Supporters of Illinois’ SAFE-T Act often ridicule the act’s critics who claim the law is retroactive and will result, on January 1 in release from jail of many detainees arrested prior to that date.
But actions speak louder than words. State’s attorneys offices in Cook and Lake County have already begun reviewing cases of people now held pretrial to determine who will be released on January 1, as reported Friday by The Chicago Tribune.
Cook County State’s Attorney Kim Foxx said attorneys in her office are “grinding to the bone” in preparation for January 1, according to the Tribune. “Lake County State’s Attorney Eric Rinehart said his office has also gone through a similar review of current detainees,” the Tribune says.
That flies in the face of frequent claims by news media and the act’s supporters that the act is not retroactive.
It makes it clear that Foxx and Rinehart believe the law is retroactive. Every accused detainee’s case, across Illinois, will have to be looked at to determine whether they can still be held in jail under the act’s new standards that make pre-trial detention more difficult unless the law is changed or one of the 50-plus lawsuits against it succeed.
Among many who have claimed that the law is not retroactive are Gov. JB Pritzker, who said, “No one is getting let out of jail on Jan. 1. That is not what the SAFE-T Act does.” Other examples are easy to find. WGN said “legal experts say the new law would not likely be retroactive to previous bond hearings.” WAND said flat out in a news column that the act is not retroactive, meaning suspects currently being held will not automatically be released January 1st.”
Perhaps the worst comment reported in the press was from Sharlyn Grace, a senior policy advisor with the Cook County Public Defender Office. Cited as an “expert,” she said, “There is no automatic extinguishing of court orders through legislative actions. No one [who wrote the law] has ever suggested that on Jan. 1, lawful court orders evaporate and jail doors just open.”
That’s crazy. Legislative actions certainly can extinguish court orders. Assessing which court orders are extinguished by the SAFE-T Act is exactly what the Cook and Lake County prosecutors are doing.
Fox and Rinehart are the only two of Illinois’ 102 county state’s attorneys who are not on record in opposition to the SAFE-T Act. The other 100 oppose it for many reasons, usually including their view that the act is retroactive. That is, they believe they will be required to release thousands of dangerous detainees on January 1. Foxx and Rinehart believe the individuals they will release are not dangerous.
In our view, although the act is not entirely clear, the better interpretation is that it is retroactive. That does not mean that all all dangerous pre-trial detainees will be released on January 1; some will still be detained. Instead, it means that detaining them will be much more difficult because of the changes in the standards for detention under the act. Those new standards are far too hard to meet, as we explained here in detail. That’s really where the debate should be focused — on the new standards for pre-trial detention.
Nobody should quarrel with the goal of nondiscrimination against the poor and minorities on pre-trial detention and all criminal law matters. However, as WTTW wrote, “Legislators approved the SAFE-T Act at the urging of the Black Caucus in January 2021 as part of Black legislators’ response to the murder of George Floyd.” Anger and emotions, not sound judgement, ruled at that time and during 2020 when the act was drafted. It must be drastically revised or entirely repealed.