It was no secret that the controversial Safe-T Act would be subject to judicial review, both on the face of it and as the state implements it. Mere weeks after its initial passage, the new law had already been brought to the Illinois Supreme Court for alleged constitutional violations. Now, in addition to these challenges, legislators have amended the law to “clarify misinformation” and avoid similar legal action moving forward.
Understanding the controversy
The Illinois state legislature passed the Safe-T Act in 2021. While most of the law has already taken effect, its most controversial component, which ends cash bail and defines what alleged crimes are “detainable offenses,” does not take effect until January 2023. These provisions are referred to as the Pretrial Fairness Act.
The Pretrial Fairness Act was included in the Safe-T Act as a way to reduce the disparities in the judicial system and the disproportionate impact cash bail requirements have on low-income populations and communities of color. Essentially, the new regulations give judges the discretion to release people awaiting trial without bail if they are unlikely to be a danger to the community. However, multiple different issues have arisen with the bill since. Namely, legal scholars are asking: is it legal to release someone without cash bail, given the Illinois constitution, and what does this law look like practically? Opponents of the law claim that these new provisions will lead to more dangerous communities. There is also concern that the entirely new procedural requirements will case a backlog in courts across the state.
The primary legal challenge before the Supreme Court is to determine whether cash bail is, in fact, a requirement of the Section 9 of the Illinois State Constitution, which states “All persons shall be bailable by sufficient sureties, except for [certain offenses].” The question may seem technical, but critics of the law state that, by eradicating the cash bail system, the state is denying the accused persons their right under the law, even if the reformed law is more permissive. Moreover, is the state allowed to redefine “sufficient sureties” to mean something other than cash?
The second challenge to the law is about what qualifies as a detainable offense, particularly for persons who may have been involved in violent crimes. This is what’s led to the nickname “The Purge Law.” The Pretrial Fairness Act says that courts must be able to identify a specific person or group of persons to whom the alleged person is a threat before the person can be detained. This is a higher requirement than in previous years because the court cannot simply say that the accused person is a threat to the greater community; they must make a more substantial claim about safety. Critics of the law claim that this may mean releasing dangerous individuals back into the community who may have otherwise been detained.
Does the amendment make substantive changes to the law?
The amendments to the Safe-T Act and to the Pretrial Fairness Act provisions span a more then 300-page document. The primary takeaway, however, is the institution of a hearing process for detention and release decisions. Now, the state or individuals may choose to file a hearing if a judge grants or denies a petition for release, with staggered timelines based on the severity of the crime in question. For instance, a person who is held because the court believes them to be a flight risk must receive a hearing within 60 days to evaluate their detention. The deadline is 90 days for those detained on the grounds of safety. To add to the confusion, detainees held under the old version of the bail law will have the option of being considered for release under the old version of the statute or under the new version that will soon take effect.
The Safe-T Act is still very much in question, and the next few weeks and months will determine its fate. As it goes through judicial review and legislative amendment, people should view any roll out and implementation of the act as temporary and subject to change. As a result, your rights may be in danger, simply because of the changing legal state or what will likely be inconsistency and confusion in its application when it takes effect in the new year. It is, as a result, incredibly important that you work with an experienced attorney who can navigate the chaos and ensure that your rights are being protected and honored. To learn more about Darryl Goldberg and his experience fighting for his client’s rights as a criminal defense lawyer, you can click here.