Pretrial detention changes to SAFE-T Act will head to Pritzker; Peters calls measure ‘my version of Obamacare’

SPRINGFIELD, Ill. – Lawmakers on Thursday passed a long-awaited amendment to the SAFE-T Act criminal justice reform’s provisions that will eliminate cash bail when the calendar hits 2023.

The measure expands the list of crimes for which a judge can order pretrial detention, adds to what a judge can consider when determining if a defendant is a risk of willful flight from prosecution, and standardizes language regarding a defendant’s danger to the public safety among several other changes.

The measure will still end the existing wealth-based system of pretrial detention in favor of one based on an offender’s level of risk to the public or of fleeing prosecution. 

“Illinois, on January 1, 2023, will make history – civil rights history, one that all of us can look back at with pride,” Sen. Robert Peters, the bill’s Senate sponsor, said in Senate debate. “I know I would say that this is my version of the Voting Rights Act. This is my version of Obamacare. This is what I did in Springfield and changed the fortunes for thousands of working-class Illinoisans.”

It passed the Senate 38-17 just before 2 p.m., then passed the House 71-40 just before 5:30 p.m. It will still require a signature from the governor to become law.

It was the product of months of negotiations following the original SAFE-T Act’s January 2021 passage. In the end, several state’s attorneys and law enforcement groups, as well as pretrial justice advocates who were on the other side of the issue, adopted a stance of neutrality.

The bill didn’t receive any Republican support, although several members of the minority party in the Senate acknowledged what they believed were considerable but insufficient improvements to the underlying law. They also chafed at being left out of the negotiations.

At any rate, the measure is slated to take effect as planned next year, barring a pending lawsuit from more than 50 state’s attorneys who are challenging it on state constitutional grounds.

The latest changes, contained in two amendments to House Bill 1095 that totaled more than 300 pages, at least partially aimed to address one of the constitutional complaints. It states that “pretrial release” has the meaning ascribed to bail in Section 9 of Article I of the Illinois Constitution where the sureties provided are nonmonetary in nature.”

But most of the language addressed several concerns cited by state’s attorneys and others, including worries that the original law’s vague wording could lead to mass release of individuals being held in lieu of bail when the calendar hits Jan. 1.

The new measure clarifies the changes that will apply to those charged with crimes after that date. Those who were held in lieu of bail before 2023 will be able to petition to have their case moved to the new system.

It adds clarifying language regarding part of the bill which some had read as preventing police from arresting a trespasser.

While it maintains language instructing officers to issue a citation in lieu of custodial arrest for cases below Class A misdemeanors, it also specifies that police maintain discretion to make an arrest if the person is a threat to the community or they continue to break the law.

Lawmakers also clarified language regarding the standard of proving a defendant is a danger to the public. The bill states a person to be held on the dangerousness standard must be proven to be a “real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case.”

It clarifies and defines that all people charged with “forcible felonies” and non-probationable offenses may be detained under the dangerousness standard. Individuals accused of domestic violence may also be held pretrial.

It adds hate crimes, felony animal torture, aggravated DUI causing bodily harm, DUI while operating a school bus and other DUI charges as detainable offenses if the defendant is deemed dangerous.

Republicans in committee and on the Senate floor, however, criticized the measure’s approach to the crime of burglary. The bill states residential burglary or burglary “where there is use of force against another person” are detainable under the dangerousness standard.

But if a burglary doesn’t meet those criteria, such as someone stealing change from an unlocked car, it’s not detainable based on an offender’s risk of danger to the community.

The offense would still be detainable under a “willful flight” standard, and anyone already out on pretrial release can be detained when charged with any crime. Per the law, “willful flight” means “intentional conduct with a purpose to thwart the judicial process to avoid prosecution.”

The amendment expands existing law to state “isolated” non-appearances are not evidence of willful flight, but “patterns of intentional conduct to evade prosecution …may be considered as factors in assessing future intent to evade prosecution.”

Rep. Patrick Windhorst, R-Metropolis, a former prosecutor, said the law is still too limiting for judges.

“We’ve created a detention net – that detention net still has holes,” he said during House debate. “And what that means is we’ll see those holes in the detention net and we’ll be back in a year to try to patch the hole, and then we’ll find another hole.”

The amendment also allows more hearings to be conducted remotely, a measure at least partially spurred by an anticipated increase in workload for the court system.

It also creates a grant program through the Administrative Office of the Illinois Courts to increase the number of public defenders, although it would be subject to appropriations by future General Assemblies.

Sen. Steve McClure, R-Springfield, criticized the sponsors for not considering such a program for prosecutors.

McClure also criticized a provision allowing a judge to classify time spent on GPS monitoring as “time served” as a jail sentence if the defendant is convicted.  

“Why should they get credit for a mandatory minimum sentence when they’re not even restricted in any way, either in their home or in jail or in prison?” McClure asked.

Sarah Staudt, a reform advocate for the Chicago Appleseed Center for Fair Courts, countered that it’s up to a judge if they want to grant time served, and the reasoning for the addition is because monitoring is still a restriction on liberty.

Republicans also criticized a provision that removes a requirement that news media have access to the conditions of a defendant’s pretrial release. Advocates argued that previous law only required bail amounts to be included within that information prior to the SAFE-T Act, so there was no need to add release conditions which could divulge victim information.