against the right of the general public to receive reasonable protective consideration by the courts.” The Hemingway ruling reads in part, “…the constitutional right to bail must be qualified by the authority of the courts” with sufficient evidence “to deny or revoke bail” for a defendant before trial “to prevent interference with witnesses or jurors or to prevent the fulfillment of threats.”
Meanwhile, Illinois conservatives funded by wealthy Republican Richard Uhlein through a political action committee called People Who Play By The Rules, are airing a hard-hitting 30-second TV spot against the bill and its revocation of cash bail. The ad asserts, “the lawlessness of Chicago will soon be the law statewide.”
One way – and another – the screws are tightening on HB3653. If change doesn’t come in Springfield, expect the fight for stronger preventive detention to persist.