Threatening Illinoisans’ safety: Six major flaws in the SAFE-T Act’s end to cash bail – Wirepoints wirepoints.org/threatening-il… via @Wirepoints
Proponents of Illinois’ SAFE-T Act claim that the law’s provisions to end the cash bail will make Illinoisans more safe once the provisions are implemented on January 1, 2023. They claim the new law will give judges more discretion to detain dangerous criminal suspects. They also claim that the law poses no problem for the state’s many jurisdictions concerned they’ll have to release what could total thousands of potentially dangerous defendants on January 1 as a result of the elimination of bail.
None of the proponents’ claims are true. A detailed analysis by Wirepoints of the SAFE-T Act’s provision to end cash bail and soften pre-trial detention rules finds the changes to be reckless as a matter of law and dangerous to the residents of Illinois. Below, we lay out six major areas of concern, several of which directly disprove the claims made by the act’s proponents.
The SAFE-T Act:
- Ends cash bail abruptly without offsetting mitigations to keep victims and the public safe.
- Almost entirely eliminates judicial discretion except for a few enumerated crimes.
- Creates a class of dangerous crimes that are non-detainable, increasing overall risk to the public.
- Removes the “threat-to-the-community” standard from the new law, rendering many crimes virtually non-detainable.
- Makes proving a “high likelihood of willful flight” nearly impossible, rendering many crimes effectively non-detainable.
- Makes likely the release of thousands of alleged criminals on January 1.
Our analysis is based on a plain reading of the law and conversations with various lawmakers, state’s attorneys and other officials. The analysis is not meant to be comprehensive given that the provision is complex and that the law is ambiguous in many areas.
1. The SAFE-T Act ends cash bail without offsetting mitigations to keep victims and the public safe. There’s little argument that Illinois’ cash bail system has its limitations and problems, but the replacement of the state’s long-standing system has been done shoddily and without debate, resulting in even less public safety. The process by which it was passed – nearly 800 pages pushed through in the middle of the night on the last day of session, with little input from the proper parties – has been well documented by now.
As a result, Illinois will go from a three-pronged system where defendants are either (1) detained under a “threat to the community” for certain crimes (felonies ineligible for probation or for stalking or aggravated stalking), (2) granted cash bail, or (3) released on their own recognizance, to a two-prong system where even fewer dangerous criminals will be detainable, as we outline below, and the rest are released. And that only increases the risk to the public.
2. The SAFE-T Act limits judicial discretion. Under current law, judges have the ability to require cash bail for certain alleged criminals. Cash bail is the middle ground used to encourage compliance with pretrial release conditions and as an incentive to return to court.
But under the SAFE-T Act, judicial discretion is almost entirely eliminated except for a few enumerated crimes. The rule, by default, is to let people out on their own recognizance.
(a) All persons charged with an offense shall be eligible for pretrial release before conviction. Pretrial release may only be denied when a person is charged with an offense listed in Section 110-6.1 or when the defendant has a high likelihood of willful flight, and after the court has held a hearing under Section 110-6.1.
Take the following example. Under current lawjudges have broad discretion to require bond for a defendant charged with “aggravated DUI” – a Class 4 felony that’s not included in the offenses listed in Section 110-6.1.
But under SAFE-T, that defendant can’t be detained at all. No matter how much of a flight risk or perceived threat he may be, beginning January 1, a judge would have no discretion to hold him. The act says he must be released on his own recognizance.
It’s the same for other Class 4 felonies and most misdemeanors.
(Note that the above language is muddled when it comes to “willful flight.” The language seems to say that “willful flight” can apply to any crime, but the specific language in Section 110-6.1 contradicts that assumption. It’s one of the many things that needs to be fixed in any new version of the law. In any case, it is nearly impossible to hold someone based on willful flight – see point 5 for more detail.)
3. There are dangerous non-detainable crimes under the act. For a defendant to be detained pending trial, he must be charged with an offense included in section 110-6.1(a). More specifically, the language in Section 110-6.1(a)(1)allows only non-probationable, forcible felonies to be detained, including first degree murder, home invasion, armed robbery and residential burglary, if the defendant is “a specific, real and present threat to any person or the community.” And while the rest of the act can give the impression that other categories of dangerous crimes are detainable, the practical reality is that many of them are simply non-detainable.
1. Start with probationable forcible felonies. Defendants charged with such crimes can be detained only if it can be shown they have “a high likelihood of willful flight.” Those crimes include most aggravated batteries, burglaries, robberies and arsons.
But given that it’s nearly impossible for prosecutors to prove “willful flight” – see point 5 below for more detail – the reality is that probationable crimes, for all practical purposes, are non-detainable.
2. Second, there are the variety of felonies listed under 110-6.1(a)(6) of the section, including aggravated discharge of a firearm, armed habitual criminal, gunrunning, firearms trafficking, and more. Defendants charged with such crimes can be detained only if it can be shown they are a “real and present threat to the physical safety of any specifically identifiable person or persons.”
Given that it’s nearly impossible for prosecutors to prove that such defendants are a danger to specific people – see point 4 below for more detail – the reality is that such crimes are, for all practical purposes, non-detainable.
3. Then there are the remaining Class 4 felonies that don’t fall under 110-6.1 of the act – for example lesser categories of aggravated DUI, mob action, obstructing justice, possession of a controlled substance and more. These crimes are not detainable for any reason.
4. Removal of the “threat to the community” standard from the new law renders many crimes virtually nondetainable. Under current law, judges can broadly determine the dangerousness of defendants by assessing their threat to “the community, person, persons or class of persons.”
Unfortunately, the SAFE-T Act strikes out that language.
“Real and present threat to the physical safety of any person or persons”, as used in this Article, includes a threat to the community, person, persons or class of persons.
Beginning January 1, prosecutors will have to prove for most crimes that a defendant is a threat to a specific person or persons – not to the community at large – in order to detain said defendant. Proving a defendant is a threat to a specific person or persons could be nearly impossible for some crimes (see point 3 above).
The only set of crimes where the “threat to a community” will still apply going forward is non-probationable forcible felonies (those mentioned in point 3 above).
5. “A high likelihood of willful flight” is nearly impossible to prove, rendering many crimes non-detainable. The language in the SAFE-T Act is self-explanatory:
(e) Willful flight means planning or attempting to intentionally evade prosecution by concealing oneself. Simple past non-appearance in court alone is not evidence of future intent to evade prosecution.
That language ties prosecutors’ hands in two major ways. One, it requires them to prove intent to flee – something that’s almost impossible.
Second, the law forces prosecutors to ignore a defendant’s previous non-appearances in court, taking away a key piece of evidence that could prove “willful flight.”
6. Thousands of alleged criminals could be released on Jan. 1. The SAFE-T Act’s end to cash bail, along with making the detention of potentially dangerous defendants far more difficult, has prompted state’s attorneys across the state to warn they’ll have to let a large number of criminals out who are currently being held on bond come January 1st. Will County State’s Attorney Jim Glasgow says that in the Collar Counties alone, 4,000 to 5,000 defendants will be released.
The SAFE-T act clearly and unequivocally abolishes cash bail as of Jan. 1: “On and after January 1, 2023, the requirement of posting monetary bail is abolished…” The law contains no grandfather language for those currently being held for failing to post bail.
Opposition to the SAFE-T Act is both widespread and bipartisan. One hundred of the 102 state’s attorneys are opposed to ending the cash bail system and that includes both Republican and Democrat state’s attorneys. In fact, many independent lawsuits by state’s attorneys or sheriffs have been filed in recent weeks.
And for extra evidence supporting our criticisms above, check out the legislation proposed by State Sen. Scott Bennett (D-Champaign).
Bennett’s changes to the SAFE-T Act includes language clarifying “pretrial release will apply to individuals arrested on or after Jan. 1, 2023. The measure also permits judges to deny pretrial release for any alleged crime if the person arrested poses a threat to the safety of any person or the community.”
The rampant crime in Illinois, in particular with what’s happening in Chicago and Cook County, has made public safety the number one issue for many Illinoisans voting on November 8. The serious flaws in the SAFE-T Act will only increase crime and put the public at increased risk. The legislature should never have passed this bill and Gov. J.B. Pritzker should never have signed it.
The SAFE-T Act should be scrapped and the legislature should start over – this time in the light of day with deliberate debate and public input.