One Year In, Has Ending Cash Bail Impacted Public Safety?
An inmate at the McHenry County Jail in Woodstock. (Photo: Shaw Media)
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After outcry from a wide swath of police, prosecutors, lawmakers, and others when the Democratic-controlled General Assembly passed a flawed version of the SAFE-T Act in early 2021, many of those groups came together to begin negotiating a replacement to the law.
The legislature adopted those changes in 2022 and, after a court fight, the new law ending cash bail in the state too effect a year ago, September 18, 2023.
Three State’s Attorneys are reflecting on the successes and failures of the law after a year, and discussing if future changes need to be made.
Two of those prosecutors, DuPage County State’s Attorney Robert Berlin, a Republican, and Champaign County State’s Attorney Julia Rietz, a Democrat, were involved in the long hours of negotiations the led to the final version of the law.
“I was never in the camp of ‘the sky is falling and the streets will run amok with criminals.’ Certainly, that has not happened,” said Rietz. “Cash bail is not the best way to determine whether or not somebody should be held in custody because people who commit very serious offenses can have access to money to post for bond and be released. I think the concept of the question being based around dangerousness and likeliness to reoffend or violate court orders rather than based on whether or not someone should come up with some amount of money is a good thing.”
(Disclosure: I’ve previously done campaign work for Rietz.)
The way the law is designed, according to Berlin, it has become easier to keep violent offenders in jail awaiting trial.
“For violent crimes, whether it’s murder, armed robbery with a gun, home invasion, carjacking, [or] sexual assault, the law is working extremely well,” said Berlin. “Almost every single defendant in those cases, charged with one of those offenses, is being detained [awaiting trial] with very few exceptions.”
Sangamon County State’s Attorney John Milhiser, who returned to the job in November after a stint as U.S. Attorney, says he still has concerns about people who aren’t being detained.
“The law has done a good job to make sure those violent offenders are detained,” Milhiser said. “It’s some of those lower level [crimes] that, quite frankly, need some help or need some services that are coming into the jail and being immediately released and not getting the help and resources that they need. And, unfortunately, they reoffend.”
Berlin says, the law does still need work. He’s advocating for an amendment on policies for property crimes like burglary and retail theft.
“There are cases where I know that judges would detain [a defendant] if the law allowed them to,” Berlin said. “But because they aren’t detainable offenses under the dangerousness standard, [judges] are having to release them.”
Rietz told the story of a defendant who is about to be arraigned for breaking into the same business for the third time. She said prosecutors can move to revoke his previous agreements for pre-trial release, but can’t hold him on the latest charge.
“There are some silly things in this Act,” she said. “There are still some things that don’t make sense.”
Berlin wants the legislature to give judges even more discretion, specifically on all felony charges, which is the standard based on New Jersey’s law ending cash bail.
Milhiser agrees judges need more leeway to make calls on pretrial detention.
“A few tweaks would be beneficial by adding additional [charges] that will allow for detention based on the particular facts of the case,” Milhiser said. “Judges are in the best position to make that determination.”
“I don’t think the legislature is interested in making any changes at this point,” Rietz said.
Berlin called the law “very strong” on domestic battery standards, but said it does not give judges enough latitude on other domestic cases like harassment or assault. He says that has led to dangerous people being released.
There have been some notable misses, though. In April, a DuPage County man released from custody on misdemeanor domestic battery charges shot and killed his wife after his release.
Berlin said prosecutors did not seek to detain the offender in that case because they were told he was on dialysis treatments and they wouldn’t be able to sustain the burden of evidence to keep the offender detained. He was released on electronic monitoring.
“That was not necessarily a failure of the law,” Berlin said. “But what it did do is cause us to change our procedures with the police so we can get as much information and background as possible to put in the petition, which, oftentimes, is going to be heard a few hours later in court.”
One of the unintended consequences for prosecutors has been the additional time and cost of longer, more detailed detention hearings.
“We are the ones who have to do all of the work up front,” Rietz said. “We have to make all of the decisions up front. We have to review all of the reports and the prior history and make the decisions about whether or not to seek detention. We have the burden of proof.”
Rietz hasn’t received any money from the state or her county government to add staff to cover the additional workload. We’re told DuPage County was able to hire more staff.
We asked both Berlin and Rietz if their counties were safer, less safe, or about the same after a year without cash bail.
Both answered “about the same.”
But, Milhiser wasn’t as optimistic.
“I think it is slightly less safe because certain individuals who should be detained are not being detained,” he said. “But that can be corrected with additional discretion given to our judges.”
