Illinois’ SAFE-T Act: Clickbait or Catastrophe?

On January 22, 2021, Governor J.B. Pritzker signed the Illinois, Safety, Accountability, Fairness and Equity-Today Act (“SAFE-T Act”).[1] The purpose of the SAFE-T Act is “to establish statewide use of force standards for law enforcement agencies effective January 1, 2022.”[2] Specifically, the new Illinois statute reforms three areas: policing, pretrial, and corrections.[3] The SAFE-T Act has sparked numerous debates; however, the most controversial topic concerns the Pretrial Fairness Act (“PFA”), which was set to eliminate cash bail[4] on January 1, 2023.[5]

The PFA will abolish Illinois’ cash bail system, which allows a person to pay an amount of money as a condition of their release from custody, pending their set trial date.[6] Under the new law, criminal charges are categorized as one of the following: “those that can be called detainable offenses under 725 ILCS 5/110-6.1, those that are detainable only under the condition that the defendant is proven highly likely to willfully flee if not detained, and those that can be labeled purely non-detainable.”[7] However, despite these categories, a judge may detain a defendant if the state can “prov[e] by clear and convincing evidence that (1) there is proof or great presumption that the defendant committed one of the qualifying offenses, (2) the defendant poses a threat to a specific, identifiable person, and (3) no conditions on release can mitigate that threat or the defendant’s willful flight.”[8] Thus, these so-called “non-detainable” offenses may nevertheless be “detainable”; the PFA merely imposes a higher burden on the prosecution.

Leading up to the enactment of the heavily criticized PFA, the Illinois House and Senate passed a series of amendments that sought to address fear and misinformation regarding the SAFE-T Act.[9] For example, critics mistakenly believe that the PFA will make certain offenses “non-detainable.”[10] These amendments aim to clarify the detention categories, expand processes for transitioning to cashless bail, and specify definitions of “willful flight” and “dangerousness.”[11] Despite these efforts, sixty-four counties sued Governor Pritzker, Attorney General Kwame Raoul, Senate President Donald Harmon, and Speaker of the House Christopher Welch in opposition of the SAFE-T Act.[12]

In one of these sixty-four counties, Judge Thomas W. Cunnington of Kankakee County held that the elimination of cash bail is unconstitutional, explaining that “it violates the separation of powers clause,[13] the Victim Rights Act[14] and unconstitutionally amends Article 1, Section 9 of the Constitution[15] because the voters were denied their right to vote on such amendments.”[16] In response to Judge Cunnington’s decision, Attorney General Raoul appealed to the Illinois Supreme Court, which halted the abolition of cash bail just one day before the PFA’s implementation “to maintain consistent pretrial procedures throughout Illinois.”[17] The Illinois Supreme Court will hear oral arguments beginning in March 2023, which will determine whether Illinois will be the first state to completely eliminate cash bail.[18]

A basic tenet of the United States criminal justice system is that an individual is presumed innocent until proven guilty.[19] Yet, in 2019, 89 percent of the Illinois jail population were pretrial detainees and only 11 percent were sentenced inmates.[20] While cash bail is meant to encourage defendants to show up in court and protect public safety, it simultaneously and inherently targets individuals of lower economic status.[21] Simply put, the rich can buy their freedom while the poor have no choice but to sit in jail.[22] Those who cannot afford bail face unemployment, severed social connection, a greater risk of conviction, and an increased likelihood of future criminal involvement.[23] Some may even face death.

For example, Kalief Browder, a 16-year-old from New York, was accused of stealing a backpack.[24] Because he could not afford bail, he was forced to wait three years in jail until his case was decided.[25] By the time Kalief was found not guilty, he had already endured three years of unjust punishment, including physical abuse from other inmates.[26] Two years after his release, Kalief took his own life.[27] Had cash bail been eliminated, Kalief would likely still be alive today.

Despite their innocence, others who cannot afford bail feel they have no choice but to plead guilty. They may be desperate to avoid the consequences that accompany pretrial detainment, such as losing their jobs, homes, or custody of their children.[28] Even if an individual will likely be acquitted, they may nevertheless opt out of a trial that could take weeks or months to begin.[29] If cash bail is eliminated, the poor will no longer be forced to sacrifice their innocence.

Illinois residents are concerned for public safety, fearing that the PFA will release violent criminals back onto the streets, resulting in increased crime rates. In fact, critics have gone so far as to deem it a “get out of jail free card”[30] or a “Purge Law.”[31] However, in other states that have implemented similar cash bail reforms, rates of pretrial re-arrest remain unchanged.[32] These misinformed individuals fail to consider the categories of detainable and non-detainable offenses described in the PFA. In addition to these categories, a judge may detain the accused if the defendant likely committed the offense or if the defendant is a danger to others or a flight risk. Under the PFA, violent criminals will not be released. Arguably, more violent criminals will be detained because the new law considers only the facts; it does not care if the accused is wealthy or poor. As a result, those like Kalief Browder, non-violent individuals who cannot afford bail, are not forced to spend weeks, months, or years in jail before they are found not guilty.

While it may be difficult to ignore the shocking clickbait headlines and misinformation regarding the SAFE-T Act, the elimination of cash bail will undoubtedly benefit Illinois by creating a more equitable and effective system. If the elimination of cash bail does not increase crime, then why should Illinois continue to overcrowd jails and encourage discrimination? An individual’s economic status should carry no weight in our justice system, nor should it be the determining factor in granting or denying freedom.

[1] Jessica Reichert, Aaron Zivic & Karen Sheley, The 2021 Safe-T Act: ICJICA Roles and Responsibilities, Ill. Crim. Just. Info. Auth.  (July 15, 2021), icjia.illinois.gov/researchhub/articles/the-2021-safe-t-act-icjia-roles-and-responsibilities.

[2] H.B. 3653, 101st Gen. Assemb., Sess. (Ill. 2021).

[3] Reichert, et. al., supra note 1.

[4] 725 I.L.C.S. 195/2.

[5] Shannon Heffernan, Beyond the heated rhetoric about bail, what else is in the SAFE-T Act?, WBEZ Chicago (Oct. 26, 2022), www.wbez.org/stories/illinois-safe-t-act-what-is-in-it. See infra note 15 (providing relevant section of the Illinois state constitution).

[6] Id.

[7] Joe Tabor & Perry Zhao, Everything Illinoisans Need to Know About the SAFE-T Act, Ill.Pol’y (Nov. 18, 2022), www.illinoispolicy.org/everything-illinoisans-need-to-know-about-the-safe-t-act.

[8] Id.

[9] Summary of Amendments to Public Act 101-0652, the SAFE-T Act, The Civic Federation (Dec. 16, 2022), www.civicfed.org/civic-federation/blog/summary-amendments-public-act-101-0652-safe-t-act. See H.B. 1095, 102nd Gen. Assemb., Sess. (Ill. 2022) (noting that the Amendments were passed by the Illinois House and Senate on December 1, 2022 and signed by Governor Pritzker on December 6, 2021).

[10] John Clark, Is a ‘Purge’ law coming to Illinois?, My State Line (Sep. 19, 2022), www.mystateline.com/news/local-news/is-a-purge-law-coming-to-illinois. “The law would make 12 offenses “non-detainable,” including second-degree murder, arson, drug-induced homicide, robbery, kidnapping, aggravated battery, burglary, intimidation, aggravated driving under the influence, fleeing and eluding, drug offenses, and threatening a public official.” Id.

[11] Governor Pritzker Signs SAFE-T Act Amendment, Ill. gov. News (Dec. 6, 2022), www.illinois.gov/news/press-release.25766.html.

[12] Clarissa Cowley & Rhyan Henson, Illinois Supreme Court Puts SAFE-T Act on Hold, Cash Bail Still in Effect, 5 On Your Side (Dec. 31, 2022), www.ksdk.com/article/news/politics/illinois-safe-t-act-ruled-unconstitutional-headed-to-illinois-supreme-court/.

[13] Il. Const. art. 2, § 1. “The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.”

[14] 725 I.L.C.S. 120/2. “The purpose of this Act is to implement, preserve, protect, and enforce the rights guaranteed to crime victims….”

[15] Il. Const. art. 1, § 9. “All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great….”

[16] Id. “[Judge Cunnington] said the legislature’s action in violation of the separation of powers ‘stripped away’ the court’s ability to ensure the safety of the victim and victim’s family.” Compare with Mark Rivera, Eric Horng & Christian Piekos, Illinois Bail Reform Change Blocked After Judge Rules Portion of the SAFE-T Act Unconstitutional, ABC 7 (Dec. 29, 2022), abc7chicago.com/illinois-safe-t-act-safe-t-lawsuit-safety-cash-bail. “[W]ith the recent amendments to the SAFE-T Act, [Attorney General Raoul] think[s] a judge’s discretion with regards to pretrial detention is expanded.”

[17] Mitchell Armentrout & Matthew Hendrickson, Illinois Supreme Court Halts Abolition of Cash Bail, WBEZ Chicago (Dec. 31, 2022), www.wbez.org/stories/illinois-supreme-court-halts-abolition-of-cash-bail.

[18] Craig Wall, Illinois Supreme Court Won’t Hear Arguments on SAFE-T Act, Ending Cash Bail Until March, ABC 7 (Jan. 5, 2023), abc7chicago.com/illinois-no-cash-bail-law-safe-t-act-supreme-court-2023.

[19] Maedot Teka, Is the Presumption of Innocence in the Constitution?, LawInfo. (Mar. 26, 2021), www.lawinfo.com/resources/criminal-defense/is-the-presumption-of-innocence-in-the-consti.

[20] David Olson, Individuals Held in Pretrial Detention and Under Pretrial Supervision in the Community, LUC CCJ (June 18, 2022), loyolaccj.org/pfa/blog/pfa-jail.

[21] Whitney Malcolm & Vittorio Nastasi, The SAFE-T Act’s impact on cash bail in Illinois, Reason Foundation (Oct. 27, 2022), reason.org/commentary/understanding-the-illinois-safe-t-acts-impact-on-cash-bail.

[22] 725 I.L.C.S. 5/103-5(a). “Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he or she was taken into custody unless [there is a] delay….” See also Arthur McGibbons, Right to a Speedy Trial: How a Speedy Trial Works in Illinois, Crim. Nuggets (Mar. 5, 2020) illinoiscaselaw.com/right-to-a-speedy-trial (explaining that the Speedy Trial Act requires a defendant to make a written or oral demand for trial every time there is a proposed delay; thus, a defendant may inadvertently waive this right); Carlos Ballesteros, In Illinois, You (Still) Don’t Have a Right to a Speedy Trial, InjusticeWatch (June 24, 2021), www.injusticewatch.org/news/courts/2021/speedy-trial-illinois-supreme-court (explaining that the Speedy Trial Act was suspended in 2020 due to the Covid-19 pandemic and over 2,000 defendants waited in jail for a year or more).

[23] Malcom & Nastasi, supra note 21.

[24] Rehabilitation Enables Dreams, Why are More States Than Ever Passing Laws For No Cash Bail and Pretrial Detention?, stoprecidivism.org/blog/why-are-more-states-than-ever-passing-laws-for-no-cash-bail-and-pretrial-detention (last visited Feb. 16, 2023).

[25] Id.

[26] Id.

[27] Id.

[28] Will Snowden, Money Bail is Unjust and Should End, Forbes EQ (Oct. 1, 2021), www.forbes.com/sites/forbeseq/2021/10/01/money-bail-is-unjust-and-should-end.

[29] Id.

[30] Sally Schulze, Illinois SAFE-T Act: New law is a ‘get out of jail free card,’ former prosecutor says, Fox 32 Chicago (Oct. 27, 2022), www.fox32chicago.com/news/illinois-safe-t-act-get-out-of-jail-free-card-former-prosecutor-says. Former prosecutor at the Cook County State’s Attorney, Dan Kirk, stated “[the SAFE-T Act] severely limits a judge’s discretion in who a judge can hold, even when that person is a danger to the community. And that’s the scary proposition about this.” Id.

[31] Carlos Ballesteros, There’s no ‘Purge Law’: Debunking right-wing propaganda about the SAFE-T Act, Injustice Watch (Sept. 15, 2022), www.injusticewatch.org/news/prisons-and-jails/2022/safe-t-act-purge-law-illinois-fact-check. “Misinformation has been amplified by viral TikTok and YouTube videos that have branded the SAFE-T Act as the ‘Purge Law,’ a reference to the popular Hollywood horror franchise in which all crime is legal….” Id.

[32] Allie Preston & Rachel Eisenberg, Cash Bail Reform Is Not a Threat to Public Safety, Ctr. Am. Progress (Sep. 19, 2022), www.americanprogress.org/article/cash-bail-reform-is-not-a-threat-to-public-safety.  “In New York, New Jersey, Washington, D.C., and Santa Clara County, California, for example, at least 99 percent of people completed the pretrial period without an arrest for a serious crime.” Id. “One study found that cash bail assignment was associated with a 6 percent to 9 percent increase in recidivism.” Id.