Legal Experts Explain Why the Pretrial Fairness Act Isn’t a ‘Purge Law’ in Illinois – NBC Chicago

Will there be a so-called “purge” coming to Illinois and Chicago?

Across social media and in political speeches and ads, Illinois’ elimination of cash bail as part of new legislation set to take effect in the coming months has been the source of misinformation, with some even likening it to the horror film “The Purge,” in which criminal activity of all kinds is allowed for 12 hours.

But according to legal experts, social media posts and conservative news outlets have been distorting how Illinois’ Pretrial Fairness Act, which is scheduled to take effect Jan. 1, will work.

“It’s much to do about nothing,” Richard Kling, a clinical professor of law at the Chicago–Kent College of Law in Chicago told NBC Chicago. “I think realistically people who are dangerous are still going to be kept in custody.”

While other states, including New Jersey and New York, have passed legislation largely curtailing the use of cash bail for pretrial detentions, the state of Illinois will go one step further in January and eliminate cash bail entirely.

Under the law, the state will allow judges to determine whether individuals accused of a wide range of crimes pose a risk to another individual or to the community at large, and then decide whether to hold them in pretrial detention or to release them on their own recognizance.

But across social media, posts list a range of violent crimes that they say will be considered “non-detainable,” including second-degree murder, kidnapping, robbery, burglary and arson.

It’s a claim legislators and Gov. J.B. Pritzker have said is false.

According to Olayemi Olurin, a public defender for the Legal Aid Society in New York who recently went viral on Twitter for her explanation of Illinois’ Pretrial Fairness Act, the idea of the new law being a “purge law” is not accurate.

“The purge is a time a time where they say this is a free for all. All crime is legal for the next 24 hours. That’s the concept of the purge, right?” she told NBC Chicago in an interview Friday. “That is not the case here in any way, shape or form what this law actually does. This is just redressing bail. That’s all this is is addressing bail. You can’t… you are not being given and invited for any free for all for crime.”

Still, the elimination of cash bail among the most contentious parts of the “SAFE-T Act,” a wide-ranging criminal justice bill Illinois lawmakers passed in 2021 in response to the nationwide reckoning on racism and police brutality. But the law doesn’t create a new classification of “non-detainable” offenses, as critics claim.

Suspects can still be jailed pretrial if they are considered a public safety risk or likely to flee to avoid criminal prosecution, said Lauryn Gouldin, a criminal law professor at Syracuse University in New York who studies pretrial detention and bail.

The new law states: “Detention only shall be imposed when it is determined that the defendant poses a specific, real and present threat to a person, or has a high likelihood of willful flight.” Additionally, those charged with “forcible felonies,” ones in which probation isn’t an option if convicted, can also be detained pretrial under the law following a required court hearing, said Benjamin Ruddell, director of criminal justice policy at the American Civil Liberties Union of Illinois, which was among the local advocacy groups that supported the measure.

That includes serious crimes such as first-degree murder and criminal sexual assault. Those arrested for forcible felonies such as second-degree murder, robbery, burglary, arson, kidnapping and aggravated battery — the crimes often cited by opponents of the bill on social media — are not required to have a detention hearing since they are offenses subject to probation. The suspects could, however, still be held in custody until trial if a judge determines they are a threat or flight risk.

“Contrary to the false arguments advanced by opponents, the new pretrial system will not simply release every person arrested for a crime,” Jordan Abudayyeh, a spokesperson for Pritzker, wrote in an email.

Still, the new law does impose higher standards for determining who is considered a public threat or a flight risk, and critics are concerned it will make it nearly impossible to detain a suspect ahead of trial. Prosecutors will now have to show a defendant poses a threat to a “specific, identifiable person or persons,” rather than a more general threat to the community, or they’d have to show that the person has a “high likelihood of willful flight.”

“This is a much higher burden than commonly used today in courts throughout the country,” says Jon Walters, an assistant state’s attorney in the office of Will County State’s Attorney James Glasgow, who has been a vocal critic of the new law. “The new standards could potentially be insurmountable.”

Here’s what we know about the Pretrial Fairness Act.

When Does it Go Into Effect

The Pretrial Fairness Act, part of the omnibus “Safe-T Act” passed by the Illinois General Assembly in 2021, will go into effect on Jan. 1, 2023.

Can Defendants Still be Held in Jail Prior to Their Trials?

While some publications and social media posts, cited by Snopes, have argued that some crimes will become “non-detainable offenses,” including second-degree murder and other violent acts, the state says that judges will still be allowed to order pretrial detention in specific circumstances.

“Detention only shall be imposed when it is determined that the defendant poses a specific, real and present threat to a person, or has a high likelihood of willful flight,” according to the text of the bill.

A hearing will be required to determine whether a defendant poses that risk, and if the court finds that they do, then a judge will be required to submit their reasoning in writing under the parameters of the legislation.

The nature and circumstances of the charges, the weight of evidence against the defendant, the defendant’s history and characteristics and the risks that would be posed by release will all be evaluated, according to CivicFed.

According to the legislation, the state will bear the burden of proof in cases, required to present “clear and convincing evidence that the defendant committed an offense that qualifies for pretrial condition,” as well as to present evidence that they would pose a “real and present threat” to the safety of others if released.

So What Crimes Can Result in Pretrial Detention?

According to the text of the bill, defendants can be denied pretrial release if a hearing finds that they meet any of the following criteria:

-The defendant is charged with a “forcible felony” that comes with a mandatory sentence of imprisonment without probation upon conviction, and that the release of that defendant would constitute a threat to any person or the community at large.

“Forcible felonies” include “first degree murder, second degree murder, predatory criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, kidnapping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.”

-If the defendant is charged with stalking or aggravated stalking, and their release would pose a threat to the community or to an individual.

-If the defendant is charged with domestic battery or aggravated domestic battery, and their release would pose a threat to the community or an individual.

-If the defendant is charged with a sex offense, and their release would pose a threat to the community or an individual.

-If the defendant has a high likelihood of “willful flight to avoid prosecution” and is charged with a forcible felony.

How Will the Hearings Work?

If the state seeks to find that a defendant must be held in pretrial detention, then they are required to hold an immediate hearing to argue their position.

Judges can issue short continuances of up to 48 hours from the filing of that petition, but a decision will need to be reached quickly.

According to the bill, even if a defendant is found to qualify for pretrial detention, periodic hearings will be held to determine whether circumstances have remained the same.

Will All Defendants Currently in Jail be Freed on Jan. 1?

Pritzker’s office says that the bill does not mandate immediate release for those accused of specific felonies and misdemeanors.

Courts will have the option to release individuals if they find that the defendants do not pose an active threat to the community or to another individual.

Why is the State Eliminating Cash Bail?

Proponents of the bill argue that the cash bail system disproportionately impacts minority communities, and that eliminating the practice will help to ensure more equitable outcomes.

“For far too many people, their assessment was based not on their risk but on the amount that they could afford to pay, so eliminating cash bail makes this about risk and not about poverty,” Cook County State’s Attorney Kim Foxx said.  

According to the Center for American Progress, three out of five individuals in U.S. jails have not been convicted of a crime, and many departments and agencies throughout the state are anticipating that the number of inmates will decrease dramatically when the new policy is implemented.

Anticipating a reduction in the number of inmates, Kane County and Kendall County are joining together to potentially house Kendall County inmates before trial.

Why Are Some Officials Against the Changes?

Some Illinois law enforcement officials have expressed concerns that the bill requires a higher burden of proof to detain accused violent criminals, and have criticized the scope of the legislation, saying that more exact procedures and standards should have been enacted instead.

Some Republicans, including State Sen. John Curran, argue that New Jersey’s bill, which allows cash bail in limited circumstances, could be a model for Illinois to follow rather than a full-scale dissolution of the bail system, according to The Pantagraph.

Other Republicans have been much more intense with their criticisms of the bill. State Rep. Patrick Windhorst argued that the bill would allow “almost all drug offenses” to qualify for pretrial release, along with burglary, arson, kidnapping.

A social media post, complete with a siren recognizable from the film “The Purge,” also featured a headline from a conservative PAC-funded mailing that was stylized as a newspaper.

In that publication, cited by the Christian Broadcasting Network, an article claimed that crimes including second degree murder and drug-induced homicide would be “non-detainable.”

The term “non-detainable” does not appear in the text of the bill.

In an Instagram post, Pritzker pushed back against the demonization of “non-detainable” offenses, and said that victims’ rights activists have largely supported the measure.

“HB 3653 does not mandate release, and is supported by victims’ rights advocates,” he said. ‘It ensures that the courts retain the ability to hold defendants who are safety or flight risks.”

How New Jersey’s Law Works, and What Has Happened Since Its Passage

In New Jersey, judges can still set cash bail, but only if there’s a risk the defendant won’t appear in court. Prosecutors also can’t seek cash bail unless they can make the finding first that a defendant can afford it.

Unlike in Illinois, every felony charge in New Jersey is detainable, giving prosecutors a wider range of charges that they can push for pretrial detention.

According to the American Bar Association, citing data released by the New Jersey judiciary, the number of people in jail awaiting trial in New Jersey fell by more than 40% between 2016 and 2019, with the state’s criminal justice reform act taking effect in 2017.

The bill also included a provision that required that defendants be brought to trial within six months of indictment.

What Has Happened in Other States Where Cash Bail Has Been Curtailed?

New York diminished its use of cash bail in 2019.

According to the New York City Comptroller, of the 48,000 people in March 2021 that were waiting at home for criminal cases to be resolved, 96% were not rearrested, and only 1% were rearrested for a violent felony offense.

Despite that, nearly two-thirds of New Yorkers thought that bail reform led to an increase in crime, according to the Connecticut Mirror.