FACT CHECK: Separating the truth from fiction in the debate over Illinois' SAFE-T Act

Patrick Keck
State Journal-Register
Judge's gavel

There are multiple hot-button issues this election season, but perhaps none have made as many recent headlines as the SAFE-T Act and its no cash bail provision.

Passed by the Illinois General Assembly and signed into law last year by Gov. JB Pritzker, House Bill 3653 is a major criminal justice reform bill that orders all police departments to have body cameras by 2025 and updates police use of force guidelines among other requirements.

Much of the bill went into effect in July 2021, but the end of cash bail, going into effect on Jan. 1, 2023, has not. While more than 100 days until the start of next year, the provision has become a rallying cry for Republicans on the campaign trail and in online forums.

There are ample social media posts detailing the bill, but some are more accurate than others.

The end of cash bail and more:What's in Illinois' SAFE-T Act?

What are the non-detainable offenses in the bill?

A graphic attributed to a news organization has been well-circulated on social media, listing 11 offenses that would be "non-detainable" due to the end of cash bail.

CLAIM: The following are the offenses WFCN News, an online-based outlet covering southern Illinois since 2017, claims:

  • Aggravated battery
  • Aggravated DUI
  • Aggravated fleeing
  • Arson
  • Burglary
  • Drug-induced homicide
  • Intimidation
  • Kidnapping
  • Robbery
  • Second-degree murder
  • Threatening a public official

FACT: As for the language of the bill, Section 110-6.1.a. describes several of these charges as a "forcible felony offense" where a judge could withhold pretrial release. Under the state criminal code, those offenses include "treason, first-degree murder, second-degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnapping, 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 charged with a non-probational forced felony offense "poses a specific, real and present threat to any person or the community," a judge could order the individual to remain behind bars. However for cases eligible for probation such as aggravated battery, burglary, second-degree murder, and more, this standard would not apply.

The governor's office responded to the claims earlier this week, specifying that non-detainable offenses do not exist. However, there are some exceptions.

In addition to the real and present threat standard, the willful flight provision is included in the bill to address those who have made official plans to evade prosecution. Opponents to this standard say it is challenging to prove an individual's flee attempts unless explicitly expressed.

This standard also would not apply to Class 4 felonies, meaning those accused of aggravated DUI and driving on a revoked license would not face pretrial detention.

Is this a 'Purge Law?'

Taking the name from the dystopian film series which legalizes all crime on a temporary basis, videos on Tik Tok have garnered thousands of views by calling the bill a "Purge Law."

CLAIM: One such clip shows Orland Park mayor and U.S. Illinois House District 6 candidate Keith Pekau describing what the bill means to his constituents in the Chicago suburb. The Republican made several claims regarding the bill, including preventing law enforcement from removing trespassers from a residence or place of business.

FACT: The bill's only explicit mention of trespassing refers to trespass of vehicles, but still applies due to the degree of the crime. Typically listed as a Class B misdemeanor, a charge for criminal trespassing can lead up to six months in jail or a $1,500 fine.

Being a Class B misdemeanor, Section 109-1, A-1 says law enforcement should "issue a citation in lieu of custodial arrest" but only if the suspect is again not deemed by a judge as a threat to the community or if they have any "medical or mental health issues that pose a risk to their own safety."

If a suspect qualifies for pretrial release, they are scheduled to return to court within 21 days.

CLAIM: Pekau also takes issue with how the bill handles electronic monitoring, which typically involves an ankle strap on a suspect so law enforcement can know their location.

"Offenders released on electronic monitoring have to be in violation for 48 hours before law enforcement can act," he said in the video from Orland Park Village Board meeting earlier this month. "They could almost drive to Alaska before we can even look for them."

FACT: Per the legislation, electronic monitoring should only be used if "no less restrictive condition" exists for a pretrial release.

As for Pekau's claim regarding law enforcement action, Section 5-8A - 4.1 says a suspect that fails to comply with the electronic monitoring program would be guilty of either a Class 3 felony, Class B misdemeanor, or Class 1 felony if they remain in violation for at least 48 hours.

The severity of the charge depends on the initial charge and if the suspect is armed with a dangerous weapon.

Will this lead to an emptying of prisons?

CLAIM: Among concerns about the provision among Republicans and some state's attorneys is their claim of prison walkouts. Recently, Madison County State's Attorney Thomas Haine said in a letter to the governor that roughly half of his county's jail population would be released on New Year's Day because of the SAFE-T Act.

FACT: While those already sentenced will not be affected by the end of cash bail, research indicates there will be significant reductions to jails statewide.

A significant portion (89%) of the state's 2020 to 2021 prison population - totaling 172,114 of the 193,387 Illinoisans behind bars- were being held pretrial, spending an average of 34 days in prison according to a study from Loyola University of Chicago’s Center for Criminal Justice Research.

Collectively, that number is expected to drop to between 44,000 and 70,000 eligible for pre-trial containment once the Pretrial Fairness Act kicks-in starting 2023.

Defining this time period as "post-Covid," the report suggests that if trends continue "somewhere between 89,000 and 115,000 individuals per year could not be initially detained under the PFA once the law goes into effect." Class 4 felonies being essentially non-detainable play a role in this reduction, according to the report.

What do gubernatorial candidates say about the SAFE-T Act?

Republican gubernatorial candidate Darren Bailey held multiple press conferences in Chicago recently, again attacking Pritzker, Chicago Mayor Lori Lightfoot, and Cook County State's Attorney Kim Foxx for gun violence and crime in the city.

On Wednesday, Bailey and running mate Stephanie Trussell held a press conference in Washington Park -- the site of a Tuesday night shooting with two fatalities. He specifically targeted Foxx, claiming that she has failed to prosecute violent criminals.

"I bet the people who shot up this place last night had been arrested before," he said. "Get them off the streets."

This was a continuation of what he told reporters in Springfield, where he believes this issue will become statewide under the end of cash bail. There, and throughout the campaign, he called for the repeal of the SAFE-T Act. However, he has not offered alternatives.

Related:Candidates for Illinois governor talk public safety at separate Tuesday events

At a Sept. 14 news conference, Pritzker reiterated he supports the new law but didn’t say when changes would happen or to what extent they are necessary. 

“Are there changes or adjustments that need to be made? Of course,” he said. “And there have been adjustments made and there will continue to be. Laws are not immutable.”

Now renting an apartment in the Magnificent Mile, Bailey has come under fire by the Pritzker campaign for his voting record as a state senator on law enforcement measures.

One of his "no" votes included the fiscal year 2023 budget, which includes $30 million in grants for law enforcement body cameras and $10 million for a local law enforcement retention grant program.

Editor's Note: This story has been updated to clarify which crimes are non-detainable under the end of no cash bail and how the Illinois prison population is expected to be impacted starting Jan. 1, 2023.

Capitol News Illinois contributed.

Contact Patrick Keck: 312-549-9340, pkeck@gannett.com, twitter.com/@pkeckreporter