What is Actually in the Criminal Justice Reform Law?
A McHenry County Jail inmate is moved between cells. Standards for pre-trial incarceration will change when a new criminal justice reform law kicks in on January 1.
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There are few more controversial topics in state government than the January 1 rollout of a new criminal justice law that ends the long-standing cash bail system in Illinois.
Multiple prosecutors and police groups have been raising alarms over the law, known informally as the SAFE-T Act.
“The biggest problem I see with the law is that there are categories of offenses for which, even if the defendant is a real threat to the public, they cannot be detained based on the actual charge,” said DuPage County State’s Attorney Bob Berlin, a Republican.
The Senate passed the bill around 5 A.M. the morning the legislative session was scheduled to end in early January last year, and the House passed the legislation with literal minutes remaining before the expiration of the old General Assembly.
“The legislature has given us this entirely new system with, let’s acknowledge, absolutely little to no input from us, the people who have to make this work,” said Democratic Champaign County State’s Attorney Julia Rietz. “They will say we had input, at 4 in the morning, maybe we had some input. But, we did not sit down and say ‘this is how it will work.’”
(Disclosure: I handled media buys for Rietz’s re-election campaign in 2016.)
So what’s actually in the bill? It, as we know, ends cash bail.
725 ILCS 5/110-1.5
On and after January 1, 2023, the requirement of posting monetary bail is abolished, except as provided in the Uniform Criminal Extradition Act, the Driver License Compact, or the Nonresident
Violator Compact which are compacts that have been entered into between this State and its sister states.
Earlier this month, Governor JB Pritzker defended the law for eliminating cash bail and protecting people held in a county jail on low-level offenses.
“What we don’t want is for someone who is in jail because they’ve been arrested for a low-level offense to be held in jail for months, maybe even years, because they don’t have $200 or $300 to put up for bail,” Pritzker said at an unrelated news conference. “I think we all can agree that is not fair.”
Prosecutors agree with the Governor.
“None of us want that. We all agree on that. We absolutely don’t want somebody being held in custody on a lower level offense for months or years. I mean, years? Shame on us if that happens. We should get sued,” she said. “I can only speak for Champaign County. I can’t speak for Cook County. But if that’s what’s happening there, you blow up the entire system for the rest of the state? Tell me where it’s happening.”
Berlin says most of the inmates at the DuPage County Jail are in custody for serious offenses.
“The people, for the most part, who are in our county jail awaiting trial, are there for violent offenses,” Berlin said. “The low level felonies, people are out. They’re already out. They’ve either been getting recognizance bonds or very low bonds they can post. The people that are in custody now are there for the more serious offenses.”
Berlin says “less than a handful” of low level offenders are currently being held in DuPage County.
Furthermore, Berlin said if a person can’t pay a low dollar bond, they’ll be released after a couple of days or weeks as state law reduces bond $30 per day until it reaches zero.
Pritzker used an example of a “wealthy drug dealer accused of murder can show up with a suitcase full of money and get out of jail,”
But Berlin says, under the new law, no level of drug dealer would be held in the county jail.
“A defendant driving a truck full of fentanyl cannot be detained,” he said.
Which leads to the issues surrounding who can be detained.
725 ILCS 5/110-2 (c)
Detention only shall be imposed when it is determined that the defendant poses a specific, real and present threat to a person, or has a high likelihood of willful flight. If the court deems that the defendant is to be released on personal recognizance, the court may require that a written admonishment be signed by the defendant requiring that he or she must comply with the
provisions of Section 110-12 of this Code regarding any change in his or her address.
Numerous opponents of the legislation have used a hypothetical scenario that a domestic violence defendant could be held but if the defendant actually killed their spouse, they would no longer be a threat to a specific individual.
“That’s an interpretation and that is an argument that a defense attorney could make and a judge is going to have to make a decision on and, potentially, an appellate court is going to have to interpret,” Rietz said. “Do I agree that’s the right interpretation? No. But, we’re lawyers. Our job is to make arguments. So that is going to be a defense attorney’s argument.”
Berlin was more pessimistic.
“Unless there’s evidence the defendant is a threat to someone else, that’s going to be hard for the state to prove,” Berlin said.
The law even changes the rules around if someone can be considered a flight risk.
725 ILCS 5/110-1 (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.
“My criticism of the law is that it takes away the discretion of the judges in a lot of these cases. The judge is really in the best position to make a determination of an appropriate bond or, in this case, detention or release,” Berlin said. “When a judge has no discretion, we’re going to see defendants who are charged with some of these offenses that are a threat and are released.”
And inconsistencies could cause problems from county to county.
“On every issue I hear each county is going to have to meet and discuss among themselves how they are going to interpret this clause or issue,” she said. “That’s 102 different counties having 102 different [interpretations.]”
We spoke to Sen. Robert Peters (D-Chicago) Wednesday morning about some of the questions regarding the law.
The law also limits what police officers can do in certain situations, including banning the use of pepper spray for crowd control.
720 ILCS 5/7-5.5
(e) A peace officer, or any other person acting under the color of law, shall not:
(v) use chemical agents or irritants for crowd control, including pepper spray and tear gas, prior to issuing an order to disperse in a sufficient manner to allow for the order to be heard and repeated if necessary, followed by sufficient time and space to allow compliance with the order unless providing such time and
space would unduly place an officer or another person at risk of death or great bodily harm.
(vi) use chemical agents or irritants, including pepper spray and tear gas, prior to issuing an order in a sufficient manner to ensure the order is heard, and repeated if necessary, to allow compliance with the order unless providing such time and space would unduly place an officer or another person at risk of death or great bodily harm.
Many in the law enforcement community have criticized the law as “anti-police.”
Kenny Winsolw, the former Springfield Police Chief who will become Executive Director of the Illinois Association of Chiefs of Police September 1, says many police feel they’re being attacked by the legislation.
“In some areas, in some jurisdictions, there is a morale issue and there is a fear that if they take appropriate action they’ll be second guessed and Monday morning quarterbacked just to find fault,” Winslow said. “There’s a fear they could be held liable and lose everything they’ve worked for. But there’s definitely a heightened concern.”
Sen. Robert Peters (D-Chicago), one of the key sponsors of the bill in the Senate, said in an interview shortly after the bill was passed that police policies aren’t working.
“We need to indict a failed system of public safety, one that relies on ‘tough on crime’ policies that haven’t worked,” Peters said. “For 40 years, we’ve been doing the same thing over and over again and it hasn’t made us feel safer or actually be safer. We know what safety looks like.”
Peters called 2020 a crisis for “racism, particularly in law enforcement.”
Pritzker said the bill is beneficial to law enforcement.
“The SAFE-T Act does many things that are supportive of local law enforcement. We’re providing funding, we’re providing cameras, we’re making sure that local law enforcement has the resources they need,” the Governor said earlier this month. “We’re doing the right thing to bring more public safety to the people of Illinois.”
“We are all very aware of the issues that being held in custody creates for individuals, for their families, for the community,” Rietz said. “But we are also very aware of the very real public safety concerns that all of our communities are facing. So, we take very seriously our ethical obligations to file charges only when we believe the evidence meets our burden.”
It’s clear with less than three months to Election Day, there are many unanswered questions.
“There are many State’s Attorneys, both Republican and Democrats, who have issues with this law and are struggling with it,” Berlin said. “My issues with this law have nothing to do with politics and everything to do with protecting the public. We’re the prosecutors for everyone, Republicans, Democrat, independents, everyone. This is not a political argument, this is strictly about good policy and public safety.”
Winslow says there are issues with the law in every corner in the state.
“Each county has different issues. From the smallest county to the largest county, there are different resources available, or lack thereof,” he said. “It’s going to affect all of us.”
Rietz says there are many fixes that can be made to the law before it takes effect.
“I certainly would change a lot of the inconsistency in the language across the bill,” she said. “I certainly would take out a lot of the absolutes that create issues for my friends downstate and in smaller counties. I would modify some of the terms and definitions.
Rietz says it is possible to fix problems with the law while continuing to reform the court system.
“We need to come together to figure out how to make this work instead of standing around pointing fingers at each other and saying everything is black and white. It’s just not.”
