The SAFE-T Act goes further than any previous law in eliminating cash bail without any backstops, prosecutors told NR.
The SAFE-T Act goes further than any previous law in eliminating cash bail without any backstops, prosecutors told NR.
Illinois prosecutors on both sides of the aisle are sounding the alarm as the clock ticks down to January 1, 2023, the day the state’s criminal-justice system will be turned upside down by a new law that rewrites the rule book around how suspected criminals are treated as they await trial.
“The first thing about this bill I would say is it’s unprecedented,” Thomas Haine, the Republican state’s attorney (SA) of Madison County, Ill., told National Review.
“As far as I can tell, it is the first complete elimination of cash bail,” he continued. “From my mind, it’s the story of the century. You have a complete revolution in the cash-bail set-up in Illinois that was passed without any understanding of what it contained.”
The Safety, Accountability, Fairness, and Equity-Today Act, otherwise known as SAFE-T, has flown largely under the national radar since passing on January 13, 2021, in the aftermath of George Floyd’s murder and the resulting national protests that brought accusations of racism in the criminal-justice system to the fore. It was signed into law the following month and will come into force on the first day of the new year.
Driven by activist demands for ‘equity’ and ‘redistributive justice,’ billionaire Illinois governor J.B. Pritzker and his allies pushed through a bill that has left nearly every legal figure in the state scratching their head.
Three former high-ranking legal officials from Cook County, in the governor’s very own backyard, declared in the Chicago Sun Times in mid-October: “The SAFE-T Act Should Be Repealed or Amended.”
Standing at nearly 800 pages, the act was introduced at 4 a.m. and passed an hour later. “It took the Illinois Senate only one hour to radically alter Illinois’ justice system,” the trio write. Immediately afterwards, the bill was brought before the Illinois House “for the first time” and passed at 11 a.m.
What level of scrutiny and thoughtfulness went into a bill that eliminates cash bail entirely and severely limits judges’ ability to hold offenders without bail? Were its proponents worried enough about Chicago’s record-breaking crime streak to consult other opinions?
“No bona fide hearings or debates occurred. There was no opportunity for input from proponents or opponents. Ramrodding through any bill, let alone one that will profoundly affect the lives and safety of nearly 13 million Illinoisans, is irresponsible, improper and wrong,” the group of lawyers and judges wrote in the Sun article.
Illinois’s approach has been haphazard. Pritzker’s administration has ignored the near-unanimous, bipartisan, local opposition to the bill and overlooked the ballot box. “The state’s attorneys were busy trying to tell the [Pritzker’s administration] what it meant, but we weren’t part of the conversation. It was these activists – anti-cash bail activists – that I believe were writing it,” Haine said.
According to Haine, his input and that of his fellow SAs have been largely disregarded by “progressive activists [who] have prevented substantial changes to that bill. So now they’re stuck with the current language.”
In the intervening months, state’s attorneys, legal scholars, politicians, and journalists have had time to look at what’s buried under the hood of the SAFE-T Act. Some critics have focused on relatively minor facets of the bill that will snarl the justice system, such as the requirement that suspects be given three telephone calls at each location they’re brought to in the custody process, which will cause a “logistical nightmare” according to former NYPD inspector Paul Mauro.
However, according to prosecutors who spoke to National Review, the real threat is the total elimination of the cash-bail system. The move will reshape the criminal landscape of one of the largest states in the union and make Illinois the first state in American history to abolish cash bail without any backstops.
“They’re turning us into guinea pigs for the sake of innovation, without adequate vetting,” Haine said.
If this law is enacted, “well over 100 criminal defendants” will walk free in Madison County “without paying a dime as they await trial for alleged crimes, including aggravated DUI, aggravated battery, failure to register as a sex offender, burglary, and aggravated fleeing and eluding from a police officer,” Haine added.
For Haine, Pritzker’s motivations are inexplicable: “I can’t understand a justification besides hubris other than, ‘We can do it. We have a supermajority.’ The governor wants to be historic. It’s real political and legal malpractice in my view.”
Haine isn’t simply a lonely Republican screaming into the wind; he is but one of the now-100 state’s attorneys who publicly oppose the law. According to Capitol Fax, an insider Illinois political blog, only two of the state’s 102 state’s attorneys have publicly supported the SAFE-T Act, with nearly 60 dissenters going so far as to file lawsuits challenging the bill’s constitutionality.
One of the striking aspects of the opposition to SAFE-T has been its bipartisan nature at a time of heightened national polarization. “I wasn’t surprised at all,” Haine said of the opposition to progressive experimentation. In fact, there are so many dissenting state’s attorneys that the lawsuits were consolidated in Kankakee County last week.
“I wasn’t surprised because in Madison County, we have Democrats and we have Republicans. But these are common-sense folks. These are not academics, right? They are not activists. These are people that understand that crime needs to be punished; that criminals need to be taken off the streets and, in some cases, incarcerated,” Haine said. “That’s a bipartisan view in most areas of this state. So, I am not surprised at the bipartisan pushback because this is an extreme outliner in my opinion based in academic fever swamps and not in reality.”
Across the political aisle from Haine is Will County’s Democratic SA, James Glasgow, who is also suing the government over the SAFE-T Act.
“The bottom line is that they basically changed the constitution without a referendum, which is unconstitutional,” Glasgow said. Glasgow’s office provided a detailed breakdown of specific offenses under the SAFE-T Act for which it believes defendants “cannot be detained as a practical matter.” The list includes second-degree murder, aggravated battery, kidnapping, reckless homicide, and robbery.
Jim Rowe, the Democratic SA of Kankakee County, south of Chicago, was the first to file a lawsuit against Pritzker and Illinois attorney general Kwame Raoul, alleging that the law violates the state’s constitution. “The Safe-T Act has effectively violated . . . the Illinois Constitution without a referendum vote of the people,” Rowe told a local Fox affiliate. “The legislature does not have that power.”
The timing of the SAFE-T Act comes as Chicago grapples with its deadliest year since 1997. For 2021, Chicago topped nearly 800 homicides while recording over 3,500 shooting incidents. Those numbers alone make certain neighborhoods within the city resemble warzones, but the scale of the mayhem can only be appreciated in context: Chicago is a third the size of New York City, which had roughly 500 murders in 2021.
Cook County, which encompasses Chicago, is representative of the unsettling trend of rising crime taking hold across liberal jurisdictions from San Francisco to New York City. The legal team overseeing Cook County has been in total disarray at a time when good leadership is imperative. Over 235 people have already quit SA Kim Foxx’s office in the year since she took it over. (Foxx is one of the few supporters of SAFE-T.) Notably, four of Foxx’s assistant state’s attorneys (ASAs) left, three of them in one day.
One of them, James Murphy, accused Foxx of ignoring her pledge to deprioritize low-level crime in order to focus those “resources on fighting violent crime and drivers of violence.”
“This is simply not true,” Murphy wrote in an email to dozens of prosecutors announcing his bombshell resignation, under the subject line, “Good Bye.”
Murphy alleges that Foxx’s office has been more eager to hire “executive staff at the expense of hiring more [ASAs] who can work in the trenches.” When asked by National Review shortly after his resignation about whether he had changed his tune, Murphy was unequivocal: “I can no longer work for this administration. I have zero confidence in their leadership.” Foxx’s support for SAFE-T was one of Murphy’s many concerns about her leadership.
Chicago’s problems have made life tougher for SAs in neighboring counties, such as Glasgow, as Chicago’s criminality bleeds into their jurisdictions. “They [criminals] did make some forays down here [Will County] and they got arrested. They are currently sitting in the county jail on high bails. We will try them and convict them and they will not be back on the street. But when they’re arrested in Chicago they’re immediately put back on the street. They have 2,500 people on ankle bracelets and three quarters of them are violent. We’ve established a Maginot Line,” Glasgow said.
Glasgow’s neighbor, Republican SA Bob Berlin of DuPage, which shades Chicago’s western border, is one of the few dissenters taking a different approach to solving the crime crisis, seeking to reform the SAFE-T Act rather than dismantle it altogether.
“From our perspective, this is not political. This is about public safety,” Berlin told NR. Unlike the growing chorus of his fellow state’s attorneys, Berlin is coordinating with colleagues in Champaign and Kane Counties to work with the Illinois General Assembly to reform SAFE-T and avert the approaching legal showdown likely to unfold in December.
This two-track approach — simultaneously focused on blocking the law in court and reforming the law through legislative compromise — gives critics of the legislation the best chance at a real remedy, Berlin believes.
“There’s no guarantee that the Illinois Supreme Court will agree that the law [SAFE-T] violates the Illinois Constitution. I believe there’s a very strong argument in that regard, but it’s not a guarantee. I do think that it’s fixable through the legislative process,” Berlin said.
While Berlin has had productive and fruitful conversations with assembly members, the governor’s office appears to have little interest in backing down from its landmark legislative agenda. Although Governor Pritzker’s office did not respond to National Review’s request for comment, his press secretary, Jordan Abudayyeh, tweeted a response earlier this month to Glasgow’s appearance on a Chicago morning-radio talk show.
“Still waiting for someone to explain to me why people are fighting so hard to defend a system that lets ‘dangerous criminals’ they keep talking about out of prison just because they have money. How does that keep us safe?” Abudayyeh rhetorically asked. Rather than respond to Glasgow’s substantive points, Abudayyeh deflected: “If the State’s Attorney is concerned with public safety in his community, then he should focus more time on building cases to keep violent offenders in jail instead of spreading misinformation.”
This at a time when Glasgow is serving his seventh elected term as Will County’s SA. “Normally when I’m out shopping, somebody will feel compelled to shake my hand. But it’s been tenfold now. It’s been exuberance. Like, ‘Thank you for having some common sense and doing something about this,’” he said.
Will and DuPage counties have taken a stronger stance on crime while Chicago has failed to fix its own problems, and Berlin believes that approach is paying off. “All the time, people move to DuPage County. Really, it’s because of two reasons: We have great schools, and we have safe communities,” he said.
The cooperation of dozens of Illinois SAs from both parties challenging the government has rattled Pritzker’s cage. In late September, Pritzker personally responded to Haine, claiming he was “disappointed” that the prosecutor was “defending a criminal justice status quo where accused murdered, domestic batterers, rapists, and other dangerous criminals can buy their way out of jail pending trial if they have enough money.” Pritzker accused Haine and his allies of being motivated by a desire to bully low-level defendants rather than by genuine concerns about crime.
“You [Haine] also scoff at the notion that the cash bail system contributes to a criminal justice system that disproportionately punishes Black and Brown citizens,” Pritzker asserted. The public letter went on to say that Haine’s interpretation of the law’s impact “has been debunked by multiple non-partisan fact checkers,” including PolitiFact and the AP. In citing those outlets, Pritzker effectively subordinated the studied opinions of prosecutors from across the political spectrum to the analysis of journalists.
Although the cash-bail element of SAFE-T has consumed much of the local media coverage, it is far from the only problem prosecutors have with the new legislation. Under the new law, state’s attorneys will have to identify a specific individual an alleged perpetrator may harm in order to keep the suspect behind bars as they await trial. This approach might make sense in domestic-battery cases, where the perpetrator poses a narrow threat to a specific person. But it doesn’t work to combat the broader threat that a run-of-the-mill violent criminal poses to the community at large, Glasgow explained.
The SAFE-T Act also rewrites the definition of “flight risk” to exclude almost every suspect, including those who book a plane ticket without trying to conceal the fact that they’re leaving the jurisdiction. Those perpetrators would only meet the definition of a “willful” flight risk if they take steps to conceal their travel plans, according to Glasgow.
For all their criticism of SAFE-T, Haine, Glasgow, and Berlin all expressed a willingness to consider fair-minded bail reform. Many cited New Jersey’s Bail Reform Act, which passed via referendum in 2017 with the support of 60 percent of the public, as a model example of reform. The law made significant changes to bail policy, but did so only after consultation with local law enforcement and the public. The results have been encouraging: By November 2020, the number of people in jail awaiting trial had dropped 40 percent.
Illinois should follow the example of New Jersey, not New York, Berlin said.
“New York has seen a 36.6% increase in crime since their law went into effect. New Jersey, on the other hand, saw a very small increase. The big difference being New Jersey’s law gives judge’s discretion to detain people if they’re a threat to the community or a threat to intimidate witnesses or obstruct justice,” Berlin said. “New York’s law, which Illinois SAFE-T Act is like, limits the ability of judges to consider a person’s threat. Similar to New York, judges can only detain people for many offenses if they’re a willful risk of flight, which is extremely difficult to prove.”
One bright spot for those who want to preserve the SAFE-T Act is Democratic Illinois state senator Scott Bennett’s last-ditch bill, which would modify the worst parts of the misguided legislation and bring it more in line with the New Jersey model. Bennett is one of the few supporters of SAFE-T, and Berlin credited him with constructively working towards averting looming disaster.
Time is quickly running out for the Pritzker administration and the dissenting state’s attorneys: They must find a constructive solution before SAFE-T goes live in nearly two months. Haine, Glasgow, and Berlin all said they remained optimistic that public safety would win the day. However, there is still a lot of ground to cover in the coming weeks — and if it doesn’t break Haine’s way, his expectations of what life may look like next year in Illinois aren’t reassuring.
“It will be a blowback like you’ve never seen before by citizens of the state of Illinois who understand that this is all happening because of this law that is opposed by almost every single state’s attorney,” Haine said. “There will be a major blowback and people will suffer because more crimes will be committed by individuals who would or could have been detained. That’s a real tragedy.”