A Democratic state senator has filed legislation that would involve changes to Illinois' SAFE-T act, which has been at the center of criticism and social media misinformation in the months before it takes effect, with some even likening it to the horror film "The Purge."
Democratic Sen. Scott Bennett said he introduced Senate Bill 4228 "to clarify language and improve how officials can enforce the law."
“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 (D-Champaign) said in a statement. “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.”
The state of Illinois will eliminate cash bail entirely in January as part of the new legislation.
Under the Pretrial Fairness Act, part of the SAFE-T Act passed by the Illinois General Assembly, judges will be allowed to determine whether individuals accused of a wide range of crimes pose a risk to another individual or to the community at large, and then decide whether to hold them in pretrial detention or to release them on their own recognizance.
Bennett’s proposed changes include a clarification that pretrial release will apply only 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," his office stated.
But some supporters of the Pretrial Fairness Act say the changes "would cause the number of people jailed while awaiting trial to skyrocket and exacerbate racial disparities in Illinois' jails."
The Illinois Network for Pretrial Justice, a coalition of 42 advocacy and policy groups who helped shape the original legislation, said "the changes being proposed are in complete opposition to the spirit of those calls for racial justice and criminal legal system reform."
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The group argues the changes would create a presumption that anyone accused of a crime subject to a potential life sentence be detained, regardless of the burden of proof against them. They add it removes the ability for defense attorneys to challenge unlawfully obtained evidence, removes the option to ticket those accused of "very minor, nonviolent crimes," and "allows prosecutors to ask that anyone be jailed indefinitely without bail."
“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," the group stated. "If passed, these measures would create a pretrial system that is far worse than the one in place today."
The SAFE-T act, particularly the Pretrial Fairness Act, has generated criticism from some state lawmakers and law enforcement officials who fear the new law will make it harder to detain alleged criminals.
State Rep. Patrick Windhorst, a Republican, argued that the bill would allow “almost all drug offenses” to qualify for pretrial release, along with burglary, arson, kidnapping.
But Sen. Elgie R. Sims, Jr., who sponsored the bill, said "the entirety of the SAFE-T Act says if you are a threat to public safety or you are a flight risk, you are going to be held." He noted the law replaces the current cash bail policies with a system that "focuses on safety, not how much money a person has in their bank account."
Still, some Illinois law enforcement officials have expressed concerns that the bill requires a higher burden of proof to detain accused violent criminals than the one currently in place. Across social media, posts list a range of violent crimes that they say will be considered “non-detainable,” including second-degree murder, kidnapping, robbery, burglary and arson.
One social media post, complete with a siren recognizable from the film “The Purge,” also featured a headline from a conservative PAC-funded mailing that was stylized as a newspaper.
In an Instagram post, Pritzker pushed back against the demonization of “non-detainable” offenses, and said that victims’ rights activists have largely supported the measure.
“HB 3653 does not mandate release, and is supported by victims’ rights advocates,” he said. ‘It ensures that the courts retain the ability to hold defendants who are safety or flight risks.”
The new law does impose higher standards for determining who is considered a public threat or a flight risk, and critics are concerned it will make it nearly impossible to detain a suspect ahead of trial. Prosecutors will now have to show a defendant poses a threat to a “specific, identifiable person or persons,” rather than a more general threat to the community, or they’d have to show that the person has a “high likelihood of willful flight.”
“This is a much higher burden than commonly used today in courts throughout the country,” says Jon Walters, an assistant state’s attorney in the office of Will County State’s Attorney James Glasgow, who has been a vocal critic of the new law. “The new standards could potentially be insurmountable.”
Kankakee County State's Attorney Jim Rowe filed a lawsuit in his county's circuit court stating the act violates the constitution in multiple ways, including the single-subject law, separation of powers, the three-readings requirement and others. The suit names Gov. J.B. Pritzker and Illinois Attorney General Kwame Raoul as defendants.
“This lawsuit should not be necessary," Rowe said in a statement. “I surely believe that freedom should not hinge upon one’s ability to pay a bond, and that the criminal justice system is in dire need of reform, including bail and beyond. However, regardless of whether you agree with or reject the many reforms of the Safe-T Act, or even how you may interpret them, one thing is for certain: you cannot amend the Illinois Constitution without a referendum or Constitutional Convention (Illinois Constitution, Article XIV).”
When asked about concerns some have voiced regarding the higher burden of proof, Alexa Van Brunt, director of the MacArthur Justice Center Clinic at Northwestern's Pritzker School of Law, said prosecutors have always had that burden. The difference is, she explained, prosecutors aren't following it right now.
"Instead, they're asking judges to set exorbitantly high bail amounts. So the person is essentially on a no bond because they can't pay it," Van Brunt said. "So basically, they're skirting their burden of proof. Now, in ways that are unlawful. And this actually just holds them to account makes them come up with evidence to show why somebody should be held before they've been convicted of anything. I keep seeing references to felons walking free."
Suspects can still be jailed pretrial if they are considered a public safety risk or likely to flee to avoid criminal prosecution, said Lauryn Gouldin, a criminal law professor at Syracuse University in New York who studies pretrial detention and bail.
The new law states: “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.” Additionally, those charged with “forcible felonies,” ones in which probation isn’t an option if convicted, can also be detained pretrial under the law following a required court hearing, said Benjamin Ruddell, director of criminal justice policy at the American Civil Liberties Union of Illinois, which was among the local advocacy groups that supported the measure.
That includes serious crimes such as first-degree murder and criminal sexual assault. Those arrested for forcible felonies such as second-degree murder, robbery, burglary, arson, kidnapping and aggravated battery — the crimes often cited by opponents of the bill on social media — are not required to have a detention hearing since they are offenses subject to probation. The suspects could, however, still be held in custody until trial if a judge determines they are a threat or flight risk.
“It’s much to do about nothing," Richard Kling, a clinical professor of law at the Chicago–Kent College of Law in Chicago told NBC Chicago. "I think realistically people who are dangerous are still going to be kept in custody."
