Illinois’ year-old criminal justice reform act continues to evolve

One of the more controversial provisions of the bill abolishes cash bail in Illinois and replaces it with a system that will prioritize the severity of an offense, the risk of not appearing for court and the threat and danger the individual poses to another person or the community if they were to be released.

The provision does not go into effect until Jan. 1, 2023, but opponents claim it will allow “dangerous and violent criminals” back on the street, tying the hands of prosecutors who seek to keep the accused individuals incarcerated before a conviction.

State Rep. Justin Slaughter, D-Chicago, carried the SAFE-T Act in 2021. In April, he accused Republicans of a “bad stench of racism” in their opposition to the reform. He said the current system of cash bail has an “adverse impact on those that don’t have the money,” and eliminating cash bail will make it more difficult for violent offenders to be released compared to lower level, nonviolent offenders.

“If this is a violent, dangerous offense, we certainly want to hold offenders accountable but at the same time, we want to have an understanding of the root causes of crime and violence,” Slaughter said.

But Republicans, and some state’s attorneys, have argued the opposite may be true.

James Glasgow, a Democratic Will County state’s attorney, said the SAFE-T Act requires a higher burden of proof to detain accused violent criminals until trial. The act states all defendants “shall be presumed eligible” for pretrial release unless prosecutors present “clear and convincing” evidence to deny the suspect pretrial release. That includes proof a suspect committed the crime and poses a threat to the physical safety of a “specific, identifiable” person.

Prosecutors must submit a request for detention if the offender poses a threat to public safety of an individual or community. The state also must provide each suspect a hearing within 48 hours to determine if the suspect should be released.

Glasgow said that time limit makes it nearly impossible to provide evidence needed to review body and surveillance cameras and have crime labs process evidence.  

“I’m not against no bail for nonviolent crimes,” Glasgow said. “But when it’s protecting the health, safety and welfare of the law-abiding citizens, we have to be able to do that.” 

State Sen. John Curran, R-Downers Grove, a former prosecutor, said that instead of eliminating cash bail altogether in Illinois he would prefer New Jersey’s model permitting cash bail in narrow circumstances.

Curran said such a system would ensure individuals who are threats to the safety of communities are being held.

The SAFE-T Act also establishes the right for an individual in police custody, or who is moved from one place of detention to another, to make three phone calls within three hours after arriving at the new place of custody.

During floor debate on one of the follow-up SAFET-T measures, Minority Leader Jim Durkin, a former prosecutor from Western Springs, raised concerns that the three phone calls would allow an offender to call a victim and “scare the hell out of them” to prevent the victim from pressing charges. Without restrictions, it could lead to witness tampering and intimidation, particularly in domestic violence situations, he said.

The bill states only calls made to a public defender or other attorney can’t be “monitored, eavesdropped upon, or recorded.”

Slaughter said elected officials can’t dictate who an individual can call but they can ensure detainees have access to communication when in custody.

“People need to know what’s happening and that you are moving from one place to another and that you get access to communication,” he said.

A record of phone calls made when an individual is in custody must be maintained. If no calls are made, the detainee must give a written statement as to why they made none.

The three-hour requirement for the calls does not apply when an individual is asleep, unconscious or not complying with officers; police must document the noncompliance.

The SAFE-T Act overhauls the police certification and decertification process, providing more power to the Illinois Law Enforcement Training and Standards Board (ILETSB) which oversees training and grant programs for law enforcement and correctional officers throughout the state.

Follow-up legislation pushed back the effective dates for the police certification and decertification system from Jan 1, 2022, to July 1, 2022.

The SAFE-T Act creates a certification system placing law enforcement officers into three categories: active, inactive and decertified. Those with active certification can be legally employed at any Illinois agency in a law enforcement capacity.

The provision provides ILETSB more discretionary authority to decertify officers for unethical or unprofessional conduct that would not rise to the level of felony. Law enforcement agencies will be required to hire only certified officers.

Slaughter said that, before the SAFE-T Act, decertification in Illinois severely lagged compared to other states and the state is “trying to play catch up.”

Prior to the SAFE-T Act, an officer’s certificate could be revoked upon a conviction of a felony, or under certain misdemeanors from a limited list of “decertified misdemeanors,” including theft, bribery, harassment of witnesses or jurors, or using deceptive practices.

The SAFE-T Act also allows for anonymous complaints against police officers and removes a requirement that officers under investigation must be informed of the complainants’ names or officer in charge of the investigation.

State Rep. Patrick Windhorst, R-Metropolis, a former prosecutor, said a potential negative consequence of the new certification portion is individuals using the anonymous complaint process to try to impact their criminal case. Opponents of the legislation have also claimed it’s causing low morale among law enforcement personnel.

The law requires officers to complete 30 hours of training every three years consisting of hands-on scenario-based training, use-of-force techniques and de-escalation, officer safety and high-risk traffic stops. It also requires training in crisis intervention, racial and ethnic sensitivity and officer wellness and mental health. The Fiscal Year 2023 budget includes $10 million for a local law enforcement retention grant program.

The SAFE-T Act also changed the use-of-force standards, only allowing deadly force when necessary for officers to defend themselves from bodily harm. If a suspect is trying to escape, officers are only authorized to use deadly force if the person is likely to harm others and cannot be caught at a later time.

It also banned the use of chokeholds and other actions that restrict breathing from being applied above the chest unless an officer is in a situation that authorizes deadly force. Wojcicki noted two follow-up bills addressed concerns surrounding the use of stun guns, chokeholds, pepper spray and tear gas.

The original bill prevented stun guns from being aimed at someone’s back, but Wojcicki said the back is the recommended target and hitting them in front could inadvertently hit the heart. He said the first follow-up measure, House Bill 3443, changed it so that it is okay to target the back with a stun gun.

Wojcicki said they are still pushing to clarify the language surrounding the definition of a stun gun because they want officers to use lethal weapons less often, yet the law defines a stun gun as a “firearm.”

Slaughter filed House Bill 3904 that would remove stun guns from the definition of “firearms.” The measure passed the House 106-1 in March but did not pass the Senate. Wojcicki said they hope to see the measure passed during the fall veto session.

The law also creates a duty to intervene when another officer is using excessive force and a duty to provide medical assistance to those who are injured.

Wojcicki noted they also hope to see a provision regarding trespassing changed. The SAFE-T Act says that if a person is committing a Class B or C misdemeanor, officers can only issue a citation, rather than detain an individual. That means, he said, if someone were to trespass on a homeowner’s front porch and the homeowner wanted them removed, an officer wouldn’t be able to arrest them or force them to leave.  

“Most people, I think, would say there’s something wrong with that,” Wojcicki said. “That’s why we keep saying we want some commonsense changes.”

The legislation makes body cameras mandatory for law enforcement agencies across the state. The largest departments must have body cameras already in place; the rest of the law enforcement agencies must have body cameras implemented by 2025.

Lawmakers dedicated $30 million to local law enforcement camera grants in the Fiscal Year 2023 budget.

The SAFE-T Act requires cameras be turned on at all times when the officer is in uniform and responding to calls for any law enforcement-related encounter. The camera can be turned off if circumstances prevent it from being on, or when an officer is inside a correctional facility or patrol car with a functioning camera system.

Victims of a crime, witnesses or community members can request a camera be turned off unless it is impractical or impossible to do so. it also can be turned off when an officer is interacting with a confidential informant.

But Wojcicki said having an officer turn the body camera off and on too much could set up an officer to be in violation of the law because of it being too detailed and that the language needs to be simplified.

The legislation also contains provisions on victim services, mental health services and sentencing reform, and it creates databases and oversight boards to help with transparency and to navigate what aspects of the bill need to be tweaked moving forward.

“What we know is that this takes a more comprehensive, holistic, robust approach as we look at all the myriad of different complex issues that go into crime environments,” Slaughter said.