Illinois state lawmakers in the fall veto session starting Tuesday have an opportunity to correct the gravest missteps baked into their enacted criminal justice reform bill, the SAFE-T Act. The best way to do that would be rescind the entire Act and start over with the deliberation and transparency missing when they jammed through the 764-page bill in the 2021 veto session.
The current law abolishes cash bail and effectively eviscerates pretrial detention on cashless bail for high-risk defendants – while pretending not to. It heightens risks for crime victims, and greenlights anonymous complaints against police, whose resignations and retirements will continue to grow. It is a wrecking ball to criminal justice and law enforcement in the State of Illinois.
But instead of starting over, supermajority Democrats responsible for this dangerous mess will make just minor tweaks to the law. Why should they dismantle SAFE-T, they’ll ask, given the elections they swept last week?
As a result, we’ll see more and more cases statewide where violent and weapons defendants released before trial will be charged with new and egregious violent crimes.
Here’s what to expect as the action on the SAFE-T Act begins again this week in Springfield. Substantive change is more likely in some areas than others, but the net gains will be minimal.
Abolition of cash bail will still stand
It’s already clear what will be the centerpiece of the self-congratulatory “SAFE-T revision” agenda. Lawmakers will clarify that the Act’s apparent blanket abolition of cash bail is redefined to only apply going forward from that provision’s effective date of January 1. It won’t be retroactive, they’ll proclaim. That will address one concern of prosecutors: that defense lawyers will be petitioning courts to release perhaps thousands of high-risk pretrial defendants statewide, already held on high-cash bail.
Even Governor J.B. Pritzker, a prominent defender of the SAFE-T Act, is behind this tweak.
But lawmakers will fail to address the elephant in the room: that cash bail will be abolished for new pretrial defendants after January 1. That’s not only risky, but irresponsible and unwarranted. And, as we’ll show below, lawmakers are likely contravening Illinois’ Constitution.
Politicians will retain SAFE-T’s weasel words on pre-trial detention with no bail
So cash bail will be over. What of pretrial detention? Under the SAFE-T Act as currently approved, defendants can still be held without bail. But the devil is in the details.
Remarkably, judges won’t be able to order felony weapons defendants held on no bail if they are a threat to the community. Instead, they’ll be able to detain them only if they pose a clear threat to a specific individual. That’s dead wrong. The simpler and clearer “community threat” should be the standard.
Many new felony weapons defendants have additional pending charges, or prior felony convictions, or both. Requiring that prosecutors prove such felons are a threat to a specific identifiable person, rather than the community at large, is a ticket to high-risk releases that may endanger public safety.
Evidence comes from Cook County’s dangerous experiment in bail reform, which the legislature adopted and worsened with the SAFE-T Act.
Looking at Cook County, we reported in March on repeated examples of felony weapons defendants freed before trial who then were charged again for crimes like a stabbing, and a murder. We reported from Cook County in April on more felony weapons defendants freed before trial and charged with attempted murder, attempted first-degree murder, and for firing at two hospital guards. In May, we reported on a felony weapons defendant released before trial who was charged with two counts of murder.
How many more bullets and bodies are needed to tighten up pretrial detention for felony weapons defendants?
Weakened pretrial detention for burglars, robbers, batterers won’t get fixed
Also likely to be left out of veto session action is a fix to the risky pretrial detention provisions of the SAFE-T Act for defendants charged with probationable forcible felonies – like aggravated batteries, burglaries, robberies and arsons.
As it stands now under the SAFE-T Act, they can be held before trial on no bail only if they show “willful intent to flee.” That’s wrong for two reasons.
First, prosecutors rightly note it’s a ridiculous standard of proof: you’d effectively have to show a defendant is plotting his escape from the jurisdiction. Second, evidence that intent may be substantial can’t include prior court no-shows. It’s an utterly rigged rule.
State’s Attorneys James Glasgow of Will County (a Democrat) and Robert Berlin of DuPage County (a Republican) are among the many who’ve called out the risky limitations on pretrial detention for defendants charged with probationable forcible felonies, and weapons felonies.
The “willful intent to flee” requirement for pretrial detention is an evasion of accountability. It sidelines the safety of the law-abiding public and favors accused criminals who’ve already thumbed their nose previously at the criminal justice process by failing to show up for court dates.
Again, do it right. Strike the “willful intent to flee” requirement for pretrial detention without bail of forcible probationable felony defendants. Leave it to the judge to decide based on the entirety of each defendant’s prior record including convictions and all pending charges. Which often include more than the very latest alleged offenses.
Legislators won’t protect victims and witnesses from ankle bracelet busters, either
It gets worse. Under the SAFE-T Act, pretrial defendants on electronic monitoring who go off the radar can’t be pursued for 48 hours. In Cook County the electronic monitoring population already includes a growing proportion of high-risk defendants who are facing trial for offenses like murder, attempted murder, sex crimes, armed violence, and three different weapons felonies. The 48-hour head start for ankle bracelet scofflaws gives them plenty of time to threaten or harm a witness. Or worse.
Witnesses in Chicago get killed, as reported here and here. Even pregnant witnesses get killed in Chicago.
Once again, lawmakers can go beyond the cosmetic here too, by rescinding the 48-hour head start for ankle bracelet scofflaws. Let local police and sheriff’s departments go after defendants on electronic monitoring as soon as they are AWOL.
But once more, don’t hold your breath.
State’s attorneys suit: Constitution affirms cash bail and victims’ rights to protection
In considering all they need to do, lawmakers should bear in mind the pending consolidated lawsuit against them to rescind the Act, by 58 Illinois county State’s Attorneys. (Improve/tighten)
One main thrust of the lawsuit is that cash bail is guaranteed by the Illinois State Constitution, Article 1, “Bill of Rights.” It holds in Section 9 that “all persons shall be bailable by sufficient sureties.”
Article 1 in the Illinois State Constitution also suggests the need to ease the SAFE-T Act’s restrictions on pre-trial detention, which we’ve outlined above.
In Section 8.1, titled “Crime Victims’ Rights,” Article 1 states victims must be “reasonably protected from the accused throughout the criminal justice process” and must have their safety “considered in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.”
You’re On Your Own, Now
Watch closely whether and to what extent the SAFE-T Act is fixed during the November veto session. It will reveal a lot about whether lawmakers are serious or not about finding a balance between the rights of the accused and the rights of victims.
Yet everything we have seen to date suggests that Illinois state legislators are fundamentally unserious about the rights of victims and the law-abiding public to be protected from unreasonable and dangerous risks posed by felony defendants, many with prior felony violent or weapons convictions.
The sad result of legislative failure to rescind or substantively improve the SAFE-T Act will be more violent crime and more violent crime victims. We will all be several steps closer, across Illinois, to the Mad Max world already emergent in the test-bed of bail reform, Cook County.