SAFE-T Act advocate defends no cash bail as it faces challenges in the courtroom and the statehouse

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Several dozen people gathered in November at the Freeport Public Library to hear an ACLU lawyer’s presentation on the SAFE-T Act. When a no-cash bail system goes into effect in January, Illinois will be the first in the nation to have one. The elimination of cash bail is part of the Pretrial Fairness Act, a segment of the criminal justice reform legislation.

Patricia Norman, president of the local NAACP chapter and one of the sponsors of the event, says the information is necessary after the law became the target of negative ads during the election season.

“We hear all the hype, and that it’s wrong,” Norman said.

“And well, they’re being sued by 60 lawyers. We just want to know the truth.”

One of the examples of that “hype” Norman referred to was that the Pretrial Fairness Act, wouldn’t allow for police to arrest someone who trespasses over private property. Ben Ruddell, Criminal Justice Policy director for the ACLU Illinois, said that’s not true.

“It doesn’t accurately reflect what the law says,” he said. “Police do have the discretion to remove trespassers who will not vacate the premises.”

Under the Safe-T Act, someone accused of ordinance violations or low-level misdemeanors like trespassing would receive a citation and a date to see a judge. But Ruddell says there are exceptions if a defendant is considered a danger to a person or a flight risk.

In addition to the misinformation about the law and calls for repeal from Republicans, the legislation faces a lawsuit from state’s attorneys and sheriffs across the state challenging its constitutionality.

Among them is Winnebago County State’s Attorney J. Hanley.

He wrote an op-ed in September stating that beginning January 1, “about 400 criminal defendants will be released back into our community.”

Hanley said both parties have delved into misinformation and acknowledged his role.

“I regrettably probably contributed to this in a way that I do regret,” Hanley said. “It’s not going to be a purge.”

His concern is that the law does not balance the notion of “innocence before proven guilty” or presumption of innocence, with the administration of justice and community safety.

“I think that detention net is too restrictive,” he said.

“And I also think the standards for when you can detain someone, either on a dangerous standard or willful flight standard, are also far too restrictive.”

Under the Act, a judge won’t be allowed to use a defendant’s prior criminal record, part of the risk assessments, as the sole basis when deciding on whether to detain someone. And the threshold prosecutors must meet to petition for detention is also higher.

Ruddell said the law does take power away from prosecutors, but the narrow threshold is necessary since someone’s past criminal history often reflects racial bias in the justice system.

“There are things that are used disproportionately against members of certain groups, namely black people,” Ruddell said.

“They are jailed, arrested, over-policed at a rate much higher than whites that doesn’t correspond with a higher rate of committing crimes.”

Hanley said implementing the law will be challenging. The legislation requires prosecutors to petition a judge for a detention hearing within 48 hours of a defendant’s initial hearing. Defendants would also have a right to legal representation in the proceedings under the law.

“It’s a tough time to be an employer of attorneys and particularly government attorneys, and staff,” Hanley said.

“And so, in an environment where we’re already short staffed, we have a statute that’s going to put tremendous amount of pressure on ourselves, the public defender’s office, the judiciary and pretrial services.”

He said counties throughout the state will face hard times financially with the loss of cash bond.

“If I’m arrested for a crime, I post my $5,000, I end up pleading guilty, and let’s say I get probation, my fines and costs might equal $3,000,” Hanley said. “That’s taken from the bond that I posted. And so, it’s almost more of a collection issue.”

Ruddell says the dependency on bond money to help fund the courts is a problem not unique to Illinois.

“We shouldn’t incentivize needing to have a certain number of people charged with crimes in order to collect a certain amount of money so that we can operate a court system,” Ruddell said.

“That is a perverse incentive that just shouldn’t be there. Our courts should be there to do justice, not to extract money to perpetuate themselves.”

Hanley said the law is unconstitutional because it didn’t follow the proper procedure in the review of the bill, and some of the language is too vague.

Hanley said he supports eliminating cash bail, but hopes the lawsuit spurs legislators to address problems with the language of the law. He leaves the door open for dropping his participation in the lawsuit if enough changes are made.

“I would look at the bill and say, ‘hey, you know, is this something that I think is in the best interest of the people of Winnebago County in the state of Illinois?’”

Ruddell doesn’t believe the lawsuit has a lot of legal merit.

“I think they’re more of a PR stunt by prosecutors who are upset with aspects of the pretrial Fairness Act that they don’t like,” Ruddell said.

He’s more concerned about an amendment filed by state senator Scott M. Bennett, a Champaign Democrat. The proposal would give prosecutors more discretion to petition a judge for a defendant’s detention. While the Democrats gained a larger majority in Springfield after the November election, the party’s support for the law is not unanimous. It has eight co-sponsors.

Ruddell says the amendment would give state’s attorneys the authority to jail anyone without restrictions.

“That would almost certainly cause the jail population to rise instead of fall, and would make the racial disparities in the system worse rather than better,” he said.

The Pretrial Fairness Act is is about more than ending cash bail, he said.

“Equally important is that we stopped jailing so many people unnecessarily because it’s messing up people’s lives, it’s harming their families, it’s harming their communities, and it’s making Illinois less safe today,” Ruddell said.

He argues that “the pretrial Fairness Act will make our communities safer.”

This portion of the law is only one part of the legislation that ushers in major reform of the state’s criminal justice system. The law also aims to increase police accountability and reporting and transparency in Illinois jails and prisons.

Any changes to the law would have to be approved by the legislature with a supermajority during the veto session that ends on Thursday. After that, amendments can be considered in the lame duck session set after January first with a simple majority.

Meanwhile, the civil lawsuit is set to begin on December 7, in Kankakee County.

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December 1, 2022 at 06:58AM

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