Changes to Illinois’ SAFE-T Act a vindication for opponents of the law, but the Act remains dangerous to Illinoisans – Wirepoints

By: Matt Rosenberg, Ted Dabrowski and John Klingner

The Illinois Senate and House have approved 308 pages of amendments to the SAFE-T Act. They’ve unmade several messes of their own making, but the bill is still fundamentally flawed and threatens the public interest. 

Left out of the last-minute calculus are remedies for: the abolition of cash bail January 1; toxic-anti-police provisions; dangerous twice-weekly furloughs for pretrial defendants on electronic monitoring; and failure to mandate sentencing transparency online. Regardless, the changes now await the signature of Gov. J.B. Pritzker by January 1. 

The amendments, approved by the majority Democrats, signal a stark reversal of course to address concerns which they and many progressive advocates had largely ridiculed critics for raising. 

Below we examine the key differences between what the SAFE-T Act did, and what the amendments do.

WHAT SAFE-T DID: The SAFE-T Act’s end of cash bail raised an alarming possibility of jails releasing thousands of pretrial defendants on or after January 1. A big concern was that many of the alleged criminals who could be released on January 1 were high-risk because they were charged with violent crimes.

WHAT THE AMENDMENTS DO: The amendment clarifies that cash bail abolition January 1 won’t be automatically retroactive. The amendments include a framework for hearings so defendants who were detained on cash bail before January 1 can petition for pretrial release after that date. But there will be no opening of county jail doors en masse. (p. 237) 

WHAT SAFE-T DID: The Act struck the “threat-to-the-community” standard from the new law, rendering many crimes virtually non-detainable.

WHAT THE AMENDMENTS DO: The community threat standard is reinstated as grounds for pretrial detention. SAFE-T had held that pretrial detention could occur only when the defendant “poses a specific, real and present threat to a person or has a high likelihood of willful flight.” Now the amended Act states what Illinois law did prior to SAFE-T: that a defendant can be detained before trial if the prosecution can prove they’re a threat to “any person or persons or the community…” (p. 166). 

WHAT SAFE-T DID: The Act made proving a “high likelihood of willful flight” nearly impossible, rendering many crimes effectively non-detainable. SAFE-T had prevented pretrial detention for probationable forcible felonies unless prosecutors could prove the defendant was “planning or attempting to intentionally evade prosecution by concealing one’s self,” and added that past non-appearances at court dates couldn’t be used as evidence of future intent to flee.

WHAT THE AMENDMENTS DO: Likelihood of willful flight is defined more reasonably, in connection with pretrial detention. While the amended Act still allows “isolated” nonappearances in court without punishment of pretrial detention, it also tightens the rules by holding that “repeated nonappearances” by a defendant may be considered as evidence showing intent to willfully flee. This then can constitute grounds for pretrial detention. There’s a 48-hour window to remedy a court non-appearance, otherwise the judge can issue an arrest warrant for the defendant. (p. 163). Prosecutorial sources tell Wirepoints that additionally, evidence a defendant sought to flee and elude police prior to arrest is now admissible under the amendments as germane to flight risk, whereas before it was not.

WHAT SAFE-T DID: The Act made a sweeping series of felonies effectively non-detainable before trial. That’s because prosecutors would have to prove a threat to a specific individual rather than the old more reasonable standard of community threat. Prosecutors emphasized that would be exceedingly difficult in most instances. Effectively non-detainable crimes included aggravated batteries, burglaries, robberies, arson, aggravated discharge of a firearm, armed habitual criminal, gunrunning, firearms trafficking and more.

WHAT THE AMENDMENTS DO: It’s now easier to detain a defendant before trial on a range of felony charges. A long list of felony weapons charges can now be grounds for pretrial detention based on proving only that the defendant poses a threat to the community at large rather than having to prove “a real and present threat to the physical safety of any person or persons.” (p. 222). 

The amendments also now include as detainable a series of forcible felonies including not only murder in the first or second degree but also armed or aggravated robbery, residential burglary, burglary with use of force, home or vehicle invasion, aggravated arson and aggravated battery. (p. 220, 224-5). 

The list encompasses reckless homicide, involuntary manslaughter, residential burglary, child endangerment, aggravated unlawful restraint, threatening a public official, aggravated battery with a deadly weapon other than by discharge of a firearm, aggravated DUI causing great bodily harm or after a reckless homicide conviction, and more.

In all cases the threshold of a threat to the community must be proven by prosecutors, or alternatively they must prove the defendant has exhibited willful intent to flee.

WHAT SAFE-T DID: The Act’s ambiguous wording sharply restricted police discretion to arrest for trespassing. SAFE-T Act critics argued that the law made it harder for police to arrest trespassers and other Class B or C misdemeanor offenders because cops and prosecutors would have to issue a court appearance citation rather than make a custodial arrest if there was “no obvious threat to the community or any person.” 

WHAT THE AMENDMENTS DO: Officers now have more discretion to arrest for trespassing. Now amended language gives police the power to arrest trespassers if they “reasonably believe” the offender poses a threat or will persist in trespassing after mere issuance of a ticket. (p. 147) 

WHAT SAFE-T DID: The Act set a 90-day limit on pretrial detention. Prosecutors objected that heavy caseloads make it difficult to bring all cases to trial within that time frame.

WHAT THE AMENDMENTS DO: The 90-day limit on pre-trial detention has been eased. The amended Act allows that “continuances with good cause” requested by prosecutors and granted by judges will not count toward the 90-day limit. (p. 237)

WHAT SAFE-T DID: SAFE-T let pretrial defendants violate electronic monitoring rules without police pursuit for 48 hours. That unfathomable error would put crime victims and witnesses at risk of intimidation or harm.

WHAT THE AMENDMENTS DO: The 48-hour free roaming pass for criminal defendants on electronic monitoring would be revoked. (p. 306).

Now action turns to the courts. Next week on December 7 a Kankakee County judge will hear arguments for and against a consolidated lawsuit by 58 county state’s attorneys to rescind the SAFE-T Act. A decision from the bench could come as soon as mid-month, after which appeals to the Illinois Supreme Court are likely. The lawsuit leans hard on the state constitution and its requirement to retain cash bail, which the SAFE-T Act still abolishes on January 1.

We recently reported the Illinois Constitution requires that:

“‘All persons shall be bailable by sufficient sureties. ”Article 1 (Section 8.1) in the…Constitution also…states victims must be ‘reasonably protected from the accused throughout the criminal justice process’ and must have their safety ‘considered in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.’” 

Lawmakers are still in over their heads. They’ve left too many problematic aspects of the SAFE-T Act uncorrected. And that puts Illinoisans and their communities at increased risk.

Read more from Wirepoints:

• Proposed SAFE-T Act changes fall far short of the structural fixes needed
• 100 a day: Chicago motor vehicle thefts explode as SAFE-T Act changes debated
• Electronic monitoring horror show grows as lawmakers skate past SAFE-T reforms
• Poor communities bear the brunt of crime unleashed by Cook County bail reform and the SAFE-T Act: New Manhattan Institute report
• Chicago’s progressive agenda has been destructive for black communities
• Chicago Transit Authority violent crime aims for five-year high in 2022; Red Line stuck in “Wild West”