SPRINGFIELD, Ill. (NEXSTAR) — A Democratic State’s Attorney is the latest to attack the SAFE-T Act — Illinois’s massive criminal justice reform law that eliminates cash bail.
Kankakee County State’s Attorney Jim Rowe (D) argues that the law amends Illinois’s Constitution, which would only be legal through a ballot measure.
“The Safe-T Act has effectively violated this section of the Illinois Constitution without a referendum vote of the people,” Rowe said. “The legislature does not have that power.”
Defenders of the SAFE-T Act said they are not worried about Rowe’s lawsuit.
“For all of these folks who are all of a sudden strict constitutionalists when it comes to the Illinois Constitution, I’ll remind them the death penalty is also in the Illinois Constitution,” Representative Kam Buckner (D-Chicago) said.
The SAFE-T Act has been under fire long before Rowe’s suit, as critics attack the language of the bill, and misinformation about the bills intent spread across social media. The spotlight has been on the pre-trial fairness law, which eliminates cash bail in the state, and lays out guidelines for how judges will decide who will and will not be detained before their trial.
Republicans spoke out against the law on the law Friday.
“No cash bail is a very, very dangerous provision that is going to have a very difficult and a very sad effect upon victims and also police and also safe neighborhoods,” said House Republican Leader Jim Durkin (R-Western Springs).
Under the Pre-Trial Fairness Act, prosecutors must prove a defendant falls into one of three categories in order for a judge to deny them pre-trial release.
The first, is if a person is charged with a “forcible felony” that is not eligible for probation, and can prove that their release “poses a specific, real and present threat to any person or the community.”
The second criteria is proving a person is a “willful flight risk.” Republicans, as well as many prosecutors, argue the proof needed for this is too high, since a prior record of failing to appear for court on its own is not enough to prove the defendant is a flight risk.
The third criteria is if the defendant violated prior conditions of release. This focuses on detaining people who were initially released from pre-trial detention and went on to be arrested for a different crime.
The exclusion of felonies that are probation-eligible from the first category, combined with the high burden of proof needed to prove someone is a flight risk, lead Republicans to designate a list of crimes as “non-detainable offenses,” despite the law never using the term, and it allowing for any felony to be detained pre-trial under certain conditions.
“A court has no discretion to be able to hold them based on the law that was signed by JB Pritzker,” Durkin claimed Friday. “It was passed and rushed through by the Democrats in the House of Representatives.”
Buckner fired back, saying the SAFE-T Act keeps people accused of the most serious crimes in jail, whereas in the current system, they are able to be released so long as they can afford their bail.
“This law does not enumerate any non-detainable offenses,” Buckner said. “What he’s doing is finding the most egregious way to read this law in order to strum up fear.”
The law does allow for a judge to detain people accused of certain crimes, including sexual assault, domestic battery, and other crimes where a victim would be at risk if the accused was released pre-trial.
Also, most gun crimes qualify on their own as reason to detain a person pre-trial, but only if the prosecution can prove the person poses “a real and present threat to the physical safety of any specifically identifiable person or persons,” rather than to the general public.
Rep. Patrick Windhorst (R-Metropolis) said it’s important to give judges the discretion in the law instead of strict exceptions like in the current SAFE-T Act.
“What I think is we should have something that allows a judge discretion to view any offense based on the defendants dangerousness or likely to flee the jurisdiction,” Windhorst said. “Just leave it simple, not try to put separate buckets or categories, just leave it in the judges discretion.”
Buckner, as well as other top Democratic officials in the state, admitted there’s a high chance of the law being amended before it goes into effect at the start of 2023. Three trailer bills already passed to modify the law.
“I’ve been working with folks, since the initial bill passed almost two years ago, on making sure we get this thing right,” Buckner said.