Vallas: SAFE-T Act starts Monday. 4 ways to make it safer
Proponents of the SAFE-T Act see it as an end to discrimination in a system that favors the wealthy. Opponents see it as depriving law enforcement of the tools they need to keep streets safe. Both are right. Four legislative actions could fix that.
The Illinois Supreme Court ruled 5-2 the Pretrial Fairness Act, one of many provisions included in the “SAFE-T Act,” will take effect Sept. 18, meaning Illinois will be the first state to eliminate cash bail.
The SAFE-T legislation itself has become a political lightning rod. Strip away the politics, and it’s important to consider the law for what it does and what its effects will be. Without two important tweaks, the SAFE-T Act could end up exacerbating out-of-control crime.
Bail should be based not on what you have, but on what you are suspected of having done and are known to have done in the past. The risk in the “no bail” provisions of the SAFE-T Act is in the extent to which it tries to correct for the first part of that equation at the expense of the second part. The state legislature needs to address that by enacting clear exceptions for dangerous offenses and habitual offenders when making bail and sentencing determinations. Meanwhile, Chicago must use its own home rule authority to augment public safety and criminal accountability.
The Illinois Supreme Court’s decision to uphold the SAFE-T Act’s elimination of cash bail has brought expectedly hyperbolic responses from the proponents and opponents. Proponents see it as an end to discrimination in a system that favors the wealthy who can afford bail and the creation of a system in which one’s income will no longer drive pre-trial release outcomes. Opponents see it as degrading and diluting good policing in the field and as depriving law enforcement of the tools they need to keep our streets safe. Both are right.
The elimination of bail brings long-overdue equity to the system and will help nonviolent offenders avoid the often devastating disruptions and hardships to themselves and their families that come from not being able to make bail and secure release. Yet the number of violent and habitual offenders released to the streets will significantly increase if the proxy of cash bail is not replaced with a rigorous program for making pre-trial release determinations. Such a program is needed to prevent it from becoming a revolving door system enabling the commission of even more serious crimes.
Supporters of bail elimination have argued the amended law allows a judge to detain a person who is considered a flight risk or who poses a threat to “any other person or the community,” which allows consideration of the nature and gravity of the charged offense. From that perspective, judges have had precisely the same discretion as has existed while mitigating “greater equity.”
Full candor requires acknowledging cash bail has long been used as a proxy by overwhelmed courts as a crude, inexact substitute for individually calibrated bond decisions. Now money is off the table. While the law does maintain judicial discretion to make decisions based on the charged offense and criminal history, the question is whether we will have created and funded the necessary infrastructure for the effective exercise of that discretion.
It does not appear the Cook County courts are equipped for the enormity of the task required in the exercise of discretion to require bail or deny release. Currently, it takes judges just minutes to hear information that is available about defendants, depending on the case. With the SAFE-T Act and its requirements, hearings will take much longer.
While this may not be a major problem in most of the state’s county court systems, it will be an immense problem in urban, high-volume court systems such as Cook County, where the scale is daunting. These changes will create a strain on resources and the ability to hear other cases. It is very likely the amount of proof necessary to be able to detain people is going to discourage the judges from exercising their discretion.
Cook County’s pre-trial release program, in effect since 2017, offers a glimpse of the future in a bail-free world that doesn’t make clear exceptions for violent offenses and habitual offenders. While supporters of pre-trial release cite a study by two Loyola Chicago professors that points out the small percentages of suspects released who go out and commit violent crimes, there’s no getting around the fact more releases mean more crimes committed by defendants on release and fewer defendants showing up for their day in court.
CWB Chicago’s tracking suggests 78 of those accused of murder or attempted murder in 2022 were out on felony bail for lesser felonies and were likely habitual offenders. It also shows the Chicago Police Department has brought charges in less than 5% of non-fatal shootings and 33% of murders since 2017, meaning the actual numbers are almost certainly even higher. Policymakers have to weigh whether these added crimes – which disproportionately victimize Black and Latino Chicagoans who make up more than 93% of homicide victims – are worth the claimed benefits of bail reform
SAFE-T fixes
If you want to make the SAFE-T Act a measure that ensures fairness while keeping communities safe, which certainly everyone across the city wants, then do four things.
1. Legislatively calibrate bail to the offense – which is the “what you are suspected of having done and what you’ve previously done” – so bail can be denied to serious and habitual criminal offenders. This should also include anyone who attacks a police officer or threatens or even contacts witnesses or victims.
2. Create a stronger “Truth in Sentencing” law. It should require serious and repeat offenders to serve out their full sentences. It should also bring the state system into alignment with the federal system. This would be a powerful deterrent to repeat felons.
3. Provide courts with the infrastructure and resources needed to make fully informed, fact-based bond determinations. That means a professional and properly resourced pre-trial office doing full background workups and making objective, reasoned recommendations to the judge. That means addressing state and local finances as well. Better-resourced federal courts were found to have routinely held defendants pending trial, and did not send them home when their offense and their backgrounds revealed they were not merely a risk of flight, but a threat to the community.
4. Chicago’s mayor and City Council should use the city’s home-rule powers to promote a safe environment. They can do so in ways the criminal court system can’t or won’t. The city can enact a public nuisance ordinance empowering police to make arrests, impound vehicles and impose heavy fines on individuals and organizations found guilty of violating the public way, damaging property, and harassing and threatening city residents. Ward 41 Ald. Anthony Napolitano introduced a similar ordinance that was never released from the City Council Rules Committee for consideration.
The city can also enact its own public safety ordinance to ensure accountability for more serious offenses. Such an ordinance can provide for as long as 364 days of jail time and include fines and terms of probation for individuals who threaten police, intimidate witnesses, engage in hate crimes, commit weapons violations, commit repeated domestic violence offenses, possess a stolen vehicle, etc. Violations can be prosecuted by the city’s Law Department if the mayor and corporation counsel make it a priority.
The city can and should also create a case review unit to review prosecutors’ and judges’ controversial decisions on charging, pre-trial release and sentencing in violent crimes, weapons and conspiracy cases. It could highlight cases in which criminals with serious past offenses were released on bail and put on home monitors. Full transparency into the release of serious offenders has always been lacking. With pre-trial releases flooding communities with many dangerous repeat offenders, real transparency is needed more than ever. The justice system must be accountable for its failure to help keep us safe.
Someone’s experience with the criminal justice system should not vary based on their income level. The SAFE-T Act corrects that. Making the nature and the repetitiveness of the offense the criteria for determining, including denying, bail would address the stated objective of the SAFE-T Act’s proponents: that they want to make bail about not what you have, but about what you did. It would also bring accountability to prosecutors who are incapable of or unwilling to distinguish between those accused of violent versus nonviolent offenses, and first-time versus repeat offenders.