With 2023 arriving in a little more than a week, law enforcement and court agencies are doing their best to prepare for upcoming changes to Illinois’ criminal justice system.
The Pretrial Fairness Act, commonly referred to as the “no-cash bail” portion of the landmark SAFE-T Act, is one of the provisions set to take effect at midnight on Jan. 1.
“Even though there have been a number of stakeholders that have been working on preparing for this, the implementation of this really falls on the backs of the state’s attorneys, and the process of detaining people is still up for discussion,” said Peoria County State’s Attorney Jodi Hoos.
“I’ve been working with my counterparts throughout the state – larger counties, similar-sized counties and smaller counties, both state’s attorneys and judges and clerks alike – to figure out how are we going to actually implement this process. Like I said, it’s still up for debate (and) we’re hoping to get some guidance still from the Administrative Office of Illinois Courts (AOIC). But I can say that it’s a much bigger burden for my charging division.”
Earlier this month, Gov. JB Pritzker signed a third trailer bill updating the SAFE-T Act originally passed in January 2021. But the law is still facing a legal hurdle, with challenges by 70 state’s attorneys consolidated into a single case against the state.
Tazewell County State’s Attorney Kevin Johnson, who is among the state’s attorneys alleging the law is unconstitutional, says his objection isn’t to a cashless bail system but rather how the justice reform legislation was crafted and enacted. He said adjusting to frequent updates to the law hasn’t been easy.
“The whole SAFE-T Act has been somewhat of a moving target,” said Johnson. “So it’s been challenging to try to advise and guide both law enforcement and prosecutors within our office as to what we should be doing or what we will be doing because it’s been changing. I think we finally have – at least for now, I should say – with this third trailer bill, somewhat of a map of how we are going to proceed.”
A Kankakee County judge is expected to issue a ruling next week, and it’s possible a temporary restraining order could block the Jan. 1 implementation.
Otherwise, the changes will have a significant impact on how the Peoria and Tazewell County sheriff’s offices operate their county jails. Peoria County Sheriff Chris Watkins said he’s been sending out daily informational emails to his staff as they prepare for the new law to take effect.
He says one of the biggest changes relates to how they handle warrants.
“Before Jan. 1, if you have a warrant issued, you most likely have a bond attached to it; I think we’re right now we’re sitting at around 6,000 active warrants in Peoria County and those all mostly have some type of bonds attached to them,” he explained. “So after (Jan. 1), if somebody gets arrested for a 2021 or a 2022 warrant that was issued in those years, they still can bond out on cash bail.
“So we’ll still have that system in place. But then after the 1st, if there’s a warrant issued there will be no bond attached to it. So, that’s a lot of moving parts for our staff to keep track of. We’ll actually have two processes that will be going on at the same time.”
Watkins anticipates the jail’s typical population will change noticeably.
“Right now, we have 300 detainees; that fluctuates day to day between 285 and 300,” he said. “From what I’ve looked at, it looks like possibly 20 to 30 people will be released sometime in January and February because of the no-cash bail because their offenses don’t qualify to be detained.”
Tazewell County Sheriff Jeff Lower said preparing for the SAFE-T Act changes has been a challenge because they haven’t received adequate guidance.
“We’re doing the best we can to try and interpret what the new laws are that are out there, because we’ve really not been given any instruction or any assistance as far as interpreting a lot of this,” said Lower. “We are working with our state’s attorney, working with our judges trying to come up with a plan of instruction for implementation. We need to basically formulate some instructions for the street cops, and the deputies that are going to be on the front lines come January 1. So it’s been a struggle, simply because things are still changing right now.”
Judge Kate Gorman is the Chief Judge of the 10th Judicial Circuit, which includes Peoria, Marshall, Putnam, Stark and Tazewell Counties.
Gorman says judges across all five counties have been collaborating together to make the SAFE-T Act and no-cash bail implementation as smooth as possible.
“Then at a local level, we have met with the stakeholders numerous times,” said Gorman. “The stakeholders would include the sheriff, the state’s attorney, the public defender, probation, the judges, the clerk’s office and the court reporters to be sure that it’s going to be a smooth transition once Jan. 1 rolls around.”
Gorman says it’s difficult to say exactly which issues were discussed most frequently, as the SAFE-T Act has been changing and fluid with the recent updates passed on the last day of the two-week fall veto session.
“Luckily, in our circuit, we already have weekend bonding,” said Gorman. “In all five of the counties, there’s a lot of cooperation with the stakeholders. So the changes are not really going to affect our day-to-day operations, other than it may take a little more time. But we have the structure in place to address the requirements of the SAFE-T Act.”
Gorman says, from a judge’s perspective, the SAFE-T Act doesn’t make major operational changes to the process. Judges already had to review and set bonds, it’s just the factors they consider that are changing.
“Instead of setting bonds,” she said. “You just have to determine whether or not someone will be detained.”
Pre-existing structures also mean that Gorman isn’t worried about confusion with any fringe cases on New Year’s Eve.
“We already had the structure in place,” she said. “New Year’s Eve, we’re still on the old system until 12:01, and then we’ll make the shift.”
Gorman does ask the public to keep in mind the amount of work at every level of the legal system to successfully implement the act.
“There has been an extraordinary amount of work that has been put into the implementation of this act, at the statewide level and at the local levels,” she said. “There is support both statewide and at the local level. And we’re going to get through this just like we’ve gotten through other changes.”
Hoos says the no-cash bail system sets up more requirements for her office that need to be addressed in a short time frame, such as various petitions and victim notifications. She says the new process actually may not result in a major shift in the number of alleged offenders who remain in custody before their court cases.
“The purpose of the Pretrial Fairness Act was to prevent individuals who are not a danger to the community from sitting in jail simply because they can’t afford bond. We’re already doing that here in Peoria, and have been for a number of years now,” said Hoos. “We don’t have people sitting out in jail simply because they can’t pay $100 or post their bond.
“The people that are in the county jail are there for a reason. We are only detaining, for the most part, violent offenders: gun offenders, or multiple repeat offenders. So I think the process is going to change greatly, but the actual people who are detained is not going to change all that much in Peoria County. It’s going to be the same people that were detained on Dec. 31 that will be detained on Jan. 1.”
But Johnson says the entire procedure leading up to trial is changing dramatically.
“If someone’s brought into custody now and are detainable for a detainable offense, we now have to file a petition with the court within a certain period of time to request that that person be detained until their case has come to a conclusion – either a plea, are found guilty or been acquitted,” said Johnson. “So, we have to file a petition to detain or to set what their pretrial conditions are going to be, and now we have to have a separate hearing on that and that has turned almost into a little mini-trial.”
Johnson says the prosecutors have the burden of proof in providing “clear and convincing” evidence that an individual should be detained. He also notes key changes for when someone doesn’t show up for their court dates.
“It used to be if a defendant failed to appear … we just put out a warrant, find them, bring them in, and then decide what to do at that point in time, whether they should be released back on bail or whether they should be further detained,” he said. “But now that has changed as well. If they don’t appear, there’s new procedures we have to go through: We have to file petitions to either revoke or modify their pretrial conditions. We can also decide whether or not we want to file a ‘rule to show cause,’ which is another type of hearing to determine whether they should be sanctioned now for not appearing. So the procedures are all different.”
Teri Ross is executive director of Illinois Legal Aid Online, the state’s largest online non-profit resource for legal resources.
“Since it’s never been tried before, in any other state, we’ll see how it goes here in Illinois,” she said. “It does give judicial discretion to keep the accused in detention pretrial. So there is a fair amount of discretion for judges.”
That discretion exists for charges like murder, forcible felonies, and offenses involving physical force or violence. Ross said some argue that judicial discretion is too narrow, while others say its overly broad.
“I think everyone is a little bit uncertain about what the law will bring. It’s been amended several times since it initially passed. And its constitutionality has been challenged in court,” she said. “And so I think there are some folks who are kind of, it’s a wait and see a bit. But I do think that folks at the county level in the courts and law enforcement are scrambling and not sure how quite how to implement this.”
Ross said a change to the law implemented during the November veto session of the General Assembly calls for a tiered system for hearings to review the charges against people held in pretrial detention as of Jan. 1.
“Folks who are already detained can request release. And the tiers start with the lowest level offenses, things like petty shoplifting,” she said. “And then those who are detained, but considered flight risks, would get hearings in about two or three months. Those considered to be potential threats to safety further out, right, three months or more.”
Advocates will closely monitor how the law’s implementation is rolling out.
Kareem Butler is the pretrial justice fellow at the Chicago Appleseed Center for Fair Courts. He’s in charge of training up a team of volunteer court watchers to deploy across the state for the Illinois Network for Pretrial Justice.
“Court watching is really a tool that is designed to help us hold court actors accountable. Court actors meaning judges, prosecutors, state's attorneys, even public defenders, and other individuals that whose jobs exist within the courtroom. And so that’s really what it’s for. It’s to help maintain transparency,” Butler said.
Over the summer, a coterie of 50 or so volunteers observed more than 1,000 hearings in courthouses across the state, including in Peoria County. The group Change Peoria is coordinating volunteer recruitment in the Peoria area.
The winter watching campaign will monitor the law’s implementation. Court watchers armed with a pen and paper sit in the gallery and record information on a form provided by the Illinois Network for Pretrial Justice.
“Our job is going to involve documenting what we’re seeing at the pretrial level, in terms of how these counties are really applying the new law. And if we notice that there’s an issue, like in X County, they’re not applying the law, the way they should be, part of our job here as advocates is to inform and the public is to inform stakeholders of that.”
The information will be used in data analysis for a report on the law. Butler expects some variation in pretrial hearings across the state.
“We want to understand what that variation looks like,” he said.
Court watching efforts might expand to additional counties in the spring, particularly in southern Illinois.
Hoos believes the latest SAFE-T Act trailer bill went a long way toward addressing problems with the earlier legislation.
“It’s certainly created a much bigger net to detain individuals and expanded the list of offenses that can be detained, which was really something that a lot of my colleagues and myself we were pushing for, because the original trailer bill left off a lot of individuals that could potentially be extremely violent offenses,” she said. “So I was certainly supportive of the expansion of the detention net. It also expanded some of the requirements for law enforcement and things that they can do on-site with your repeat offenders.
“Law enforcement has a lot more options than what they did previously. Judges have more options now that they are able to issue a warrant if somebody fails to appear to court; in the original trailer bill, that wasn’t an option and I know that was a big concern for a lot of us that deal with the court system day in and day out. Overall, it’s still not perfect; I still think that there are some tweaks and some additions as we go along that will probably come up.”
Watkins says his office has become accustomed to pivoting their preparations in response to changes to the SAFE-T Act. But exactly how everything will operate once the calendar turns remains a little unclear.
“This third trailer bill did clean up a lot of things for us; It lets our officers still do their jobs for the most part. But we just really, truly don’t know what this is going to look like,” said Watkins. “I read a study out in New Jersey when they went to no-cash bail, but they still have some type of their circumstances that are still cash bail. So it’s not exactly like what we’re going to see. But they saw their jail population go down by 20%, but the crime stayed the same out there.
“So I mean, truly I don’t think this is going to prevent crime. I think we’re still going to have that problem in our community. The population might go down a little bit in the jail, which is a good thing. But public safety is No. 1, so I’d rather have the population go up if it prevents crime.”
Lower says he’s confident his office will adjust to the new laws quickly and appropriately.
“I do have concerns but not to the point that the sky is falling. We will manage, we will adapt, and we will adjust, and in working with the state’s attorneys and the judges and our courts, we will figure it out,” said Lower. “I don’t have anything specific that will change exactly, simply because we really don’t know until we know.
“We’re going to have to live it and make adjustments on the fly. I know there’s been some serious concerns about people getting out that shouldn’t be. But at least in this county, I have a lot of faith in our courts and in our state’s attorney and the people that we work with, and we will do what’s right to protect the citizens of this county.”
Like Lower, Johnson is certain Tazewell County will be as ready as possible when New Year’s Day arrives.
“Regardless of how much we might disagree with the law, it is the law and we fully intend to enact and enforce that law,” said Johnson, “and here in Tazewell County, I’m very confident that come Jan. 1 we will be able to meet our obligations under the SAFE-T Act.”
