On January 1, 2023, it is estimated that more than half of the inmates in the Winnebago County Jail will walk out the door. Approximately 400 felons will be released back into our community because our Illinois legislators passed the “SAFE-T Act” in 2020.
They spent it in the earlier hours of a “lame” legislative session in an attempt to circumvent the democratic process. They were successful. And so, on January 1st, cash bail will be eliminated throughout the State of Illinois.
The public has a right to know what this law entails, its practical weaknesses, and the serious negative impact it will have on public safety for the citizens of Winnebago County.
Read more about the Safe-T Act:Is the change in Illinois felony law helping or hurting? Rockford area leaders are being heard
While there are many issues with the new law, perhaps the most problematic is that it only allows pretrial detention for even a small subset of crimes and under very limited circumstances — regardless of the defendant’s risk of reoffending or known danger to the community.
In doing so, the law eliminates prosecutorial and judicial discretion in determining which defendants should be released back into the community while their cases are pending. At a bond or detention hearing, judges are presented with the facts underlying the charges against a defendant, that person’s criminal history, and an evidence-based risk assessment specific to each defendant. With this vital information, our community judges, using their discretion and experience, are truly in the best position to balance the important interests at stake and decide whether a person should be held pending trial .
The Illinois Supreme Court has held that in setting bail, a judge’s decision must “balance the defendant’s right to be free on bail against the right of the general public to receive reasonable, protective consideration from the courts.” The SAFE-T Act, however, does away with all of that. It strips judges of their important role and responsibility to both defendants and the public, actively preventing them from considering each case on its merits and applying the law accordingly.
Under the new law, entire categories of crimes, including aggravated battery, robbery, burglary, hate crimes, aggravated DUI, vehicular homicide, drug-related homicide, all drug offenses, including fentanyl delivery and trafficking cases, are ineligible for reservation. the seriousness of the crime or the defendant’s danger to a particular person or the community matters, unless the People show by clear and convincing evidence that the person has a “substantial likelihood of voluntarily fleeing to avoid prosecution.”
Additionally, in cases involving non-probation offenses such as murder and armed robbery, judges can hold a defendant under the new law only if the prosecution proves by clear and convincing evidence that the defendant “poses a real and present threat for the safety of specific or identifiable persons”.
Imagine the defendant who murdered his wife, to whom he is no longer a threat, being released from prison under this ridiculously narrow legal standard. Even more absurd, judges may no longer issue a warrant when a defendant fails to appear in court. Instead, an absent defendant must then be served with a court order requiring him to appear again and then not appear a second time before a warrant is issued.
This convoluted series of steps will not only delay justice for victims and strike fear into the hearts of witnesses, but will also place an unnecessary burden on law enforcement agencies to find defendants they have already arrested and hand them a paper asking them nicely . to come to court. By removing almost all responsibility for the accused, the new law seriously impedes the proper administration of justice.
One can hear the wheels of justice starting to grind to a halt.
In addition to overturning long-standing principles of justice, the law places unrealistic timelines and obligations on the State Attorney’s Office — and other criminal justice partners — creating unnecessary strain on already overworked officials.
Bottom line: The law will allow dangerous people to roam our streets. It will deter victims and witnesses from reporting crimes. And it will make it more difficult to prosecute these alleged crimes.
Oh, and as is customary in Illinois, the new law is an “unfunded mandate” that requires the county to spend even more money on the criminal justice system without any financial support from the state. On January 1st, our criminal justice system will become much more expensive and much less effective.
So what can we do about it?
First, the law’s effective date should be delayed at least six months so it can see the light of scrutiny and debate outside the shadow of a past legislative session. In rushing to pass the law, our lawmakers ignored the warning of the Illinois Supreme Court Commission on Pretrial Practice, which stated in its final report:[S]entail eliminating the cash guarantee in the first place, without first instilling meaningful reforms and dedicating sufficient resources to enable evidence-based risk assessment and oversight would be premature” (emphasis added).
Once delayed, our legislature will have to start over. Our state would do well to shape its pretrial justice law after New Jersey’s 2017 transition to a cashless bail system. Unlike our new law, New Jersey allows judges to hold people for any crime where the prosecution proves that the defendant i) will not appear in court, ii) is a danger to any other person or the community, or iii) will obstruct or attempt to obstruct justice, or threaten, injure, intimidate or attempt to threaten, injure or intimidate a prospective witness or juror.
While the New Jersey law has its critics, many have found that it appropriately balances a defendant’s presumption of innocence with the court’s interest in the fair and orderly administration of justice and the safety of the community. It is definitely a much better law that is currently in place here in Illinois.
I, along with other Illinois state attorneys general, have asked the Illinois General Assembly to adopt a statute similar to New Jersey’s and continue to allow judges to use their discretion on behalf of the communities they represent in detention hearings . While some of the local legislators are listening to us, so far our demands have not been implemented.
Hopefully there will be action during the post-election “veto session” in early December. Please call your legislators and advocate for such action — but don’t call me — or the sheriff.
We are not responsible for letting over half the prison population walk out the door on January 1st.
J. Hanley is Winnebago County State’s Attorney.
This article originally appeared in the Rockford Register Star: State’s Attorney: Illinois ‘SAFE-T Act’ poses serious threat to public