The SAFE-T Act should be repealed or amended

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The Illinois State Capitol in Springfield.

Seth Perlman/ AP

Labeling legislation as reform does not mean it creates better outcomes for all people, nor does it mean that it should be immune from careful scrutiny.

The sponsors of the SAFE-T Act have asserted they were addressing flaws in our state’s criminal justice system. If this was true, then input should have come from judges, state prosecutors, public defenders, private criminal defense attorneys, law enforcement officers, probation officers, civil rights advocates, victim’s rights groups and clerks of the circuit courts.

The proper way to address the merits of a bill is to hold hearings, allow proponents and opponents to be heard and allow the members of the General Assembly to discuss both the purpose of the proposed law and the precise statutory language to be adopted.

In other words, create a legislative history.    

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The 764-page SAFE-T Act was introduced in the Illinois Senate at 4 a.m., and it passed at 5 a.m. It took the Illinois Senate only one hour to radically alter Illinois’ justice system. Hours later, the SAFE-T Act was introduced in the Illinois House for the first time. It passed at 11 a.m. No bona fide hearings or debates occurred. There was no opportunity for input from proponents or opponents. Ramrodding through any bill, let alone one that will profoundly affect the lives and safety of nearly 13 million Illinoisans, is irresponsible, improper and wrong.

We have concerns regarding the constitutionality of this act and a number of its troubling parts.

First, the SAFE-T Act eliminates cash bail. Article 1, Section 9 of the Illinois Constitution’s Bill of Rights clearly states that a defendant has a right to bail set by the court, except in very limited circumstances. The Legislature does not have the authority to pass a law that amends the Illinois Constitution, nor can it be amended by executive orders.    

Second, the SAFE-T Act is not confined to one subject. The act addresses abolition of cash bail, police training, complaints against police officers, use of body cameras, how a judge must evaluate a petition for detention, cancellation of automobile insurance and how the State Board of Elections should gather demographic data to determine legislative districts.

But the single-subject clause in the Illinois Constitution reads: “Bills, except bills for appropriations and for the codification, revision or rearrangement of laws, shall be confined to one subject.”

The Illinois Supreme Court has stated the single-subject rule is designed to prevent the passage of legislation that, if standing alone, could not muster the necessary votes for enactment. By limiting a bill to a single subject, legislators can better understand and more intelligently debate the issues. The single-subject clause promotes direct confrontation and informed discussion of legislative issues. The SAFE-T Act, which passed in the House with the bare minimum of 60 votes, clearly violates the constitutional mandate.

Absurd provisions

The law also creates a list of new absurdities. One such example deals with flight risks. The court may choose to hold someone in custody if they are a flight risk, but detention is only allowed if the state’s attorney chooses to make that argument and proves to the court the defendant has a specific intention to flee. Notably, this law provides that “past non-appearance in court alone is not evidence of future intent to evade prosecution” — meaning that judges are effectively prohibited from considering the defendant’s past behavior in consideration of the likelihood the defendant will appear for his trial if he is released.

In other words, even if the defendant has failed to appear as ordered numerous times in the past, the court has to engage in some sort of legal fiction, ignore that history and presume that the defendant is going to show up in the future.   

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Equally absurd are the provisions addressing violations of electronic monitoring. If a person leaves his home without permission, that person cannot be charged with escape unless the person has been out for 48 hours. Although law enforcement retains the ability to bring them in based upon a violation of bail bond, the 48-hour period is ripe for manipulation by defendants. One could cut off the monitoring device attached to their ankle and if the person returns before the 48-hour period has passed, that person cannot be charged with escape. The defendant now has another chance to avoid being monitored and again cannot be charged with escape until the 48-hour period has paused.

The criminal justice system in Illinois may very well be in need of adjustment and change. But the SAFE-T Act is not constitutionally sound and contains provisions that do not protect the public. It should be repealed. A new law should be introduced with provisions that are rational, constitutional and in compliance with the single-subject rule.

Legislators and the governor should follow the state Constitution when creating laws and signing them into law. This is no time to rush. 

Daniel Locallo served as a judge of the Circuit Court of Cook County from 1986 to 2009. Daniel Kirk served as chief of staff and the first assistant state’s attorney of Cook County from 2008 to 2016. Alan Spellberg was chief of appeals in the Cook County State’s Attorney’s office from 2011 to 2021.

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October 17, 2022 at 01:09PM

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