The "Pre-Trial Fairness Act”, which comprises a portion of legislation commonly referred to as the "SAFE-T Act”, was signed into law as Public Act 101-652 on January 22, 2021. The new law has been the subject of significant media coverage and public discussion as the January 1, 2023 effective date of the new pre-trial detention standards approaches.
While there are significant public safety concerns with the new pre-trial detention rules currently scheduled to replace the cash bail system, I remain optimistic that common sense and pragmatic leadership will result in necessary changes prior to January 1, 2023. Notwithstanding the potential for legislative action to fix the new law as drafted, a clear, impartial, and realistic assessment of the pre-trial detention system under the current version of P.A. 101-652 is an obligation owed to the People of Illinois.
There are undeniably valid public policy objectives related to the elimination of cash bail. For example, pre-trial detention should not be determined by financial resources. However, details of the pre-trial detention rules scheduled to replace the cash bail system in Illinois involve a matter of fundamental public interest and should be addressed in an objective and transparent manner by those entrusted with the authority to make and enforce our laws.
Under the pre-trial detention provisions of P.A. 101-652, any assessment of dangerousness/risk of harm to the community/public safety evaluation by a Judge is permitted only in cases involving the specific list of offenses explicitly enumerated in 725 ILCS 5/110-6.1 (a)(1-6). This means that a Judge will no longer possess the authority to detain someone based upon an evaluation of danger to the community unless they are charged with a non-probationable forcible felony or other offense specifically listed in Section 110-6.1(a) (i.e. domestic violence, certain firearms offenses, certain sex offenses, and human trafficking).
Some have claimed that, while the new law eliminates cash bail, Judges will retain the authority to conduct a dangerousness/risk of harm/public safety assessment in every case regardless of the offense charged. This is incorrect under the plain language of the statute as currently written. Various violent or otherwise dangerous offenses for which a Judge will not be permitted to consider potential danger to the community regardless of criminal history or circumstances of the charged offense include, among others:
Aggravated Battery (including great bodily harm or permanent disfigurement);
Aggravated DUI (including cases involving a fatality);
Aggravated Fleeing and Eluding a Peace Officer; Arson;
Burglary; Drug-Induced Homicide;
Intimidation (including pre-trial communication with witnesses or potential jurors);
Threatening a Public Official;
Possession of a Firearm by a Gang Member;
Possession of a Stolen Firearm;
Aggravated Assault (including use of a firearm);
and All offenses involving lethal drug distribution.1
While it is also incorrect to characterize individuals charged with the above offenses as categorically "non-detainable” under any circumstances after January 1st, a Judge will have no authority to detain an individual charged with these offenses based upon any assessment of dangerousness to the community. Those who suggest the new Illinois law mirrors the pre-trial detention standards of the federal courts, or similar legislation in states like New Jersey, are misinformed. The plain language of P.A. 101- 652 imposes new, explicit, and substantial restrictions on a Judge’s discretion to evaluate the totality of the circumstances in making pre-trial detention decisions that will impact public safety across the State. The new law removes the traditional role of Judges to engage in a comprehensive analysis of the facts to assess potential danger to the community where an individual is charged with a broad range of violent and otherwise dangerous offenses.
Such offenses would include distribution of deadly narcotics like fentanyl, a substance that can be lethal in very small amounts and is often unknowingly ingested by users who believe they are consuming a different substance. The DEA states that "Fentanyl remains the deadliest drug threat facing this country.” https://www.dea.gov/press-releases/2022/08/30/dea-warns-brightly-colored- fentanyl-used-target-young-americans. However, after January 1, 2023, Judges will not have the authority to consider potential danger to the community posed by the pre-trial release of someone charged with an offense related to distribution of fentanyl or other lethal narcotics which threaten the lives of Illinoisans every day.
The new law does not permit Judges to evaluate potential danger to the community unless the charged offense is among those specifically listed in Section 110-6.1or there is "clear and convincing evidence” that an individual presents a "high likelihood of willful flight” where the charged offense is a Class 3 or above. The consensus of prosecutors and Judges across the State is that detention under the "willful flight” standard will not be available in the vast majority of cases. While the "high likelihood of willful flight” analysis is available to a Judge for consideration of pre-trial detention of anyone charged with a Class 3 or above, the definition of "willful flight” precludes consideration of prior repeated failures to appear as the sole basis for pre-trial detention. Objectively, the definition eliminates any reasonable probability of detention in nearly any conceivable scenario short of "clear and convincing evidence” of pre-arrest flight and concealment to avoid apprehension for the charged offense or a direct statement from the defendant that they plan to flee the jurisdiction and hide from authorities if released. Judges will have no authority to consider pre-trial detention under either the dangerousness or "willful flight” standards for any Class 4 felony not otherwise specified in Section 110-6.1 regardless of criminal history or surrounding circumstances.
Despite the narrowly-defined standard of "willful flight” applicable to Class 3 or greater offenses, P.A. 101-652 eliminates judicial discretion to order pre-trial detention based upon a comprehensive assessment of potential danger to the community in cases of violent or other dangerous offenses not specifically listed in Section 110-6.1(a). However, sponsors of the legislation and other key stakeholders have publicly stated their willingness to make critical changes before January 1. While there are good-faith legal arguments raised in recently filed litigation related to whether the new law is constitutional, productive discussions toward fixing P.A. 101-652 are cause for measured optimism.
Below is a link to the Supreme Court Pretrial Implementation Task Force draft flowcharts: