Posts Mislead on Illinois SAFE-T Act and Elimination of Cash Bail
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Illinois’ new criminal justice law, known as the SAFE-T Act, would eliminate cash bail but allow a judge to detain anyone who is deemed a danger to others or a flight risk. Social media posts misleadingly claim that anyone arrested for serious crimes, including second-degree murder, “will be let out free.”
The Illinois Safety, Accountability, Fairness and Equality-Today Act — better known as the SAFE-T Act — was signed into law by Democratic Gov. J.B. Pritzker in 2021.
On Jan. 1, parts of the law, which addresses a range of criminal justice issues, went into effect. Several new requirements are being implemented, including that police officers provide aid after using force, all police wear body cameras by 2025, and confidential mental health screening and counseling be provided for officers.
But one part of the law, known as the Pretrial Fairness Act, is under scrutiny, and critics say it will make Illinois unsafe.
The Pretrial Fairness Act eliminates cash bail for all offenses and allows individuals stopped under the suspicion of committing traffic, quasi-criminal or misdemeanor offenses to go free before a trial, with the stipulation that they will return to the court for their hearing.
The act would still allow a judge to detain a person who is considered a flight risk or who poses a threat to “any other person or the community.” A judge could also detain someone because of the nature of the crime.
On Dec. 28, Kankakee County Judge Thomas Cunnington ruled that the Pretrial Fairness Act was unconstitutional. Cunnington said the state Legislature should have allowed people to vote on the elimination of cash bail and the Legislature should have followed the requirements in the state constitution to pass the measure.
This provision of the law is on hold until an appeal hearing before the Illinois Supreme Court in March. The Supreme Court issued an emergency motion order on Dec. 31 to keep the existing cash bail system in place to “maintain consistent pretrial procedures throughout Illinois.”
Prior to Cunnington’s ruling, several amendments had been made to the pretrial release provisions of the SAFE-T Act on Dec. 6 that added felonies for which a judge can deny a release, such as arson, robbery or sexual assault.
But posts on social media have spread misleading claims about the changes to the cash bail system under the act, saying they put dangerous criminals back on the street and limit what a person can be arrested for — suggesting that all violent criminals will be released before the trial.
A Facebook video posted on Jan. 1 misleadingly claimed that anyone detained under the charges of kidnapping, armed robbery, burglary or second-degree murder would be immediately released. “Anyone locked up under these charges will be let out free,” the speaker says in the video, which received more than 218,000 views and 1,500 likes.
A Facebook post shared on Jan. 16 said: “The Safety, Accountability, Fairness and Equity-Today Act (SAFE-T Act) would restrict which crimes a person can be arrested for, and would free those in custody for 12 offenses, including second-degree murder, aggravated battery, and arson without bail, as well as drug-induced homicide, kidnapping, burglary, robbery, intimidation, aggravated DUI, aggravated fleeing and eluding, drug offenses and threatening a public official.”
The Facebook posts include claims that show a misunderstanding of the SAFE-T Act. All of the crimes listed in the Jan. 1 video — kidnapping, armed robbery, burglary and second-degree murder — are still offenses for which a person can be held in jail before a trial if a judge finds the individual to be a danger to the community or a flight risk.
Harold Krent, a professor at Chicago-Kent College of Law, told us in an email that under the SAFE-T Act, “individuals charged with such crimes can be detained based on a finding of potential dangerousness.”
“To detain, there must be particular facts demonstrating serious risk,” Krent said. “Or the individual can be detained because of a risk of flight.”
David Stovall, a criminology and law professor at the University of Illinois Chicago, offered a similar explanation to us in an email.
“In terms of the Illinois SAFE-T Act, a judge has the right to detain anyone that is deemed a ‘public safety risk,’” Stovall said. “Anyone can be detained if the bench determines there is a risk to the well being of particular individuals or the public at-large.”
State officials said the law is intended to avoid having dangerous criminals easily released based on their ability to pay for bail.
“I’m pleased that the General Assembly has passed clarifications that uphold the principle we fought to protect: to bring an end to a system where wealthy violent offenders can buy their way out of jail, while less fortunate nonviolent offenders wait in jail for trial,” Pritzker said on Dec. 6, after signing amendments to the SAFE-T Act.
Pretrial Release Conditions in the SAFE-T Act
Under the current cash bail system in place in Illinois, judges usually require people accused of most crimes to pay cash bail as part of their release conditions. A judge has the power to deny bail, however, for certain offenses, such as a capital offense, a crime punishable by life imprisonment, and other offenses when the person is deemed a danger to others, if there’s proof or great presumption that the person is guilty.
“True, judges could always deny bail, but given the realities of court, the vast majority of those accused of even serious [offenses] were released if they could post bail,” said Krent.
The SAFE-T Act would allow for the pretrial release of nonviolent individuals stopped and accused of traffic, Class B and C criminal misdemeanors, or petty and business offenses — under the conditions that the individuals are not a danger to the community.
Some offenses that qualify as a Class B misdemeanor include failure to report hazing or obstructing gas, water or electric current meters. Class C offenses include participating in a mob, failure to secure a firearm around a minor under age 14 that leads to an injury, or disorderly conduct at a funeral.
It is up to the arresting officer to decide whether to give a citation to a person who meets the conditions for a pretrial release or to detain the individual to be brought before a judge. Those eligible for a pretrial release include people who have no obvious mental or medical health issues that would cause them to hurt themselves.
Individuals who are given a citation must have a scheduled court hearing for their offense within 21 days.
Individuals who have an obvious mental health issue that would cause them to hurt themselves will be placed in the custody of the Department of Human Services or another mental health facility for treatment. Officers are required to receive training on effective recognition and responses to people with addiction issues, in need of mental treatment, with neglect or abuse issues, and with trauma.
A person detained for an offense in which pretrial release may be denied, such as armed robbery or second-degree murder, would be taken before a judge and charges would be filed without delay. A judge would follow the same guidelines set in the current cash bail system to determine if a pretrial release should be denied.
A person charged with a capital offense or an offense with the potential consequence of life imprisonment would not be eligible for a pretrial release until after a hearing.
“In terms of ‘rules’ that the judge would need to follow to make a determination on public safety, they didn’t change with the SAFE-T Act,” said Stovall. “They are exactly the same measures before the legislation was developed and passed.”
No one who is already detained before these provisions of the SAFE-T Act go into effect can be immediately released.
Those individuals would have to ask for consideration for the new pretrial system to be applied to their cases and must wait seven to 90 days for a hearing, depending on their offenses.
The conditions of pretrial release are the same for individuals stopped under the suspicion of committing a crime and those who were in jail prior to the date when the pretrial release conditions take effect. So a person in jail who asks for the pretrial release conditions to be applied to their case can still be denied and detained if they are found to be a safety or flight risk by a judge.
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