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With its ruling last week, the Illinois Supreme Court reaffirmed the SAFE-T Act as the law of the land. Proponents of the SAFE-T Act 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 a person’s income will no longer drive pretrial release outcomes. Opponents see the law as degrading and diluting good policing in the field and depriving law enforcement of the tools it needs to keep to our streets safe. Both are right. Three legislative actions could fix that.
The elimination of bail brings long overdue equity to the system and will help suspects charged with nonviolent offenses to avoid the often-devastating disruptions and hardships that come from not being able to make bail and secure release. However, the number of violent and habitual offenders released to the streets will significantly increase if cash bail is not replaced with a rigorous program for making pretrial release determinations that prevent the creation of a revolving-door system enabling the commission of even more serious crimes.
Full candor requires acknowledging that cash bail has long been used as a proxy by overwhelmed courts as a crude, inexact substitute for individual bond decisions. Now money is off the table: While the law does allow judges to make decisions on the basis of the charges and the suspect’s 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 that 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 high-volume court systems such as Cook County, where the scale is daunting. It will put a strain on resources and the ability to hear other kinds of cases. The proof necessary to be able to detain people is going to discourage judges from exercising their discretion.
If we want to make the SAFE-T Act a measure that ensures fairness while keeping communities safe, which certainly everyone across the city wants, city and state officials must do three things:
• Restore cash bail for some cases. Legislatively calibrate it to the offense so that it can be denied to serious and habitual criminal offenders. This should also include anyone who attacks a police officer and those who threaten or contact witnesses or victims.
• Create a “truth in sentencing” law that requires serious and repeat offenders to serve out their full sentences and brings the state system into alignment with the federal system. The system must hold accountable people who reoffend.
• Provide courts with the infrastructure and resources needed to make fully informed, fact-based bond determinations. That means a properly resourced pretrial office doing full background workups and making objective, reasoned recommendations to the judge. The latter is what the federal courts have. Federal courts do not have a bail system; defendants are routinely held pending trial and not sent home when their offense and their backgrounds reveal they are a threat to the community.
Chicago Tribune Opinion
Meanwhile, the city of Chicago can enact its own measures to hold criminals accountable and to keep dangerous and habitual offenders off the street. The city’s “home rule” powers mean the state code and the state’s attorney are not the only source of authority for public safety.
The city could enact a public nuisance ordinance that would empower police to make arrests, impound vehicles, confiscate personal property and impose heavy fines on individuals and organizations found guilty of violating the public way, damaging property, and harassing or threatening city residents. A city public safety ordinance could provide jail time and include fines and terms of probation for individuals who threaten police, intimidate witnesses, engage in hate crimes, commit weapons violations and perpetrate carjackings, among other offenses. Violations could be prosecuted by the city’s Law Department.
The city could create a case review unit to review prosecutors and judges’ controversial decisions on charges, pretrial release and sentencing in violent crimes and weapons and conspiracy cases. It would highlight cases in which criminals with serious past offenses were released on bail and put on home monitoring. Full transparency into the release of serious offenders has always been lacking. With an assured rise in pretrial releases, real transparency is needed more than ever. The justice system must be accountable for its failure to help keep us safe.
Effective criminal justice reform is a work in progress. Statutes must be amended and policies adopted with the goal of increasing public safety without sacrificing the basic tenets of reform such as stopping defendants charged with minor offenses from languishing in jail because they can’t afford bail. Our jails must not be debtors’ prisons, and wealth should not be a proxy for assessing risk to public safety or flight risk.
A balance can be struck between avoiding incarceration for minor first-time offenses while requiring detention for suspects charged with dangerous offenses and habitual offenders.
Paul Vallas is an adviser for the Illinois Policy Institute. He ran for Chicago mayor this year and in 2019 and was previously budget director for the city and CEO of Chicago Public Schools.
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