SAFE-T Act Pretrial Release Rules Could Change Before They Take Effect

CHAMPAIGN, IL — A Democratic state senator this week proposed changes to the law that will make Illinois the first state in the nation to completely eliminate cash bail.

Sen. Scott Bennett (D-Champaign) plans to introduce legislation during the November veto session aimed at address concerns raised by local law enforcement officials, according to his office.

“As a former prosecutor, I understand the importance of presuming innocence for individuals before being proven guilty, supporting police and keeping violent criminals out of our neighborhoods,” Bennett said in a statement.

The Pretrial Fairness Act, which is set to takes effect on Jan. 1, was passed as part of House Bill 3653, a broad package of police and criminal law reforms approved in the final hours of the January 2021 legislative session.

The wide-ranging omnibus bill was later dubbed the Safety, Accountability, Fairness and Equity Today, or SAFE-T Act. The 764-page legislation contains numerous provisions changing state law concerning police regulations, crime victims and state prisons — many of which have already taken effect.

But none have become a political campaign issue to the same degree as has the prospect of ending money bond. False and misleading information on the subject is rampant ahead of the November election, even in purported "fact checks."

Backers of the changes to the state's standards for pretrial detention say the amount of money to which criminal defendants have access should not determine whether or not should they remain jailed while awaiting trial.

Eliminating ability to post bond from the equation will mean people with money facing serious charges will not be able to buy their way out of jail, and those facing minor charges without access to cash will not need to, they argue.

Opponents say the changes will tie the hands of prosecutors and judges by reducing their discretion to order the detention of people charged with certain crimes when there is not evidence of "a high likelihood of willful flight to avoid prosecution."

They argue the part of the bill that lays out procedures for prosecutors to ask a judge to order someone held before trial — Sec. 110-6.1 — will prevent authorities from being able to detain potentially dangerous defendants depending on what charges they face.

The federal criminal court system and the state of New Jersey already operate mostly without cash bail, with judges tasked to make decisions about each defendant's potential danger to the public and their chances of showing up to their next court date.

Senate Bill 4228, Bennett's proposed legislation, would expand judges' authority to order the pretrial detention of people charged with less serious felony offenses if they believe that the defendant will not show up in court, that they pose a danger to the community or that they will obstruct justice or intimidate a witness or juror.

“Senate Bill 4228 is an effort to improve consistency in the SAFE-T Act and allow law enforcement officials to continue to effectively perform their duties and protect our communities,” Bennett said.

The bill would also keep cash bonds set prior to the effective date of the Pretrial Fairness Act in place. According to his office, he plans to work with "all stakeholders" during the veto, which begins on Nov. 15 — a week after Election Day and about six weeks before the law takes effect.

The Champaign Democrat's proposal, first reported by WAND, drew immediate pushback from advocates for an end to cash bail, with representatives of the Illinois Network for Pretrial Justice suggesting it would "exacerbate racial disparities" in jails.

"The changes being proposed are in complete opposition to the spirit of those calls for racial justice and criminal legal system reform," they said in a statement. "The Pretrial Fairness Act was designed to ensure that everyone has access to the presumption of innocence, and the changes included in SB4228 would deny all Illinoisians that right. If passed, these measures would create a pretrial system that is far worse than the one in place today."

In addition to the possibility of a third trailer bill, several county prosecutors have filed lawsuits challenging provisions of the bill ahead of its implementation at the start of 2023, adding uncertainty to any prediction of how pretrial detention will be handled next year.

According to Madison County State's Attorney Tom Haine, 100 of the 102 state's attorneys in Illinois oppose the SAFE-T Act. The state's attorneys of Lake and Cook counties supported the bill.

In response to Haine's assertion last month that SAFE-T Act would lead to the "greatest jailbreak in Madison County history," Gov. J.B. Pritzker said he was "disheartened" by the prosecutor's suggestion that he was "powerless to keep dangerous people in prison beginning January 1."

In a Sept. 23 letter, the governor said the prosecutor's interpretation of the law had been "debunked."

Pritzker emphasized that the most serious crimes will be explicitly detainable, and there are circumstances where prosecutors may still seek the detention of those charged with lesser offenses.

"Prosecutors may present evidence that the defendant poses a threat to public safety if the [forcible] felony involved a family member of domestic violence, or that the defendant used a gun," Pritzker said. "Furthermore there is nothing in the SAFE-T Act that prevents prosecutors from using their discretion to charge repeat offenders with higher level felonies when the facts indicate it is appropriate. Under this system, risk, not wealth, determines whether these defendants will be detained prior to their trial."

The governor encouraged the state's attorney to "file motions to detain defendants you consider to be dangerous to the citizens of Madison County."

"Sadly," Haine responded Wednesday, "the plain language of the SAFE-T Act forecloses that option in many cases."

The act clearly makes pretrial detention offense-specific, Haine said.

"A defendant may be dangerous," he said, "but even demonstrable risk to others is only relevant to pretrial detention when that defendant is charged with the offenses listed in Section 110-6.1."

In his letter to Pritzker, first reported by the Madison-St. Clair Record, the prosecutor also pushed back on the governor's citation of a Snopes article, pointing its factual errors and internal contradictions.

"It is hard to know why Snopes makes so many elementary mistakes in analyzing the plain language of the SAFE-T Act," he said. "But it is undeniable that its article is riddled with errors and is not a good resource on this topic."

The Illinois Supreme Court Pretrial Implementation Task Force has been working on implementing the requirements of the Pretrial Fairness Act. It has convened a series of town hall meetings, the most recent of which was held Thursday.

A flow chart produced by the task force indicates that arrestees will not be held for an initial appearance before a judge unless they are charged with an offense for which pretrial release maybe denied under Sec. 110-6.1 — or where there are no circumstances that justify the officer using their general discretion to release the person ahead with a notice to appear in court within 21 days.

In response to Bennett's proposed changes to the rules for pretrial release, State Rep. Jehan Gordon-Booth (D-Peoria) said the Public Safety Working Group she leads is meeting regularly to discuss further "refinements and improvements" to the SAFE-T Act.

“Since the SAFE-T Act was passed in January 2021, legislators have worked with stakeholders from across the state to address sincere concerns and facilitate the law’s successful implementation. These conversations have been invaluable, and as a result the House has passed three trailer bills refining and improving the law. That work continues," Gordon-Booth said in a statement.

“We will review Senate Bill 4228 through the same process of thoughtful consideration within our working group to ensure all voices are being considered."