With so much having been written about the SAFE-T Act and criminations and recriminations of spreading misinformation being leveled by proponents and critics alike, I thought it best to attempt to set the record straight and reply some of the most common, misleading refrains.
REFRAIN #1: Poor people are being held in jail because they can’t pay bond and rich people are being let out.
Not in McHenry County. Under the current bail law, judges must presume a defendant should be released without paying any money and, if bail is set, must be “considerate of the financial ability of the accused” and set bail at an amount that is “not oppressive.”
In McHenry County, 97% of those charged with a crime are released pretrial. Most of these defendants are either indigent or men and women of modest means. The reason that the overwhelming majority of defendants are released pretrial is because judges release most defendants without having to post any cash or, if bail is set, determine the amount the defendant is able to pay and then set bail at that amount or lower.
It is true, especially when dealing with very serious crimes in which high bails are set, that some defendants can post significant sums to secure release while others cannot. The answer to this discrepancy, however, is not merely to release the dangerous defendant to achieve parity with the rich defendant. The answer is to make all pretrial detention decisions on the basis of risk.
REFRAIN #2: The SAEE-T Act allows judges discretion to make decisions on pretrial release based on risk and not money.
Mostly, no. The SAFE-T Act groups criminal offenses into two categories: “detainable” vs. “non-detainable.” Defendants charged with detainable offenses are eligible for detention and include: 1) violent, highest class felonies (e.g. murder, attempted murder, terrorism), 2) crimes against family members and stalking crimes; 3) sex crimes; and 4) certain gun offenses. Detainable offenses account for less than 10% of all felony offenses on the books in Illinois.
Non-detainable offenses are the remaining 90-plus% of criminal offenses in Illinois and include things such as second degree murder, DUI causing death, fentanyl delivery, manufacturing methamphetamine, drug-induced homicide, involuntary manslaughter, making a terrorist threat, kidnapping, arson, vehicular hijacking, aggravated battery to an elderly person, dismembering a human body, and on and on. Under the new law and even if a judge determines the defendant charged with a non-detainable is an imminent risk to the community, victims or anyone else, the defendant must be released. This is one of the most head-scratching and alarming aspects of the new law.
REFRAIN #3: All defendant’s currently held in jail will not be let out on Jan. 1, 2023.
It depends on whether the Act is interpreted “prospectively” or “retroactively.” If interpreted to apply “prospectively,” the Act would only apply to people charged with a crime after Jan. 1, 2023, and anyone currently in jail would not be released. If interpreted to apply retroactively, then all defendants held on a non-detainable offense will be released (approximately 30 of the 150 defendants currently in custody). Of the remaining defendants held on “detainable” offenses, the State of Illinois would have to file a petition and seek their continued detention, which may or may not be granted. Presuming optimistically the state succeeded on four out of every five petitions, that’s an additional 24 defendants being released, for a total of 54 defendants, or a roughly 35% reduction in total jail population.
REFRAIN #4: The bill will be amended prior to Jan. 1, 2023.
Very possible. What the changes will look like is anyone’s guess. One trailer bill to keep an eye on and that does a good job fixing many of the problematic aspects of the SAFE-T Act is Senate Bill 4228.
• Patrick Kenneally is McHenry County state’s attorney.