By JERRY NOWICKI
Capitol News Illinois
jnowicki@capitolnewsillinois.com

SPRINGFIELD – Much of the talk from supporters of the SAFE-T Act criminal justice reform has in recent days centered on how it will or won’t be amended before Jan. 1, when cash bail will be abolished in Illinois as part of a provision known as the Pretrial Fairness Act.

Everyone from Gov. JB Pritzker to Attorney General Kwame Raoul to the bill’s most ardent supporters have said a follow-up measure is likely to be passed after lawmakers return to the Capitol on Nov. 15 for their regular fall veto session.

But domestic and sexual violence victim advocates joined the SAFE-T Act’s chief House sponsor and others Tuesday to oppose a bill that Pritzker has called a good launching point for discussions on follow-up legislation.

“We stand here in solidarity with all of the survivor organizations as we push forward with the Pretrial Fairness Act and denounce these provisions that we’re seeing in the Senate bill that are rolling back the safeguards and protections for survivors that we have fought so very hard for,” state Rep. Justin Slaughter, D-Chicago, said at a news conference.  

He was referring to Senate Bill 4228, a follow-up up bill sponsored by state Sen. Scott Bennett, D-Champaign, who voted for the original SAFE-T Act and said he still favors implementing a system in which cash plays no role in whether an individual is released from custody while awaiting trial.

Bennett, in a phone call last month shortly after he filed the legislation, said he’s open to negotiations, but he filed it to clarify what he believed is the intent of the original legislation.

That includes changes to the detainability standards laid out in the system that will replace cash bail. Republicans and nearly all the state’s lead prosecutors have said they believe the language to be too limiting for judges who are considering whether to detain an individual before their trial.

In the SAFE-T Act as it stands, judges will consider each individual’s circumstances and can deny pretrial release if the offender is accused of certain offenses and is deemed a danger to the community, or if the person is a risk of “willful flight” from prosecution. All individuals are also detainable, regardless of the offense, if they commit a crime while already out on pretrial release.

The law also created a presumption in favor of release for individuals who have committed a Class B or C misdemeanor or other petty or traffic offense.

A Loyola University study estimated that a judge would not have been able to detain the defendant in 56 percent of arrests that occurred statewide in 2020 and 2021 had the PFA been in place.

About 70 percent of the individuals likely to be detained would be in relation to domestic violence or violations of order of protections, according to the study, which is one reason the SAFE-T Act had support from anti-domestic violence groups.

Bennett said while much of the current conversation regarding “non-detainable” offenses stems from “misstatements on the right,” he filed the bill to erase any potential doubt.

“But if there was any ambiguity that some judge might misinterpret that, I think it’s fixed in (Senate Bill) 4228 and I think it makes it very clear that we want people out in the community if they are not a danger to the community. We want people getting back on the path to rehabilitation,” he said. “But I think we also need to recognize that there are people that threaten our society, and if there is an objective finding of that, I think everyone feels better if they are detained until they can have their day in court.”

The advocacy groups criticized a specific provision in Bennett’s bill that would widen judicial authority to detain a defendant charged with any crime if the court believes they are a serious risk of skipping trial, pose a danger to the community, or are likely to threaten a potential witness or juror.

They also faulted SB 4228 for removing language creating a “presumption in favor of release,” saying it instead creates an unconstitutional presumption in favor of detention. 

“By removing language that promotes pretrial release for low-level nonviolent offenses and creating a ‘catch-all’ provision that allows for prosecutors to move for detention on any charge, SB 4228 harms the judicial economy promoted by the new Pretrial Fairness Act system,” the advocates wrote in an open letter to lawmakers.

The original SAFE-T Act was designed to make initial detention hearings more robust than current bail hearings, which typically occur within 72 hours of arrest, last fewer than five minutes and end in a judge deciding conditions of release, including how much money, if any, the defendant must post.

The new process will allow a prosecutor to petition for pretrial detention and a defendant can have a public defender present at detention hearings.

The advocacy groups said the presumption in favor of pretrial release for lower-level offenses in the original SAFE-T Act was designed to free court resources to spend more time in cases where violence was involved or was likely to be involved.  

“A lot of legislators are trying to substitute being tough on crime for what we want to be, which is tough against violence,” Kaethe Morris Hoffer, executive director of the Chicago Alliance Against Sexual Exploitation, said at a news conference. “And the Pretrial Fairness Act allows our system to improve its capacity to really focus attention on violent crime.”

The advocacy groups said another concern is the removal of a requirement that state’s attorneys notify victims of upcoming detention hearings. They said the requirement is needed to ensure victims don’t slip through the cracks when it comes to the administration of justice.

Another unmentioned change contained in Bennett’s bill is a provision to ensure that the end of cash bail does not apply to individuals who were held in lieu of bail prior to Jan. 1, 2023. It addresses one of the main concerns of opponents, that those held before Jan. 1 may be entitled to release depending on how a judge interprets the existing language.

The wide-ranging criminal justice reform law is also the subject of a growing list of lawsuits from dozens of prosecutors and sheriffs throughout the state who are looking to halt the cashless bail rollout.

Most of those complaints center on the legislative process of approving the bill, a process in which Illinois courts have historically not been willing to interfere. Another legal argument centers on a provision in the constitution regarding bailable offenses. The lawsuits from across the state were expected to be consolidated as the courts consider granting a preliminary injunction.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government that is distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.