With the recent Illinois Supreme Court decision that upheld the no-cash bail provisions in the so-called SAFE-T Act, these sweeping changes to our bail system will take effect on September 18.
Among other things, the SAFE T Act creates a standard that all defendants are presumed eligible for pretrial release. State’s Attorneys must petition the court to even start the process of trying to hold a defendant behind bars pending trial.
The original SAFE-T Act law was a 764-page bill that was dropped on legislators in the middle of the night during the final hours of a Lame Duck session of the Legislature in January of 2021. Some who cast votes were leaving office and had no accountability to voters. Nonetheless, with law enforcement and legal officials across the state up in arms, the bill passed.
The bill was so bad, Democrats in vulnerable districts voted against it so their vote could not be used against them in the next election. The bill was so flawed, that as of today, Democrats have had to go back on three separate occasions to fix glaring problems that placed the public and crime victims at risk.
The term SAFE-T Act is misleading because nothing in the Act improves public safety. It includes an extensive list of mandates that impact most areas of our criminal justice system, including pre-arrest diversion, policing, pre-trial treatment of those arrested, and jail/corrections. It addresses how police and the judicial system may interact with suspected criminals, but nothing in the Act makes Illinoisans more safe. There are some good elements of the SAFE-T Act, but the negatives in the law far outweigh the positives. The law still places the rights of the accused well ahead of crime victims and families.
One of the most controversial elements of the Act is the elimination of cash bail. Illinois is the only state in the nation that has completely eliminated the option of an accused person having to post monetary bail in order to walk free pending trial. Lower courts in Illinois agreed that stripping judges of their right to set cash bail was unconstitutional, but Illinois’ highest court, stacked with Democratic judges that have received hefty donations from Governor JB Pritzker, upheld the law.
Another element of the Act that has law enforcement and the judiciary concerned is a mandated timeline that requires a decision on pre-trial release to be made within 48 hours of an arrest. Those arrested must be brought before a judge, and it is at this point that the case must be made, literally while a crime is still being investigated, if the accused may be held in jail or if he/she must be released. The bar for holding an individual is very high, and while those accused of the most violent crimes can be held, many crimes do not provide for pre-trial detention under the Act. Simply put, in many circumstances, criminal acts that allowed a judge to hold a defendant in the past are now offenses where the accused will walk free pending trial.
Judges no longer have full discretion to determine whether a defendant is held pre-trial or walks free based on the unique circumstances of an individual case. If a judge is presiding over a hearing involving a non-detainable offense, and based on the specific circumstances they believe that individual poses a risk, their hands are tied. The defendant walks free pending trial.
The law is mostly silent about how weekends and holidays affect this schedule, so courts are now looking at adding Saturday and holiday hours, and additional personnel to ensure compliance. This comes at a new cost, which will undoubtedly be absorbed by taxpayers. Another drain on human resources is a requirement that many currently in jail pending their trial will have to have a hearing to determine whether they remain in jail or are released. This presents issues not just with personnel, but also with actual courtroom space.
As this law rolls out, I have no doubt that additional “fix-up” bills will come before us. The right thing to do would be to repeal the SAFE-T Act and craft a law that balances the rights of the accused with the rights of Illinoisans to feel safe in their neighborhoods. Unfortunately, Illinois Democrats seem unwilling to do that.