Illinois State University professor Miltonette Craig, who researches law enforcement and police community relations, is shown at Schroeder Hall on Monday. She said the criminal reform bill signed into law is “acknowledgement that there are racial disparities in the system.”
Illinois State University professor Miltonette Craig is shown Monday.
BLOOMINGTON — Fairness and transparency are among the major themes law professionals in Bloomington-Normal want to see from the bill that makes Illinois the first state to completely eliminate cash bail. But many law enforcement officials and attorneys are concerned with how the community will be affected when most defendants are released from custody.
The move was one of the key aspects of the 764-page bill Gov. J.B. Pritzker signed Monday. House Bill 3653, which passed the General Assembly at the end of the lame-duck session on Jan. 13, followed the culmination of nearly 30 hours of virtual hearings in committees, coordination with the offices of the governor and attorney general, and private negotiations with law enforcement groups and the Illinois court system.
The bill was led by the Legislative Black Caucus, having taken root in the aftermath of several high-profile deaths at the hands of police, and also includes various law enforcement accountability measures.
The changes will be implemented over multiple years. The version that passed ends cash bail in Illinois in two years, mandates body-worn cameras by 2025 and changes use-of-force laws. It does not change collective bargaining, strip officers of their qualified immunity or target the funding of departments that do not comply with body camera laws.
Miltonette Craig, a criminal justice professor at Illinois State University with a focus on law and police-community relations, said she was impressed with the bill even at the drafting stage and it was “really refreshing” to see it pass.
“It’s the recognition and the acknowledgement that there are racial disparities in the system and trying to address those criminal justice policies that greatly contribute to the disparities, because if we hit them head on, then we can hopefully see more fairness in our reformation process,” she said.
Per the bill, effective Jan. 1, 2023, “all persons charged with an offense shall be eligible for pretrial release before conviction,” and the “requirement of posting monetary bail” will be abolished.
Activists, lawmakers and officials who advocate for criminal justice reform have long pointed to the practice of cash bail as a system due for an overhaul. Advocates for the bill have maintained it shows legislative support for racial justice in Illinois.
“Gov. Pritzker and the Illinois legislature have taken a bold step to stand with the millions of people that took to the streets in support of the Black Lives Matter movement,” said Olivia Butts, a member of the Bloomington-Normal chapter of Black Lives Matter. “All too often, these calls for desperately needed changes to our criminal justice system have been met with empty rhetoric. By ending money bond, Gov. Pritzker and the Illinois legislature are setting an example of what prioritizing racial justice and implementing real criminal justice reform looks like.”
Butts called this bill “big win” and said what she’s most excited to see is “ending the unfair wealth-based system of pretrial incarceration. No one should be locked up simply because they cannot afford their bond.”
Phil Finegan, a criminal defense attorney who practices in Bloomington, said the bill was “overdue because I agree with the sentiment that it’s not right to keep people in custody just because they don’t have any money.”
Officials are just beginning the task of figuring out what the legislation will mean and how it will affect the criminal justice system in Illinois.
“We are still trying to find information just like everybody else,” said McLean County Sheriff Jon Sandage. “Honestly, I don’t know if a lot of the people who voted for this know how it is going to work. I think it was rushed through in such a matter that there are going to be a lot of unanswered questions, and so we are just going to have to sit back and see how it hashes out.”
Revenues for individual counties will take a hit when this legislation goes into effect, although it is still unclear how.
“I don’t know how the breakdown on revenue from bonds works,” Sandage said. “Most of it goes to the circuit clerk’s office, so when people talk about revenue at the jail, I have to laugh because on a balance sheet we are very much in the hole when it comes to running a jail. As far as the breakdown, I don’t know. We do get a $35 bond fee when people bond out. But the rest of it goes to the circuit clerk’s office and then they disperse it.”
McLean County State’s Attorney Don Knapp said his apprehension regarding HB 3653 lies not with the elimination of cash bail, but with the local judges being stripped of their decision-making power when it comes to detention of defendants.
“Instead of a local judge — a decentralized local judge — who puts their eyes on the defendant, who looks at the defendant’s criminal history, who looks at all the circumstances surrounding the case beforehand, making the decision of who’s in jail and who’s not in jail, some legislators down in Springfield have made that decision for us,” Knapp said.
Under the bill, defendants can still qualify for detention if the court determines they pose a threat to public safety.
“There’s still going to be people in the county jail,” said Adam Ghrist, a defense attorney and former state and federal prosecutor now practicing in Bloomington. “The law builds in presumptions for detention for all kinds of offenses including sex offenses, weapons offenses, forcible felonies, domestic battery, household member victims, things like that.”
“The court’s still going to detain people that they believe should be detained. But there’s going to be a lot more steps to get there and that’s one of the things the law has built in — a lot more procedure. The law certainly makes it more difficult if a state’s attorney wants to keep someone detained.”
In the federal court system where cash bail is already not used, common conditions of pretrial release include GPS monitoring, home confinement or home detention and addition-based conditions, Ghrist said. However, some offenses are also presumed to be detainable at the federal level.
Finegan said one of his main concerns is the likelihood that defendants will reoffend while they are out on pretrial release.
“If you catch a new case while you’re out on bond, now any sentence on that case is going to be mandatory consecutive to the first case. … They could be doing themselves a lot of harm and setting themselves up for a long prison sentence,” he said. Having seen defendants “in crisis mode” because of drug-use or domestic violence situations, “I’ve found that it’s beneficial to them to sometimes sit in the county jail for a little while.”
Knapp said he believes this bill was not drafted with “victim-centric principles,” an opinion echoed by many in the local law enforcement community.
“We were immediately concerned about language contained in the bill that seemingly conflicts with protections afforded by Diane’s Law,” he said, referencing an Illinois law that allows courts to order risk assessments in domestic violence cases and temporarily hold defendants without bond.
Mary Koll, the McLean County assistant state’s attorney who oversees domestic violence cases, said while she hasn’t had the opportunity to analyze the bill in its entirety, “I think there will be a lot of unintended consequences” when it comes to victims.
Craig, the ISU professor, agreed that making sure victims feel safe needs to be a priority for courts.
“I would not want anyone to feel in danger, and so if the court does decide that this person should be released without having to pay any cash, then there should be appropriate steps taken, like protective orders and making sure that the victim feels safe,” she said.
Finegan said he believes the conditions of pretrial release are currently effective and will continue to be in this new system.
Ghrist added, “In a case in which there is a specific threat to the safety or harm of the victim, that’s one of the things the court considers. Detention is still an option for the court if it makes the appropriate findings. I think all of the same safeguards are there for victims.”
He is, however, concerned the law “is unclear and inconsistent when explaining if the court is to consider an individual’s threat to the safety of the community, or a threat to a specific identified individual.”
If threat to a specific person’s safety must be identified before a defendant is held in custody, “I am concerned the law will not adequately protect the community,” he said. “If that becomes the law, and was the intent of the drafters, it appears the intent was to make it impossible for someone who poses a real but general threat to our community safety from being detained by the court. I do not believe that will keep our community safe, nor is it consistent with the standard in federal court.”
‘Level the playing field’
In her criminal law classes, Craig’s students identify four main flaws in the justice system, and cash bail has always been on that list.
“The purpose of bail is to make sure that society is protected, like public safety if it’s a violent crime, to make sure people come back for their arraignment — if they’re a flight risk, we don’t want to give someone bail,” she said. “But ideally we want everyone to be able to get out of jail because then they can more successfully fight their case.”
The abolition may “level the playing field” in that regard, Craig said.
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“Now money is not the object that’s at the front and center of whether you can access resources as a defendant, because as we know, not everyone who is arrested and charged has actually done the crime, so it can create more fairness in that way that they have the time and the opportunity,” she said.
Craig said about 70% of people held in U.S. jails are only there because they cannot pay.
The cash bail system “does disproportionately affect racial minorities because they are often more likely to be on the lower socioeconomic status, especially when you look at the country as a whole,” she said.
She also said studies have shown Black and Latinx people have higher law enforcement rates in this country, “meaning their actions are criminalized more often, and so if we see that disparity there and then we have the bail system that is intertwined with class as well, then that’s when we see an exacerbation of that disproportionality.”
Craig and the two defense attorneys noted when defendants are released instead of detained, they can continue to contribute to society, go to work, attend school and seek treatment.
“Anytime someone has their liberty without being confined is a benefit, of course, but then they get to engage in all of the things that someone otherwise would when they’re not in jail,” Ghrist said.
Reducing jail populations also may be beneficial for counties with limited resources, Craig said.
“They don’t have to double or triple bunk people if necessary because there are too many bodies for that facility,” she said. “Then especially within the pandemic, we will be able to get more social distancing because the population will be lower, and ideally we don’t want people just to sit in jail because we want to give them the opportunity to go back to productivity in their lives.”
McLean County Jail officials reported the average daily population of the detention center in January was about 242 people.
A ‘better prediction system’
Craig said this bill is a “great step forward” but a drawback might be if, in a few years, the racial disparities remain.
“Then this isn’t it,” she said. “So then it has to be up to other members in the court system — particularly judges — to make sure that things are being decided on impartially.”
Knapp said, “What I would like to see is the judges having the same level of discretion as they currently do.”
Ghrist said when put into practice, the application of the law will likely be different in different courtrooms.
“The system, as many rules as you build into it, is still practiced by humans, and every human looks at a set of facts and may see different angles on it,” he said.
Transparency, impartiality and an informational campaign for the law are the three main results Craig would like to see for HB 3653.
“The development of a better prediction system” may help with transparency to make it clear how judges make their decisions when it comes to detention, Craig said.
When this bill goes into effect, Finegan said he just wants to see fairness.
“I want to see fairness between socio-economic demographics. I want my client who’s got a dad who is a doctor to be treated the same as my client who has been raised by his mother and never had a dad and doesn’t have $100, let alone $1,000.”
13 parts of the criminal justice reform package Pritzker signed
Contact Kelsey Watznauer at (309) 820-3254. Follow her on Twitter: @kwatznauer.
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Region: Bloomington,Feeds,News,City: Bloomington,Region: Central
February 27, 2021 at 07:02PM