Illinois ends cash bail

Opponents argue it will lead to an increase in crime

click to enlarge Sangamon County Sheriff Jack Campbell describes the SAFE-T Act as “anti-police” and says it “empowers criminals.” - PHOTO BY JOSH CATALANO
Photo by Josh Catalano
Sangamon County Sheriff Jack Campbell describes the SAFE-T Act as “anti-police” and says it “empowers criminals.”

The elimination of cash bail in Illinois, now about 200 days away, continues to worry Sangamon County law enforcement officials.

They fear the landmark criminal justice legislation will result in more crime even as it addresses the injustice of poor people remaining in jail pretrial while people who can afford bail are released.

The bail reform, approved by the General Assembly in January 2021 and scheduled to take effect Jan. 1, 2023, means defendants will be either held in jail without bail or released without having to post bail.

"It's anti-police, and it's a knee-jerk reaction to a false narrative," Sangamon County Sheriff Jack Campbell said about the SAFE-T Act, which stands for Safety, Accountability, Fairness and Equity-Today.

"And I think absolutely, it's going to impact our safety," Campbell said. "I don't know on Day One it's going to impact our safety, but overall, if I had a position to take, it empowers criminals."

Statements of concern aren't limited to law enforcement. Crime has become an election issue, especially as violent crime rates in Illinois and the rest of the country have risen during the COVID-19 pandemic.

Political rhetoric is intensifying daily in advance of the Democratic and Republican primaries June 28 and the Nov. 8 general election, which will determine whether Gov. JB Pritzker and fellow Democrats hold onto their super-majorities in the Illinois House and Senate. Pritzker and other Democrats have faced criticism from Republicans for the SAFE-T Act, which was passed in January 2021 and spearheaded by the Illinois Legislative Black Caucus in the wake of the May 2020 death of George Floyd at the hands of Minneapolis police.

Reformers stand their ground

Supporters of the SAFE-T Act said the current bail system in Illinois – even after statewide changes enacted in 2017 reduce bail by $30 per day for certain charges – still unfairly penalizes Black, Hispanic and other defendants who tend to be low-income and less likely to afford bail.

"Cash bail doesn't make communities more safe," said state Sen. Elgie Sims Jr., D-Chicago, Senate sponsor of the SAFE-T Act. "I want us to be able to move to a true criminal justice system, not just a criminal legal system, and taking a holistic approach that allows for everyone to have the same access to justice regardless of where you live, what you look like or how much money you have in the bank."

He said the Sangamon County sheriff's comments left him "confused, and frankly, a bit disappointed, but not surprised."

Sims said the law wasn't a "knee-jerk" response, pointing to nine public hearings with 30 hours of testimony in the months leading up to the passage of the SAFE-T Act.

Some parts of the SAFE-T Act haven't been as controversial, such as new police training requirements and a new police officer decertification process.

New mandates for all police officers to be equipped with body cameras by 2025 have also received support, though funding has been an issue for some police departments, and police question whether officers who work behind a desk all day need body cameras.

Pretail Fairness Act draws criticism

More worrisome for law enforcement is the Pretrial Fairness Act – a part of the SAFE-T Act that includes provisions prohibiting police from arresting people for certain offenses in favor of writing a citation and setting a court date.

click to enlarge State Sen. Steve McClure, R-Springfield, is a former Sangamon County assistant state's attorney who voted against the SAFE-T Act and continues to call for its repeal. - PHOTO BY LEE MILNER
Photo by Lee Milner
State Sen. Steve McClure, R-Springfield, is a former Sangamon County assistant state's attorney who voted against the SAFE-T Act and continues to call for its repeal.

Many police organizations, which contended their concerns about the specifics of the SAFE-T Act weren't considered before final passage, also said eliminating the option of arrest or bail for certain offenses and circumstances will result in more crime because of the possibility that those who are released pretrial will offend again.

Democratic lawmakers say law enforcement had many chances to provide testimony, and those views were considered in the initial SAFE-T Act as well as in follow-up legislation changing and clarifying parts of the act – including new "use-of-force" restrictions – through trailer bills.

Springfield Police Chief Kenneth Scarlette said the act has "a lot of great components." He is concerned about "unintended consequences," however.

The law's changes may make criminals "emboldened" when they realize they may be less likely to be arrested or held in jail on certain charges, he said.

Scarlette worries the public may become frustrated about the restrictions on police and resort to vigilante justice.

"There's a huge unknown from my perspective as to how this radical change will play out," he said. "From a law enforcement perspective, our goal is to get that offender off the street and hold that person accountable for what they are alleged to have committed. Our goal is to preserve the immediate safety of the citizens of Springfield."

State Sen. Steve McClure, R-Springfield, a former Sangamon County assistant state's attorney who voted against the SAFE-T Act, said the amount of bail set for defendants under the current system is based on the severity of the alleged crime and a person's criminal history.

"The purpose of the system is to get people to stop committing crimes," he said. "The more lenient you are on people, the more they will commit crimes."

The Pretrial Fairness Act sets January 2023 as the start of a new system in Illinois – the most comprehensive change by any state in the nation – in which judges must decide within 24 or 48 hours after the first appearance in court, depending on the charge, whether a defendant is jailed without bail or released pending trial.

That swift timeline requires prosecutors to gather evidence for high-stakes hearings. Critics of the SAFE-T Act said prosecutors may not have the time or resources to ensure high-risk defendants aren't released.

Moreover, the law says people charged with certain offenses eligible for probation upon conviction won't be able to be detained pretrial unless prosecutors prove they are planning to evade prosecution.

Those offenses include robbery, burglary, kidnapping, aggravated battery, witness intimidation, financial exploitation of the elderly, aggravated DUI, aggravated fleeing and eluding, and certain cases in which a firearm is discharged in a public place.

The "almost impossible" task of proving intent to evade prosecution in those cases means the law hands defendants "basically a get-out-of-jail-free card," McClure said.

"These are serious offenses that indicate a danger to the community," he said.

However, David Olson, professor of criminal justice and criminology at Loyola University Chicago, said offenses not eligible for detainment under the SAFE-T Act become detainable in certain circumstances – if a gun is used, for example.

"The devil's in the details," he said.

Olson said it's unknown how often Illinois defendants charged with offenses such as robbery, burglary or kidnapping are released without bail under current law or have their bail set low enough that they can pay it and be released soon after arrest.

Asking for changes

Campbell and officials from the Illinois Sheriffs' Association and Illinois Association of Chiefs of Police said the new law makes it more difficult for police to remove people from private property for disorderly conduct or criminal trespassing.

Police can issue a citation and a notice to appear in court on those misdemeanor charges, but "custodial arrests" are prohibited unless the person poses an "obvious threat to the community or any person" or if their medical/mental health" poses a risk to their own safety.

Police need more leeway to remove a person or threaten to remove him or her, said Kenny Winslow, the former Springfield police chief who now serves as deputy director of the state police chiefs' group.

Campbell, who has endorsed fellow Republican and Aurora Mayor Richard Irvin for the GOP nomination to challenge Pritzker for reelection in November, said, "Law enforcement shouldn't be this complicated."

"Imagine somebody in your front yard, or your neighbor – and this happens to us a lot – that is constantly bothering you," Campbell said. "Maybe they have a mental issue or a substance abuse issue, and you've called law enforcement and warned the person, and you have to get to work the next morning and it's 2 a.m. If they're screaming and yelling and disorderly, we issue a citation to them and drive away. How does that help you?"

Jim Kaitschuk, executive director of the Illinois Sheriffs' Association, and Ed Wojcicki, executive director of the Illinois Association of Chiefs of Police, said they would like to see the General Assembly consider modifications to the law during its veto session in November and early December or during a brief "lame duck" session in early January.

The sheriffs' group continues to advocate for a full repeal of the SAFE-T Act and a redo of the legislation, while the chiefs' association pushes for tweaks.

Kaitschuk and Wojcicki both want to see the new changes in bail delayed because sections of the law are confusing and because it's uncertain the court system will be ready.

"You've got state's attorneys, judges, law enforcement that are all trying, still, to figure out exactly how this is going to come into play Jan. 1," Kaitschuk said.

Wojcicki said, "The system could put a lot of innocent citizens at risk."

Winslow added, "There is no perfect system, but we don't want to make it more lenient for these violent offenders to get out."

Sims, however, said the role "judicial discretion" will play in pretrial release shouldn't be minimized.

"The judge, as the person closest to the case, is evaluating the facts ... and reviewing the person's total record and is given the discretion to make a determination about whether a person should be held in custody and the conditions of their release, if they are released," he said.

New expenses for prosecutors

Sangamon County State's Attorney Dan Wright is requesting an increase of between 8.4% and 11.4% in his office's annual $4 million budget to beef up his staff to handle new requirements in the SAFE-T Act. He estimated the increase in legal, secretarial and other staff would cost between $338,000 and $456,000 annually.

"We have made the personnel requests of the County Board necessary to put my office in the best position to keep violent offenders off of our streets despite the significantly increased volume of work and expedited timelines imposed by the new law," Wright said.

"These changes, while well-intentioned, will strain the already limited resources of state's attorneys and public defenders across Illinois," he said.

"My concerns relate to the potential public safety impacts of unfunded mandates and unintended consequences," he said. "Nonetheless, the Sangamon County State's Attorney's Office will continue the fight against violent crime in our community regardless of any legislation that may emerge from the Statehouse."

It's unclear whether the General Assembly is interested in appropriating money to help counties cover the additional costs associated with high-stakes hearings one or two days after arrest.

No one so far has totaled the expected county-level costs associated with the SAFE-T Act across the state. Sims said lawmakers will analyze the expenses before deciding what the legislature's role should be in helping counties comply.

The Sangamon County Sheriff's Office, which has a $22 million annual budget, expects to lose about $100,000 annually from the $30 fees it charges inmates who post bail to cover fingerprinting, photographing and other expenses, Campbell said. But the sheriff said the loss of revenue isn't the reason he wants the SAFE-T Act repealed.

Other preparations underway

The Illinois Supreme Court is preparing to assist counties with the pretrial expenses of monitoring and arranging support services for defendants released while awaiting trial.

For years, counties with pretrial services have been able to receive reimbursement from the state for staff salaries, but not for the cost of benefits. Sangamon County is among counties that share about $17 million annually in those reimbursements, according to Cara LeFevour Smith, director of the Supreme Court's Office of Statewide Pretrial Services.

The high court and the Administrative Office of the Illinois Courts will spend about $26 million in additional state funding in fiscal 2023 to station state employees in 68 counties – including Christian, Menard and Logan – to provide pretrial services, she said.

Sangamon County already offers pretrial services, but many of the 68 counties don't offer the array of services in the larger counties to make sure defendants show up for court hearings, comply with pretrial release restrictions and receive services to deal with issues such as substance-use disorder.

Illinois' Pretrial Services Act in 1987 required each judicial circuit to establish a pretrial services agency, but a lack of funding prevented some circuits from complying with the mandate, Smith said.

The SAFE-T Act will bring "significant changes," including the potential for more people to be out of jail while their cases are pending, she said. The act will make "the existence of robust, comprehensive and supportive pretrial services throughout Illinois more important than ever," she said.

Smith said her office is working with "incredible gusto" to hire about 120 new employees for the system who will work in the counties and in technical support roles.

Judges, prosecutors and court personnel throughout the state have questions on how to carry out the Pretrial Fairness Act and deal with some ambiguous parts of the law, according to retired 23rd Circuit Judge Robbin Stuckert of Sycamore.

The Pretrial Practices Implementation Task Force has six subcommittees working to provide judges and county-level officials background and education, and come up with strategies for communicating with the public about all the changes, Stuckert said.

The task force also is working to start pilot sites, where some parts of the law can be tested before the January start date, in the counties of Franklin, Gallatin, Hancock, McDonough and Kane, she said.

An online town hall meeting on the changes has been scheduled June 23 at 4 p.m., Stuckert said. The Zoom link is available at bit.ly/3MAXqvS.

Stuckert said there "continues to be significant misinformation about some provisions of the SAFE-T Act, including that the act will prohibit police from arresting or jailing people charged with serious violent criminal offenses, which it does not."

Sims, the SAFE-T Act sponsor, attributed this misinformation to statements by Republican lawmakers and other opponents of the law.

"This is what happens when you politicize public safety," he said.

McClure, however, said anecdotal reports of violent crimes committed by defendants in Cook County who were released on reduced bail amounts after changes in the Chicago area in 2017 indicate the SAFE-T Act could trigger a crime wave statewide.

He pointed to the crime blog CWBChicago, which has chronicled the activities of repeat offenders out on bail. The site can be reached at bit.ly/CWBChicago1. The blog says it was created in 2013 by five residents of Chicago neighborhoods who had "grown disheartened with inaccurate information being provided at local Community Policing (CAPS) meetings." The site says it has "no corporate sponsors and no backing by foundations or political groups."

Sims said critics of the SAFE-T Act often fail to consider that the COVID-19 pandemic, economic unrest, "threats on our democracy" and a "racial reckoning" – all occurring simultaneously – have fueled a rise in crime in Illinois and nationwide.

Disagreement over the research

Sims said studies of bail reform efforts in Cook County and in other states, including New York and New Jersey, have failed to connect those efforts with an increase in violent crime.

Sims' statement was backed up by Matt Alsdorf, associate director of the Center for Effective Public Policy in Kensington, Maryland, and crime researchers at Loyola University Chicago.

"Illinois is being a leader in this field," Alsdorf said. "It is certainly ahead of the curve in this trend." He said bail systems generally don't provide "good outcomes" in protecting public safety.

Defendants' lives and livelihoods are destabilized by unnecessary pretrial jail time, and multiple studies indicate release on bail doesn't assure better rates of appearance in court or law-abiding conduct before trial, Alsdorf said.

The Center for Effective Public Policy, which is supported financially by Arnold Ventures, a nonprofit philanthropic organization, is assisting the Administrative Office of the Illinois Courts on an unpaid basis to implement the Pretrial Fairness Act.

McClure said he and other Republicans disagree with Sims and Alsdorf. Republicans have seen problems with bail-reform efforts in other states, he said.

He noted that a 2020 study by University of Utah professors concluded that changes in pretrial release procedures in Cook County led to a 45% increase in crimes committed by defendants released before trial.

"And, more concerning, the number of pretrial releasees who were charged with committing new violent crimes increased by about 33%," Utah law professor Paul Cassell and economics professor Richard Fowles wrote in their research paper.

The Cook County bail reform didn't eliminate cash bail but led to a slight increase in the likelihood of pretrial release for defendants and reductions in bail amounts for many offenses, according to Olson.

The Utah study contradicted a statistical review published in 2019 by Timothy Evans, chief judge of Cook County. McClure said Evans' review was biased and that Alsdorf is biased.

Evans said the Cook County bail reform has "allowed more defendants to remain in their communities prior to trial, where they can work, pursue their education and support their families. The vast majority of released defendants appear in court for all hearings. Bail reform has not led to an increase in violent crime in Chicago."

Cassell and Fowles said their conclusion differed from Evans' because they "properly analyzed" the Cook County data.

They added that the Cook County bail reforms "rely on a public safety assessment" developed with the assistance of Arnold Ventures. The Arnold Ventures risk assessment tool has been used in more than 25 other jurisdictions, including three statewide programs, in bail-reform efforts.

"If Cook County's bail reforms have produced additional crimes, then many other jurisdictions may have suffered similar harmful consequences," Cassell and Fowles wrote.

Researchers at Loyola University Chicago's Center for Criminal Justice Research, Policy and Practice reached a different conclusion. They performed an independent analysis of the Cook County data that was released in November 2020. The analysis reached essentially the same conclusions as Evans' review.

The study by Loyola's Don Stemen and Olson said they found the 2017 bail reform "increased the number of people released pretrial and was not associated with any significant change in new criminal activity, violent or otherwise, and was not associated with any change in the amount of crime in Chicago after 2017."

According to the study, 77% of Cook County defendants were released pretrial before the reform – by either being discharged from jail with no bail or with bail they paid immediately or in a few days, in most cases. After the reform, 81% of defendants were released pretrial.

Both before and after reform, the same share of defendants – 17% – had a new criminal case filed against them while on pretrial release.

The share of those defendants released pretrial who had a new violent criminal case filed against them was also the same before and after reform in Cook County – 3% – though the raw number was slightly higher after reform, according to Olson.

It's unclear whether the elimination of cash bail in Illinois will produce the same results, Olson said, noting that the SAFE-T Act makes broader changes in arrest and detainment policies.

It's possible that the SAFE-T Act will lead to more people charged with certain types of crimes being released sooner, while other defendants, such as those charged with domestic abuse, might be more likely to be detained pretrial without bail, he said.

Campbell called the bail reforms about to begin in Illinois "a big experiment. Where we go from here will probably be determined by the crime rates after this goes into effect."

Alsdorf said, "I would not describe this as an experiment. There is a lot in this law that is backed by the research."

Shelly Heideman, executive director of Faith Coalition for the Common Good, which involves Springfield-area faith congregations, nonprofits and labor unions in advocating for racial equity, said the coalition supports the SAFE-T Act and doesn't think it will lead to a spike in crime.

Heideman said she isn't surprised by the resistance from law enforcement. "They take the 'tough-on-crime' approach," she said. "From our perspective, it's a racial-justice issue and economic-justice issue."

McClure said the Faith Coalition "is not an unbiased group. It is a Democratic group that buses people in from Chicago for their partisan events in Springfield."

He said the Loyola study was biased, as well, and he called it a "hit piece for one side" that was "driven by ideology." Olson denied McClure's allegations.

Tweaks in SAFE-T Act possible

Sims said he and other members of the Black Caucus continue to talk with law enforcement officials about their concerns and consider potential changes to the law.

"We're willing to talk about anything," except for repeal of the law, he said.

Wojcicki, the police chiefs association executive director, said, "We're pleased that the door to communications is open."

Sims said the law "doesn't, in any way, handcuff officers. It frees them up to address true threats to public safety."

And as for the possibility of delaying the Jan. 1 start of bail reform – something that law enforcement groups would welcome – Sims said, "Right now, I don't see that happening."

He said Illinois is "being seen as a national leader because of how far we've gone, but also because of how comprehensively we've addressed our criminal justice system.

"Several of my colleagues from around the country, Democrat and Republican, have lauded our work and how bold we were in undertaking this task and the manner in which we got the work done."

Dean Olsen is a senior staff writer for Illinois Times. He can be reached at dolsen@illinoistimes.com, 217-679-7810 or twitter.com/DeanOlsenIT.