More than two-dozen inmates at the McHenry County jail filed petitions this week seeking to be released while they await their trials.
The flurry of petitions being filed was triggered by the new controversial cashless bail system that took effect Monday as part of sweeping criminal justice reforms adopted by state lawmakers as the so-called SAFE-T Act.
But McHenry County prosecutors say with more than 200 inmates in the county jail, they expect more petitions to follow.
As of Tuesday, 24 inmates represented by the public defender’s office had filed petitions seeking to be released, though they were detained before the reform took effect. They are charged with offenses not deemed by the new law as automatically detainable.
The cases range from Class A misdemeanor domestic violence and driving under the influence to Class X drug-induced homicides and the manufacturing and delivering of cocaine, according to court records.
Those filing petitions are scheduled to appear for hearings in the coming days and weeks where prosecutors could argue they remain detained.
If prosecutors object to an inmate’s release, they must file a detention petition presenting facts of the crime and the defendant. They also must prove to the judge that a defendant would pose a safety or flight risk if released.
McHenry County Assistant Public Defender Kim Messer said she filed petitions on behalf of two of her 20 clients in the jail.
“Each attorney is determining what they want to do for their client,” Messer said. “Every single one of our clients right now are eligible for release. The new law provides a mechanism for the attorneys to request their release.”
Inmates represented by the public defender’s office are only being held in the jail because they could not afford their cash bail, she said.
Should prosecutors not file a petition to continue to detain the inmate, he or she would be released, Messer said.
Brian Stevens, who represents clients as a private attorney and as a special public defender, said he has filed 10 petitions for release and has at least 10 more to go.
His clients’ charges include Class X attempted first-degree murder as well as serious gun and drug charges, he said.
Under the new law these charges are not considered automatically detainable, he said.
They are “subject” to being detained but prosecutors must prove that the defendants pose “a real threat to the safety of any person (or) community based on articulable facts,” Stevens explained.
Among those for whom Stevens filed a petition is Lewis McCracken, 28, who is charged with four counts of attempted first-degree murder, a Class X felony. He was ordered held without bond under the previous law.
Stevens also filed a petition for the release of Mitch Crawford, 37, of Chicago, charged with Class X drug-induced homicide who is being held on $500,000 bond. He currently would need to post $50,000 cash to be released pretrial.
Stevens is going through his list of clients and filing petitions for the more serious cases first. He said everyone has the right under the new law to seek pretrial release.
The cashless bond system puts the onus back on the state to prove that a person accused of a crime – who is considered innocent until proven guilty – should remain incarcerated until their case is adjudicated, Stevens said.
Stevens added that if a defendant poses a threat to one person or the community or is a flight risk, there are conditions the judge could impose, such as curfews, electronic monitoring and GPS.
He also said if his clients are allowed to be free while awaiting trial, they could work, receive mental health and substance abuse counseling and aid in the defense of their cases, which is difficult to do when in jail.
“The bottom line, the crux of the SAFE-T Act, is people are presumed innocent,” Stevens said. “Just because they can’t come up with a monetary amount of money, do they have to sit in jail for six months to a year? … Every defense attorney owes it to his incarcerated client to do this.”
Robert Deters, a private defense attorney who does not currently have clients in the McHenry County jail, said if he did, “of course” he would file for their release.
But what Deters is more concerned with are defendants who already posted cash and bonded out of jail on cases that, now under the new law, are considered detainable.
“The law allows for prosecutors to file a petition to request a detainer hearing for people already out on cash bond,” Deters said, “and if they are successful, our clients will be jailed pending trial.”
Assistant State’s Attorney William Bruce, chief of the criminal division, said it is hard to determine the exact number of petitions to be filed by defense attorneys.
But, with more than 200 inmates in the county jail, he expects many more.
“Everyone in custody has the right to petition for pretrial release,” Bruce said. “They have that right and we are preparing to have to handle as many as come through the system.”
Timeframes in which their cases must be heard before a judge depends upon the seriousness of the offense.
Arguments for a petition for release of a defendant facing a “most serious detainable” charge must be heard within 90 days of filing. A person considered to have a high likeliness “of willful flight” has to have a hearing within 60 days, he said.
For others being held on monetary bail who don’t fall under those two categories a hearing has to be held within seven days of their petition being filed. These could be such charges as a retail theft, Bruce said.
Should they win their petition, “the only thing we could ask for is conditions to be placed upon their release. We wouldn’t even be able to object,” Bruce said.
At Tuesday’s, now routine, weekday detention hearing, Bruce said eight individuals charged with non-detainable offenses were present and all were released.
One case, Bruce said, involved a person charged with driving under the influence for a third time, while another was charged with aggravated assault, accused of pointing a gun at a train conductor.