By: Ted Dabrowski and John Klingner
Proponents of Illinois’ SAFE-T Act claim that the law’s provisions to end the cash bail will make Illinoisans more safe once the provisions are implemented on January 1, 2023. They claim the new law will give judges more discretion to detain dangerous criminal suspects. They also claim that the law poses no problem for the state’s many jurisdictions concerned they’ll have to release what could total thousands of potentially dangerous defendants on January 1 as a result of the elimination of bail.
None of the proponents’ claims are true. A detailed analysis by Wirepoints of the SAFE-T Act’s provision to end cash bail and soften pre-trial detention rules finds the changes to be reckless as a matter of law and dangerous to the residents of Illinois. Below, we lay out six major areas of concern, several of which directly disprove the claims made by the act’s proponents.
The SAFE-T Act:
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- Ends cash bail abruptly without offsetting mitigations to keep victims and the public safe.
- Almost entirely eliminates judicial discretion except for a few enumerated crimes.
- Creates a class of dangerous crimes that are non-detainable, increasing overall risk to the public.
- Removes the “threat-to-the-community” standard from the new law, rendering many crimes virtually non-detainable.
- Makes proving a “high likelihood of willful flight” nearly impossible, rendering many crimes effectively non-detainable.
- Makes likely the release of thousands of alleged criminals on January 1.
Our analysis is based on a plain reading of the law and conversations with various lawmakers, state’s attorneys and other officials. The analysis is not meant to be comprehensive given that the provision is complex and that the law is ambiguous in many areas.
1. The SAFE-T Act ends cash bail without offsetting mitigations to keep victims and the public safe. There’s little argument that Illinois’ cash bail system has its limitations and problems, but the replacement of the state’s long-standing system has been done shoddily and without debate, resulting in even less public safety. The process by which it was passed – nearly 800 pages pushed through in the middle of the night on the last day of session, with little input from the proper parties – has been well documented by now.
As a result, Illinois will go from a three-pronged system where defendants are either (1) detained under a “threat to the community” for certain crimes (felonies ineligible for probation or for stalking or aggravated stalking), (2) granted cash bail, or (3) released on their own recognizance, to a two-prong system where even fewer dangerous criminals will be detainable, as we outline below, and the rest are released. And that only increases the risk to the public.
2. The SAFE-T Act limits judicial discretion. Under current law, judges have the ability to require cash bail for certain alleged criminals. Cash bail is the middle ground used to encourage compliance with pretrial release conditions and as an incentive to return to court.
But under the SAFE-T Act, judicial discretion is almost entirely eliminated except for a few enumerated crimes. The rule, by default, is to let people out on their own recognizance.
(a) All persons charged with an offense shall be eligible for pretrial release before conviction. Pretrial release may only be denied when a person is charged with an offense listed in Section 110-6.1 or when the defendant has a high likelihood of willful flight, and after the court has held a hearing under Section 110-6.1.
Take the following example. Under current law judges have broad discretion to require bond for a defendant charged with “aggravated DUI” – a Class 4 felony that’s not included in the offenses listed in Section 110-6.1.
But under SAFE-T, that defendant can’t be detained at all. No matter how much of a flight risk or perceived threat he may be, beginning January 1, a judge would have no discretion to hold him. The act says he must be released on his own recognizance.
It’s the same for other Class 4 felonies and most misdemeanors.
(Note that the above language is muddled when it comes to “willful flight.” The language seems to say that “willful flight” can apply to any crime, but the specific language in Section 110-6.1 contradicts that assumption. It’s one of the many things that needs to be fixed in any new version of the law. In any case, it is nearly impossible to hold someone based on willful flight – see point 5 for more detail.)
3. There are dangerous non-detainable crimes under the act. For a defendant to be detained pending trial, he must be charged with an offense included in section 110-6.1(a). More specifically, the language in Section 110-6.1(a)(1) allows only non-probationable, forcible felonies to be detained, including first degree murder, home invasion, armed robbery and residential burglary, if the defendant is “a specific, real and present threat to any person or the community.” And while the rest of the act can give the impression that other categories of dangerous crimes are detainable, the practical reality is that many of them are simply non-detainable.
1. Start with probationable forcible felonies. Defendants charged with such crimes can be detained only if it can be shown they have “a high likelihood of willful flight.” Those crimes include most aggravated batteries, burglaries, robberies and arsons.
But given that it’s nearly impossible for prosecutors to prove “willful flight” – see point 5 below for more detail – the reality is that probationable crimes, for all practical purposes, are non-detainable.
2. Second, there are the variety of felonies listed under 110-6.1(a)(6) of the section, including aggravated discharge of a firearm, armed habitual criminal, gunrunning, firearms trafficking, and more. Defendants charged with such crimes can be detained only if it can be shown they are a “real and present threat to the physical safety of any specifically identifiable person or persons.”
Given that it’s nearly impossible for prosecutors to prove that such defendants are a danger to specific people – see point 4 below for more detail – the reality is that such crimes are, for all practical purposes, non-detainable.
3. Then there are the remaining Class 4 felonies that don’t fall under 110-6.1 of the act – for example lesser categories of aggravated DUI, mob action, obstructing justice, possession of a controlled substance and more. These crimes are not detainable for any reason.
4. Removal of the “threat to the community” standard from the new law renders many crimes virtually nondetainable. Under current law, judges can broadly determine the dangerousness of defendants by assessing their threat to “the community, person, persons or class of persons.”
Unfortunately, the SAFE-T Act strikes out that language.
(d) (Blank.) “Real and present threat to the physical safety of any person or persons”, as used in this Article, includes a threat to the community, person, persons or class of persons.
Beginning January 1, prosecutors will have to prove for most crimes that a defendant is a threat to a specific person or persons – not to the community at large – in order to detain said defendant. Proving a defendant is a threat to a specific person or persons could be nearly impossible for some crimes (see point 3 above).
The only set of crimes where the “threat to a community” will still apply going forward is non-probationable forcible felonies (those mentioned in point 3 above).
5. “A high likelihood of willful flight” is nearly impossible to prove, rendering many crimes non-detainable. The language in the SAFE-T Act is self-explanatory:
(e) Willful flight means planning or attempting to intentionally evade prosecution by concealing oneself. Simple past non-appearance in court alone is not evidence of future intent to evade prosecution.
That language ties prosecutors’ hands in two major ways. One, it requires them to prove intent to flee – something that’s almost impossible.
Second, the law forces prosecutors to ignore a defendant’s previous non-appearances in court, taking away a key piece of evidence that could prove “willful flight.”
6. Thousands of alleged criminals could be released on Jan. 1. The SAFE-T Act’s end to cash bail, along with making the detention of potentially dangerous defendants far more difficult, has prompted state’s attorneys across the state to warn they’ll have to let a large number of criminals out who are currently being held on bond come January 1st. Will County State’s Attorney Jim Glasgow says that in the Collar Counties alone, 4,000 to 5,000 defendants will be released.
The SAFE-T act clearly and unequivocally abolishes cash bail as of Jan. 1: “On and after January 1, 2023, the requirement of posting monetary bail is abolished…” The law contains no grandfather language for those currently being held for failing to post bail.
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Opposition to the SAFE-T Act is both widespread and bipartisan. One hundred of the 102 state’s attorneys are opposed to ending the cash bail system and that includes both Republican and Democrat state’s attorneys. In fact, many independent lawsuits by state’s attorneys or sheriffs have been filed in recent weeks.
And for extra evidence supporting our criticisms above, check out the legislation proposed by State Sen. Scott Bennett (D-Champaign).
Bennett’s changes to the SAFE-T Act includes language clarifying “pretrial release will apply to individuals arrested on or after Jan. 1, 2023. The measure also permits judges to deny pretrial release for any alleged crime if the person arrested poses a threat to the safety of any person or the community.”
The rampant crime in Illinois, in particular with what’s happening in Chicago and Cook County, has made public safety the number one issue for many Illinoisans voting on November 8. The serious flaws in the SAFE-T Act will only increase crime and put the public at increased risk. The legislature should never have passed this bill and Gov. J.B. Pritzker should never have signed it.
The SAFE-T Act should be scrapped and the legislature should start over – this time in the light of day with deliberate debate and public input.
Read more from Wirepoints:
- Illinois state’s attorneys demand changes to no-bail law
- Gov. Pritzker, Call A Special Session On SAFE-T Act. Voters Deserve To Know Before Election If Any Real Changes Will Be Made.
- Chicago crime statistics: Even worse than you think
- Chicago 2022 homicides will exceed 2019 baseline; McDonald’s CEO warns city’s future at stake
Audio and summary 
If this bill passes, say goodbye to local control over all Illinois parks and expect to see open drug and alcohol use, needles, no sanitation and fire hazards, but no ordinary park users.
Who are the two state’s attorneys who are not against the SAFE-T Act? I haven’t seen them mentioned anywhere. I would like to see them mentioned by name and the county that they represent. I’m guessing one of them is the Cook County state’s attorney. I’m guessing the other one is either the St. Clair County state’s attorney or a state’s attorney from one of the Chicago area counties. The SAFE-T Act passed by the Illinois General Assembly and signed into law by Pritzker doesn’t pursue true justice for crime and it does not treat all parties impacted by crime… Read more »
The only two IL county state’s attorneys supporting SAFE-T are Kim Foxx of Cook County and Eric Rinehart of Lake County. Notably, both of them were reported by the Tribune to be preparing the list of detainees they will release on January 1 under the act.
Thanks for the response.
As a resident of Madison County, which neighbors St. Clair County, I’m glad that the St Clair County state’s attorney isn’t among the two supporting the SAFE-T Act, but it’s a double whammy to have two state’s attorneys in the Chicago area supporting it.
Impeach Pritzker for signing that bill into law
Seriously? That doesn’t make any sense. The Illinois voters get to decide who the next governor is in one week. Why would you impeach? If the Illinois voters don’t want JB then they just need to vote him out.
Do you honestly think you have a better chance to impeach him rather than just vote him out? Time for you to sign up for a basic civics class.
Thanks for these clarifications on the misnomer, “The SAFE-T Act“. Nonetheless, more from sources not aligned with the likes of the ‘Chicago Sun-Times’, the unions, and the ‘Chicago Tribune are needed. I found much humor in this sentence on a recent mailing: ‘Don’t be fooled by Bailey’s Backers.’ ‘be fooled by Pritzker’s “much to lose” cohorts offering ‘water wings’ to try to keep Pritzker and his political future from sinking.
Here is a website outlining the dangers of the Safe-T Act, presumably by Illinois Senate Republicans (speculation by Illinois Review). Stop the SAFE-T Act
Illinois keeps digging in. If government digs deep enough they will reach China Or California. What’s the difference?
And if Proft’s papers hadn’t publicized how stupid the SAFE-T Act was originally written, we wouldn’t have gotten a serious conversation.
Ford admitting the SAFE-T Act is ludicrous in not so many words is icing on the cake.
Criminal Justice reform is one of the four pillars of the Black Caucus. The SAFE-T Act, E stands for Equity. Equity in the context of criminal justice means “a systemically racists criminal justice system puts too many minorities in jail”. This is not an exaggeration or hyperbole. This is what every description of the law and press release has said. The SAFE-T Act uses the E in Equity to ‘solve’ the problem of too many minorities in jail. The legislature passed the Black Caucus’s signature criminal justice reform law. And you can’t reduce the number of minorities in fail unless… Read more »
Debstor and Mark Glennon – Does the Act eliminate officers’ qualified immunity?
That’s the impression I get from Debstor’s comment “make police officers personally liable …”
That’s a great way to support ‘quiet quitting’ and ‘fetal’ policing – and who could blame cops for not being willing to be devoured by the law they’ve sworn to uphold?
Your thoughts, please.
Pat S, there is nothing in it directly on qualified immunity. However, it does open cops up to anonymous complaints. More details on that in a column coming shortly from Matt, my colleague. Should be posted tomorrow.
I was wrong, it does not remove qualified immunity. I thought it was included but upon my research after reviewing Mark’s comment, it does not remove qualified immunity. The rest however is accurate.
Thank you, gentlemen for that clarification.
My understanding is that qualified immunity applies to officers of the court and politicians as well. If one group loses it, they all should.
This ‘anonymous complaint’ stuff is bull pucky! What a great way to stuff up the system and hamstring officers.
I would naively ask ‘whose side are they on?’ But the answer is pretty obvious and it isn’t the side of crime victims or law & order.
Chicago needs Cadillac legislators but they’ve had to settle for a Ford!
perhaps you forgot that they have settled on measures less helpul that ‘the twenty mule team’ so we and they are still caught in Chicago (Death Valley).
Seriously, does anyone still think Illinois can reverse course despite all the evidence to the contrary? Instead of finding ways to reduce spending, crime, and corruption, it offers up the safe-t act, Amendment 1, and the same gov for reelection. Instead of reducing public union power, it’s actually considering increasing it. Is anyone even discussing that constitutional change to lower public pensions that Wirepoints used to talk about?
New York was failing financially in the ’70s. The city could no longer borrow money to operate and New York state took over its finances. Popular social programs were cut. Eventually the city found breakeven. Then the city experienced high crime in the ’90s. Tough on crime mayors – Rudy Giuliani and to a lesser extent, Michael Bloomberg – imposed “broken windows” policies and made the city safer. But true to form, New York is sliding backward again. The common theme over the last 50 years? Progressive nonsense, profligate spending, immoral policies. Illinois is following a similar theme and, thus,… Read more »
As I read this excellent summation of the act, I truly wondered why a prudent representative of the people would vote in favor of this, or at least demand some measure of debate before its passage. I’ve concluded that (a) our representatives aren’t prudent, and (b) they aren’t representing the people. Rather, they are party hacks, unable to step away from their ideological blindness to realize the danger they’ve created. Only when one of their loved ones becomes a victim might they recognize the mistake they’ve made. Why do we have to pay for this? Unless this act is overhauled,… Read more »
The communists would betray their own parents and turn them into the KGB for being insufficiently supportive of the communist party. These ideologues will never change their mind which is why only a handful of ‘whichever way the wind is blowing’ democrats have expressed any reservations about the unSAFE-T Act. It’s easy to see how we got here today. Madigan gerrymandered the legislature so ruthlessly Democrat that he neutered the ILGOP completely. As a result, the real election in most races is the primary. The general is already a foregone conclusion in partisan districts. Primary races are a ‘first past… Read more »
“Unless this act is overhauled, people need to arm up to protect themselves, their families and their belongings.”
We all know that defending oneself against a criminal or some other member of the favored class will result in your own prosecution, and a jury of 12 will find you guilty, guilty, guilty! “Sure, he had a gun pointed at your child, but you didn’t have to shoot him first! Just give him the wallet, he needed money for bread to feed his family!”
The Governor should be held personally responsible for the damage done with this law.
Doesn’t he realize that under this law, that the criminals have freedom to do whatever they want to without worry?
Under this law, it’s possible to commit several crimes in a day and the offender can just walk free each time.
Honest citizens don’t have a chance in this state.
The Governor needs to be in jail.
Love the criminals, hate the victims should be the name of the SAFE T. You, as a victim, have no say in what goes on in a criminal proceeding in Cook County. You as a victim have no rights. You as a victim have no advocate in the Cook County justice system. You as a victim are the problem.
Not only Cook County – the whole state.
My biggest takeaway from the SAFE-T Act is that the parties advocating in its favor will not accept any changes to the act as it exists today. Not a single one. They seem to think they have crafted a perfect, unimpeachable law on the first try. That is extremism.
The Democratic Party owns this because they enabled these extremists and kowtowed to every single demand they made when drafting the legislation. Now the moderates in their party have awakened and are demanding compromise, pissing off the extremists even more. The Dems put themselves in this uncomfortable position..
You nailed it, nixit.