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 In less than 5 months, the “Pretrial Fairness Act” will become effective
and abolish Illinois’s cash bail system. Those who support the new law
say the current system imposes a different justice system on defendants
who can afford their bond, compared to those who cannot. While we agree
that a person’s freedom should not depend on their bank account,
completely eliminating the current system was never the answer.
The new law going into effect on January 1, 2023 is going to have
disastrous consequences for the entire State of Illinois. Abolishing
cash bail means that EVERY person that is being held in jail awaiting
trial will have their bonds exonerated, and community safety will be put
at risk.
The Pretrial Fairness Act is full of contradictions, ambiguities, and is
very poorly drafted. The Act is so badly written that no two people read
it the same way. Lawyers across the State are all scratching their heads
wondering how the new system is going to work and keep people safe.
The cardinal rule of statutory interpretation is to ascertain and give
effect to the legislature’s intent. Unfortunately, unlike many laws, the
Pretrial Fairness Act does not include an explanation of the legislative
intent of the Act; therefore, the legal community must resort to other
means in determining the legislature’s intent.
In February of 2021, the Illinois Legislature passed, and the Governor
signed into law, the “SAFE-T ACT”, which contained the Pretrial Fairness
Act. The bill was over 750 pages and was introduced during a lame duck
session with the hopes it could be forced through with little to no
debate.
Since that time, law enforcement officers, State’s Attorneys, and
community safety activists have pointed out to lawmakers the obvious
flaws in the new law and begged for changes, prior to it becoming
effective, but the legislature has done nothing to address the public
safety threats the Pretrial Fairness Act created. Up until now, it has
been our hope that these issues would have been addressed, but it is
clear that no changes to the Pretrial Fairness Act are coming before
January 1ST, so it is our duty to inform the public about what to
expect.
Before getting into detail about the upcoming changes, it is important
to note how we got here.
In November of 2017, the Illinois Supreme Court created a commission on
pretrial practices. The commission studied best practices in use around
the country, consulted pretrial reform experts, listened to stakeholders
at public hearings throughout the state, and analyzed the myriad sources
of academic and professional analysis of pretrial issues. The
commission’s thorough study, discussion and spirited debates over a
two-year period culminated with a final report issued in April of 2020.
The final report rightfully highlighted recent reform efforts in
Illinois. In 2017, Illinois enacted the Bail Reform Act of 2017, which
had substantial procedural changes to detaining individuals accused of a
crime. The legislature recognized, “decision making behind pretrial
release should not focus on a person’s wealth and ability to afford
monetary bail but shall instead focus on a person’s threat to public
safety or risk failure to appear before a court of appropriate
jurisdiction.”
The current system’s reform efforts have focused on: (1) legal and
evidence-based research regarding pretrial risk; (2) use of empirical
pretrial risk assessment instruments; and (3) media reporting.
By passing the Pretrial Fairness Act, the legislature abandoned all
progress made through the Bail Reform Act of 2017 and completely made up
a new system.
Illinois is not the first state to attempt to eliminate or drastically
reduce cash bail. For example, New Jersey significantly reduced its use
of cash bail in 2017. Since implementation, New Jersey saw a dramatic
reduction in pretrial jail populations, while failure to appear and
re-arrest rates largely remained the same. In both Alaska and New York,
bail reforms that were passed had to be rolled back or amended because
their laws went too far and risked community safety. In New York, judges
are not allowed to consider whether the accused is dangerous or is a
risk to public safety. Kentucky adopted a system aimed to expedite
pretrial release of low to moderate risk defendants charged with
non-violent, non-sexual misdemeanors and to increase efficiency by
reserving resources for high-risk defendants ordered to pretrial
supervision.
Instead of trying to recreate the wheel, the Illinois legislature could
have used successful laws of other states as templates and improved upon
them or followed the recommendations of the Illinois Supreme Court.
In the final report, the Illinois Supreme Court commission warned, “far
too many jurisdictions in Illinois lack an adequate framework to allow
for effective evidence-based pretrial decision-making and pretrial
supervision.” The commission continued, “Establishing a robust and
effective pretrial system in Illinois is the first, and most crucial,
step toward minimizing, and eventually, eliminating cash bail. However,
simply eliminating cash bail at the outset, without first implementing
meaningful reforms and dedicating adequate resources to allow
evidence-based risk assessment and supervision, would be premature.”
The legislature did not heed the warnings of the Illinois Supreme Court.
Illinois is not equipped with the necessary infrastructure to
successfully monitor individuals on pretrial release and maintain public
safety.
In August of 2021, and in reaction to the Pretrial Fairness Act being
signed into law, the Illinois Supreme Court created the Office of
Statewide Pretrial Services. The Office is currently setting up services
in 68 counties with the goal to be operational in those counties by
January 1, 2023. To be clear, well over half the counties in State of
Illinois do not have a current system in place to monitor individuals
released from custody. The Office of Statewide Pretrial Services is
still in the process of hiring staff, and in most counties training has
not started.
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There is absolutely no guarantee that every county in the State of
Illinois will have the ability to monitor all the people who will be
released from jail.
Beginning January 1, 2023, people accused of committing a crime will
either be released without being required to pay any money, or they
will be held in custody without bond. Only people charged with very
specific types of cases will be eligible to be held. The first
category of offenses is non-probationable, forcible felonies. These
charges include first degree murder, residential burglary, and
aggravated arson. Other offenses eligible for detention include
stalking, domestic battery, almost all sex offenses including child
pornography, and some offenses involving a firearm.
Offenses for which people CANNOT be held in custody prior to trial
include: second degree murder, drug induced homicide, robbery,
burglary, arson, kidnapping, unlawful use of a weapon by a felon,
failure to register as a sex offender, battery, theft, criminal
damage to property, driving under the influence, and all drug cases
including selling drugs, regardless of the possible penalty.
Even if the person commits an offense that qualifies for detention
prior to trial, the prosecution must still prove at a detention
hearing, by clear and convincing evidence: (1) the person charged
has committed one of the qualifying offenses; (2) the defendant
poses a real and present threat to a specific, identifiable person
or persons; and (3) no condition or combination of pretrial
conditions can mitigate the real or present threat to the safety of
any person.
Additionally, beginning January 1ST, 2023, judges will no longer be
allowed to consider the person’s threat to the community. Serial
domestic abusers, sex offenders, and residential burglars will be
set free, without judges being allowed to consider public safety
generally, UNLESS the prosecution can prove “by clear and convincing
evidence” that the accused poses “a real and present threat” to a
specific person AND no condition can mitigate the threat.
Making matters worse, the new law requires the pretrial detention
hearing to be held immediately upon the prosecution filing a
petition to detain the accused, and the accused must be seen by a
judge within 48 hours of arrest. This means law enforcement must
complete their reports in a very short period of time, send the
reports to prosecutors, and then prosecutors must review the
reports, make charging decisions, bring offenders to court, and
present evidence showing the accused is a threat to a specific,
identifiable person, all within 48 hours of arrest. This is an
almost impossible standard, which was never intended by the Illinois
Supreme Court.
The Illinois Supreme Court commission recommends in their final
report that detention should be permitted only for those who commit
“violent” offenses, but the report never gave a criteria or
enumerated which offenses should be considered “violent”. However,
the report did recommend that the detention hearing be held within
three calendar days; that the prosecution need only show “probable
cause”, not “clear and convincing” evidence, that the accused
committed the violent offense; and that judges need only find by a
“preponderance of evidence” that the accused poses an unmanageable
level of risk to commit or attempt to commit a violent offense. The
Illinois Supreme Court’s commission was clear that judges should be
allowed to consider the safety of the community during detention
hearings. Again, the Illinois Supreme Court’s recommendations and
the pleas by law enforcement officers fell on the deaf ears of the
legislature.
The legislature’s actions are also an exercise in fixing a problem
that, for most of the State, does not exist. Between 2018 and 2021,
more than 950 felony cases were filed in Logan County. As of August
1ST, there have been 142 felony cases filed in 2022. In addition to
these felony cases, there have been hundreds more misdemeanor cases
filed. Despite these high numbers, the Logan County Jail currently
has less than 60 inmates, including inmates serving sentences or
awaiting transport to the Illinois Department of Corrections. Put
another way, out of the county’s 28,000 approximate population, only
0.2% are in jail.
Logan County inmates awaiting trial have been charged with first
degree murder, drug induced homicide, unlawful use of a weapon by a
felon, aggravated driving under the influence, unlawful delivery of
controlled substance, failure to register as a sex offender,
predatory criminal sexual assault of a child, trafficking controlled
substances, residential burglary, violation of order of protection,
disarming a peace officer, aggravated arson, possession of stolen
vehicle, domestic battery, and aggravated battery. In short,
everyone in jail has earned their accommodations. Come January 1ST,
2023, we estimate at least 20 inmates being released because they
have not been charged with a qualifying offense. Even more inmates
will be released as a result of judges not being able to find they
are a risk to a specific person, despite findings that the inmates
are a threat to the general public.
We make this statement not to incite fear, but to educate the public
on the reality coming on January 1ST, 2023. When someone commits a
crime in Illinois, that person will not be held in jail, absent
extreme circumstances. The Logan County State’s Attorney’s Office,
the Logan County Sheriff’s Office, and the Lincoln Police Department
will continue to pursue public safety, stand up for victims, and
hold criminals accountable. Please contact your legislators and
demand the same.
[Logan County State’s Attorney
Bradley Hauge, Logan County Sheriff Mark Landers, Lincoln Chief of
Police Matt Vlahovich]
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