SAFE-T Act: Where Are We Now?
Unintended Consequences of the “Safe-T Act”?
Cook County, Illinois - On September 18, 2023, after a battle in the Illinois Supreme court, the Pretrial Fairness Act, otherwise known as the “Safe-T Act,” went into effect in Illinois. The applicable statutes begin at 725 ILCS 5/110-5. Originally introduced as SB 4052 in 2021 by Illinois State Senator Robert Peters, the Safe-T Act eliminated cash and financial bail as a condition of release from custody between arrest and trial in criminal cases. All references to “bail,” “bail-bond” or “conditions of bail” were replaced with “pretrial release”. No longer could a defendant’s family raise money to post bail for an otherwise detained Defendant in the Cook County Jail.
In what was once called Central Bond Court and is now called First Appearance Court, Judges who first see defendants after their arrest can no longer weigh the various factors involved in determining an arrestee’s danger to society, risk of fight to avoid prosecution, or history of failing to appear in court in setting an appropriate bond amount. The pretrial services department still prepares a public safety assessment indicating the level of violence of the current charge and the defendant’s history of violence and failing to appear in court, but the options are limited. Judges’ options are usually simply to detain or release on recognizance, curfew, or electronic monitoring. Under the new Act, when someone is charged with a detention-eligible offense, the State automatically files a petition to detain. Prior to the passage of the Pretrial Fairness Act, petitions to detain without bond were not often filed by the State, and there was no mandate for them to do so. Judges could set bond at $5,000,000.00 to ensure a defendant did not get released, but official petitions from the State were rare. A $5 million bond is arguably a no-bond hold, but that problematic circumventing of the bond rules is no longer an issue.
The previous bail statute at 725 ILCS 110-5(b)(1)-(3) provided that the amount of bail set must be:
(1) Sufficient to assure compliance with the conditions set forth in the bail bond
(2) Not oppressive; and
(3) Considerate of the financial ability of the accused.
The Cook County courts had already ensured that almost all defendants being held on relatively small financial bonds who only remained in custody because they could not afford $100 or $1000 to post bond were released onto electronic home monitoring (EHM/EM) or that the financial conditions of the bond were removed. Defense attorneys throughout the county had filed motions to reduce bail amounts to $0, and judges went along with it. There was a recognition that requiring people who had little to no money to post cash bail was inherently unfair and discriminatory against defendants living in poverty. Bail amounts were, for the most part, considerate of the financial ability of the accused.
ILLINOIS IS THE ONLY STATE THAT HAS ELIMINATED CASH BAIL
Not every bail amount was set so the defendant could afford it, and bail amounts varied based upon the judge setting bail, the nature of the crime charged, and the defendant’s criminal history. Murder defendants would at times be held on extremely high bonds with the full knowledge they could not post that amount. Many defendants who would have previously remained in jail until their trials will still be detained under the new Act, but inconsistencies abound.
Detaining a person who is presumed innocent of a crime after their arrest and before they are convicted is a serious and delicate responsibility placed on the state. With the swipe of a pen, someone who was previously free becomes a guest of the Cook County Jail. For as long as their case takes to wind its way through the criminal justice system, they will be housed with other detainees in cells that are barely large enough for two beds and a toilet. Their every movement will be restricted and scheduled, including meals and showers. For some inmates, the only time they see actual daylight is from the windows of the sprawling upper floor courtrooms of the Leighton Criminal Courts Building at 2600 S. California. Contact visits with family members do not exist, and visitation takes place either through a Zoom screen or through thick plexiglass with holes cut out to allow a small amount of sound to travel.
Prisoners in the Cook County Jail see their existences ceasing to occur outside the walls. Friends they used to see and places they used to visit are no longer around. Their relationships are strained because of the absence of communication. They are allowed to write letters using pencils and pads of paper as long as they can afford to buy stamps from the commissary. Any reminders of home are limited to a few photos and letters, and danger is constant. Inmates must always be alert for attacks from other inmates and, at times, the guards themselves. Just as they did on the outside, gangs permeate the Cook County Jail. Gang violence follows. The psychological consequences to inmates are devastating, and CCDOC is often described as one of the worst places on earth.
Detainees are not necessarily looked at as individual people to a prosecutor typing up a petition to detain. The language is softer, but the culture is the same. They can no longer use the words “prisoner” or “inmate,” but must refer to “individuals in custody” (IICs). Sensitivity training and memos on only referring to IICs are wasted efforts, and even the most fair-minded correctional officers fall into the world of the Cook County Jail.
Prison reform is not going to be accomplished on the level of the Safe-T Act, and the band-aids put in place by legislation do nothing to lessen this country’s ridiculous over-incarceration of its own citizens. The United States has the sixth highest rate of incarceration of its own population in the world. https://www.prisonstudies.org/highest-to-lowest/prison-population-total. The Safe-T Act claims to be for the betterment of poor people, but all it does is shift the public view of where these marginalized people are held in the system - a system that is designed to break them down and get them to plead out from the moment they enter.
ELECTRONIC HOME MONITORING “EM”
We've witnessed a significant rise in defendants awaiting trial being placed on Electronic Home Monitoring (EHM/EM), or house arrest. Initially, those on EM had restricted movement, only allowed for authorized appointments with doctors or attorneys. If they had stable employment at a fixed location and their employer provided a letter of authorization, they could work a 40-hour week. However, by the mid-2010s, EM participants were granted two days of free movement each week. Despite the increasing number of defendants monitored by the Cook County Sheriff and Pretrial Services Department, staffing levels for EM didn't keep pace. Even before the Pretrial Fairness Act, the understaffed and underenforced EM system struggled to manage detainee-to-staff ratios. News outlets frequently reported criminal activities by individuals under house arrest, despite GPS tracking on their ankle bracelets. While these stories grabbed headlines, they aren't indicative of broader statistics, yet they spurred public pressure.
The system didn't self-correct as the Act's authors hoped. Driven by various interest groups and legislators, some of whom were unfamiliar with Cook County criminal courts, this policy was enacted into law. Legislators aimed to address perceived discrimination against low-income individuals by passing a cashless bail law, irrespective of its potential impact on protected groups.
In its infinite wisdom, the legislature replaced a two-tiered justice system based on financial ability to post bond with a two-tiered justice system based on financial ability to afford an attorney. The new iteration of the pretrial detention statute was born and codified under 725 ILCS 5/110-5 and dubbed the Pretrial Fairness Act. Illinois quickly became the first state in the country to abolish cash bail. No other jurisdiction as large as Illinois had done so, and we became the guinea pigs for a new and untested approach to pretrial release. The Cook County Jail is the largest single-site jail in the United States, admitting 100,000 detainees annually and holding a population of anywhere from 4,000-9,000 detainees on a daily basis, according to the Cook County Department of Corrections Website (2/8/2024).
DETENTION-ELIGIBLE OFFENSES
725 ILCS 5/110-6.1 lists “eligible offenses” for pretrial detention, and the State now must file a verified petition for pretrial detention whenever someone is arrested for one of these offenses. The State must show by “clear and convincing evidence” that (1) The proof is evident or the presumption great that the defendant has committed an eligible offense listed in the statute, AND (2) That the defendant poses 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, poses a serious risk to not appear in court, or has a high likelihood of willful flight to avoid prosecution AND (3) No conditions or combination of conditions set forth in 725 ILCS 5/110-10(b) can mitigate that risk.
“Eligible offenses” for pretrial detention under 725 ILCS 5/110-6.1, as predicted, include forcible felonies - murder and other homicide and manslaughter charges, discharge of a firearm, criminal sexual assault, robbery, residential burglary, home invasion, arson, kidnaping, and aggravated battery, stalking, violating an order of protection, certain domestic battery offenses, aggravated battery with a deadly weapon, aggravated DUI causing great bodily harm or leading to death, and attempts to commit the listed offenses, among others. A defendant with a high likelihood of willful flight to avoid prosecution charged with any offense more serious than a class 4 felony is also detention eligible.
NON DETENTION-ELIGIBLE OFFENSES
RELEASE…RELEASE…RELEASE (Onto EM)
What happens to defendants charged with offenses that are not detainable? That ranges from judge to judge and, because no other state has eliminated cash bail, is arbitrary. Many circuit court cases where defendants were ordered detained or on EM have been appealed to the appellate courts. Reversals have been inconsistent, and it is unclear if the discretion of the appellate court is meant to substitute for the discretion of the trial court judge. The general rule is that non-detainable offenses have a presumption of release, and the defendants are either released with no pretrial conditions or onto electronic monitoring (EHM). There are multiple lengthy charts explaining the procedures for violations of pretrial conditions, most recommending more strict conditions and re-release. A 48-hour window was established requiring defendants on house arrest/EHM to be in violation for 48 hours before the Sheriff or pretrial officers would investigate the violation.
TWO-TIERED JUSTICE: Where Money Still Matters
Concerns persist regarding the two-tiered justice system that favors the wealthy over the less fortunate. Initially, the drafters of the Act aimed to ensure that money did not unduly influence a defendant’s pretrial release. However, in their haste to achieve fairness, an unintended consequence emerged. The disparity between those with financial means and those without has become more pronounced, particularly in their ability to afford private legal representation.
Cook County is home to some of the most talented assistant public defenders nationwide, dedicated to securing favorable outcomes for their clients. Yet, as their caseloads grow, the time they can devote to each case diminishes. In contrast, defendants with financial resources can hire private attorneys, who have the flexibility to select their caseload and allocate ample resources to each case.
Before the Safe-T Act, many defendants accessed experienced private defense attorneys by posting bail for their release. Upon release, they used bond funds to cover legal fees. This practice allowed individuals to reduce their out-of-pocket legal expenses and access competent representation. The bond was refunded to the attorney at the case's conclusion, sparing families from the financial burden of both bail and attorney fees.
Stronger incentives naturally take priority over weaker ones.
“INCENTIVES ARE THE CORNERSTONE OF MODERN LIFE”
Levitt, S.D., & Dubner, S.J. (2006). Freakonomics. Harper Trophy.
There is less incentive for families of defendants to gather up money to post bond and get their loved one out of custody than there is to pay a defense attorney’s fees upfront. The wealthier defendants end up with private attorneys while the poorer defendants end up represented by the overwhelmed Public Defender’s Office. There are a significant number of defendants who would have been able to afford private attorney representation under the old cash bail scheme for whom it now is financially unaffordable. The trade-off that the interest groups and legislature seem to be willing to make is to have more defendants released on pretrial house arrest/EHM instead of remaining in custody, in exchange for removing the ability of low-income defendants to possibly hire top-notch private attorneys. The inequality between the “haves” and the “have-nots” has become far more apparent in the quality of their representation than before the cashless bail system was enacted.
Private attorney services are not free, but with a few thousand dollars secured in bond for payment upon the resolution of a case, more people were able to afford private attorneys. The public defenders have historically had far more cases than was reasonable for them to defend, and bond refunds lessened the load on the public defenders. The Safe-T act has done away with this benefit and has reduced the number of defendants who could afford private representation.
Posting bond and release are immediate needs. Defendants’ families, friends, and outside organizations would raise whatever money was necessary to get them released from jail. Anything that could be sold or mortgaged to secure pretrial release was used to bond out detainees from CCDOC. Defendants would be able to work and spend time with loved ones while their case worked its way through the system to trial or plea. Even defendants who were required to be on EM after posting cash bail were allowed to be at home, sleep in their own beds, and be safe from the dangers of living in a jail cell.
Whether you think lawyers are overpaid (we are not, especially in criminal defense), or you are staunch defender of the Safe-T Act, no rational argument can be made that giving criminal defendants access to fewer competent attorneys helps more people get fair treatment in the justice system. It is incompatible with the goal of providing access to justice to more low-income, marginalized groups. The Pretrial Fairness Act is political grandstanding and virtue signaling of the highest order, and ultimately is a distinction without a difference.
Read an April 14, 2024 Article “Lawmakers Want Changes To Safe-T Act” at https://www.advantagenews.com/news/local/lawmakers-want-changes-to-safe-t-act/article_f0358d1c-f8e2-11ee-a9b5-53bbcfc92190.html
6 month report on the Act Https://civicfed.org/sites/default/files/2024-03/PFAImplementationCookCounty.pdf
Attorney Jonathan S. Goldman has been a practicing criminal defense trial lawyer in Cook County, Illinois for over 15 years. The viewpoints and opinions expressed here are those of Jonathan Goldman only and do not represent the views of Goldman Law Chicago, LLC, nor any partners, subsidiaries, or other entities. Attorney Goldman’s views do not represent those of the Cook County criminal defense bar. We welcome guest submissions to our “What The Law?” blog. We do not accept paid sponsorships for any of our posts or materials.
We take accuracy seriously. If you have any corrections to information contained in this blog, please email us at info@goldmanlaws.com or use our contact form.
