LawPulse

Most provisions of major criminal reform legislation took effect January 1.

The General Assembly in early December amended an expansive set of criminal justice and policing reforms in the Illinois Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act, which includes the elimination of monetary bail in Illinois. The original version of the Act was signed into law in early 2021, and while many of its provisions have already taken effect, the recent revisions to the law are primarily geared toward successful implementation of the new monetary-free bond system, which took effect on Jan. 1, 2023. A handful of the new provisions took effect immediately upon Gov. Pritzker’s signature on Dec. 6.

Working with the Illinois State Bar Association’s department of legislative affairs, the Illinois Bar Journal presents most of the SAFE-T Act’s new measures below. The Act continues to face lawsuits challenging its constitutionality, including those based on the Illinois Constitution’s single-subject clause and the Constitution’s references to bail and sureties.

Public defender funding and task force. New 30 ILCS 105/5.990 establishes a one-year public defender grant program through the Administrative Office of the Illinois Courts (AOIC) as part of emergency rulemaking. New 55 ILCS 5/3-4014 instructs the AOIC to establish a grant program for counties to train and hire attorneys on contract to assist county public defenders in pretrial detention hearings.

Amended 55 ILCS 5/3-4013 extends the sunset date of the preexisting Public Defender Quality Task Force report date from Dec. 31, 2022, to Dec. 31, 2023, and mandates the task force to recommend legislation to provide for an effective public defender system throughout the state, including encouraging participation of the private bar in representing accused people.

Policing. In the Definitions section of 50 ILCS 706/10-10, “Community caretaking function” is amended to exclude “law enforcement-related encounters or activities.” Also excluded are “participating in training in a classroom” and when in the presence of other law enforcement officers. “[N]ot performing any other law enforcement-related activity” is excluded from the definition of “Law enforcement-related encounters or activities.” 50 ILCS 706/10-15 now creates an additional implementation timeline of body cameras for municipalities between 100,000-500,000 people. Effective dates for body-camera provisions are based on jurisdiction and municipal and county populations and range from Jan. 1, 2022, to Jan. 1, 2025. (The municipality is required to have already ordered the cameras before October 2022 and must provide proof of this purchase.) 50 ILCS 706/10-20(a)(7)(B)(vii) now allows officers to flag body-camera footage for “evidentiary value in a criminal prosecution” as an exception to the standard 90-day deletion timeline.

50 ILCS 706/10-25 deletes “for each recording used in prosecutions of conservation, criminal, or traffic offenses or municipal ordinance violations: (A) the time, date, location, and precinct of the incident; (B) the offense charged and the date charges were filed” from annual reporting requirements.

50 ILCS 707/10(a) allows funds from the Law Enforcement Camera Grant Fund to “be used to offset data storage costs for officer-worn body cameras.”

Mandatory supervised release (MSR). Amended 730 ILCS 5/5-8-1 changes the original SAFE-T Act reform imposing no default MSR terms for people convicted of class 3 and 4 felonies to a default MSR term of six months with a mandatory review within 45 days for possible early discharge. Applies to people already serving sentences when the Act takes effect.

Video hearings. Changes throughout the Act allow video hearings for essentially all court appearances if one of the following things are true: the accused waives the right to an in-person hearing; health and safety requirements necessitate video; or court “operational concerns” necessitate video. “Operational concerns” need to be approved by the chief judge, and a plan to address operational concerns through reasonable efforts needs to be reviewed and approved by the AOIC every six months.

48-hour timeline between arrest and first appearance in court. 725 ILCS 5/109-1(a) creates a 48-hour timeline between arrest and a person’s initial court appearance.

Citations in lieu of arrest. 725 ILCS 5/109-1(a-1) makes explicit the official AOIC interpretation of the Pretrial Fairness Act (PFA): someone who is trespassing and will not stop may be arrested. Requires that a citation be used first before custodial arrest while retaining exception to allow immediate arrest based on safety of others or the accused. Clarifies that arrests are not required for class A misdemeanors or felonies. Clarifies that any officer can release someone from custody and not only “the arresting officer.” Removes requirement that people released from police custody be scheduled into court within 21 days.

Warrants and summonses. Under amended 725 ILCS 5/107-9, either a summons or warrant can be issued in response to a criminal complaint. 725 ILCS 5/109-2 creates a system to resolve out-of-county warrants to ensure people are not indefinitely stranded in detention because of warrants in other counties. Jurisdictions must resolve people’s release status within five days.

725 ILCS 5/109-2 also clarifies a judge’s ability to immediately issue warrants in response to missed court dates (a judge may use a warrant or summons when someone misses court or violates their release terms). A summons, rather than a warrant, should be used whenever possible to ensure people’s appearance in court; retains and clarifies the original PFA provision that people who appear in court in response to a voluntarily issued summons will not have a failure to appear recorded in the court record.

Attorney-client interactions. 725 ILCS 5/109-1(a-5) deletes reference to court-appointed attorney representation in initial appearances and detention hearings “for purposes of that hearing.” 725 ILCS 5/109-1(g) allows attorneys to communicate with clients confidentially if an initial appearance or detention hearing is held over nonrecorded video. 725 ILCS 5/110-5(f) provides that court-appointed attorneys must be appointed sufficiently in advance to do their job well and must be given same information relied on by the prosecution and that is presented to the court.

Definition of willful flight. 725 ILCS 5/110-1(f) provides that “Willful flight” must take into account repeated instances or patterns of intentional conduct to evade prosecution, along with any affirmative steps taken to remedy past missed court dates.

Changes to detention standards, eligibility, hearings, and pretrial release. Multiple amendments change the safety standard throughout the bail statutes to appear everywhere as “real and present threat to the safety of any person or the community, based on the specific, articulable facts of the case.” This makes clear that judges must look at the current allegation, not just someone’s background or their own general impressions, to make a decision about dangerousness.

725 ILCS 5/110-6.1(e)(4) creates a heightened standard for drug charges that involve small amounts of drugs but are nonprobationable because of where they happened. In those cases, prosecutors must prove that someone poses a safety risk AND that there is a serious risk that they will not appear in court.

725 ILCS 5/110-6.1(a) regards offenses that are detainable for safety reasons, including all nonforcible, nonprobationable felony charges to the safety detention net. This mostly includes serious drug charges, repeat DUIs, and forcible felonies. A list is provided of charges that are considered forcible for the purposes of this section. That list exempts burglaries where no one is harmed and aggravated batteries where there is no great bodily harm. 725 ILCS 5/110-6.1(a)(3) corrects a drafting error in the original PFA language that would have potentially made many low-level charges detention eligible because it broadly referenced victims who are family or household members. Focus is now centered on accusations of domestic violence and violations of protective orders, as originally intended.

725 ILCS 5/110-6.1(a)(6)(P) adds additional enumerated charges to the detention net: reckless homicide and involuntary manslaughter; residential burglary; child abduction; felony child endangerment; hate crimes; aggravated unlawful restraint; threatening a public official; aggravated battery with a deadly weapon; felony animal cruelty; aggravated DUI when operating a school bus, causing great bodily harm, after a previous reckless homicide conviction, causing death, and causing bodily harm to a child under 16. Adds attempts to commit any of the enumerated charges.

725 ILCS 5/110-6.1(d)(2) requires that if the state files a new petition for detention later in the case than the original petition, it must show new facts not available at the first petition. 725 ILCS 5/110-6.1(f)(1) removes reference to Illinois Supreme Court Rule in disclosure requirements from prosecution to defense; adds requirement that defense counsel have in-person access to their client before a detention hearing—and that any video communications between attorney and client are not recorded and are private.

725 ILCS 5/110-6.1(f)(4) clarifies prosecutorial disclosure requirements to defense in advance of detention hearings (all copies of criminal history, all written or recorded statements, and the substance of any oral statements in possession at the time of the hearing). Moves prohibition on risk-assessment tools being used to deny release to the section governing detention hearings. Removes a requirement that the court make a written finding summarizing the evidence of the accused person’s guilt or innocence. Requires the court to make a written finding of why less-restrictive conditions would not mitigate safety or willful flight risks.

725 ILCS 5/110-6.1(i) maintains the 90-day clock for release for people who are detained but adds explicit permission for the state to extend that timeline (e.g., if they are waiting on DNA evidence that has not been processed or other evidence). Moves the requirement that the court make a finding at each subsequent appearance that continued detention is necessary to the section governing detention hearings. Moves the explicit authorization for the court to enter no-contact orders (even if someone is denied release and ordered detained) to the section governing detention hearings.

Conditions of release. Amendments to 725 ILCS 5/110-5 move language around special considerations in domestic violence and stalking cases to a different part of this section to clarify decision-making. These changes clarify that conditions of release must be the least-restrictive necessary and reinstate language clarifying that electronic surveillance (GPS with exclusion zones) can be used in domestic violence cases. 725 ILCS 5/110-5(e) requires that if a person remains in custody because they cannot meet a condition of their release (e.g., if they cannot afford to pay for electronic monitoring) that they must receive a rehearing within 48 hours to facilitate their release with different conditions. 725 ILCS 5/110-5(f-5) requires that courts make findings every court date that the conditions set are still necessary. 725 ILCS 5/110-5(k) allows appeals of conditions of pretrial release. 725 ILCS 5/110-10(b) clarifies that additional, optional conditions of release must only be set when necessary to achieve enumerated objectives. Requires that conditions of release only include rehabilitative services if tied to pretrial misconduct risk. Requires that conditions of release not include punitive conditions like community service or restitution.

Changes to 725 ILCS 5/110-10(b) also remove references to certain specified conditions a court can impose (but leaves in place a broad authorization to impose “such other reasonable conditions”). They also remove explicit permission to charge accused people fees for mandated treatment, electronic monitoring, and pretrial services monitoring. 725 ILCS 5/110-10(b)(8) adds language allowing courts to require admonishment around address change notifications and requires that accused people receive verbal and written notification of conditions of pretrial release and future court dates. These changes also delete a provision around no-contact provisions and moves it to 725 ILCS 110-6.1 because it only deals those denied release.

Transition (application to people with previously set bonds). New 725 ILCS 5/110-6.6 outlines timeline and process for reviewing people whose bonds were set before Jan. 1, 2023. New 725 ILCS 5/110-7.5 reinstates statutes governing how previously paid bonds are processed and applied.

Consecutive sentencing. Changes to 730 ILCS 5/5-8-4 remove the requirement that new charges filed while someone is on pretrial release or in custody awaiting trial be served consecutively with the underlying case. Judges can still impose consecutive sentences.

Electronic monitoring. 730 ILCS 5/5-8A-4(A-1) clarifies that “days” means “a reasonable time period” during a calendar day, giving people on pretrial electronic monitoring essential movement to attend to basic needs at least two days per week. The definition of “escape from electronic monitoring” (a criminal offense) is also changed to remove the requirement that someone be in violation for 48 hours but requires intent to evade prosecution, or knowingly and intentionally removing, damaging, or circumventing the device. It is also clarified that any nonescape violation of electronic monitoring conditions should be dealt with through the violations of conditions process outlined in 725 ILCS 5/110-6.

Other technical changes. Language erroneously added in the original SAFE-T Act that would have required police to report conditions of release to the press, including no-longer-relevant bond and bail amounts, has been removed. 20 ILCS 3930/7.7(c)(2) creates a new requirement that the AOIC collect and publish data on outcomes for video versus in-person detention hearings. Technical changes to the Illinois Vehicle Code ensure action is taken only on revocation of pretrial release and not merely alleged violations.

Outstanding references to money bonds for witnesses have been removed and penalties for failure to comply have been reduced. All references to monetary sureties/money bond have been removed and “non-probationable” is defined as a charge that mandates imprisonment in the penitentiary (rather than in the county jail) so that “non-probationable” under 725 ILCS 5/110-6.1 is not inadvertently interpreted to include lower-level offenses. Redefines “protective order” to include all common protective orders.

725 ILCS 5/110-2(b) confirms that the state bears the burden of proof in all issues under the PFA and that the standard of proof is “clear and convincing.”

725 ILCS 5/110-5(h) requires that people be given custodial credit for electronic monitoring with home confinement. Judges may give credit if the person is location-monitored and not home-confined.

725 ILCS 5/110-5.2(b) ensures that pregnant pretrial detainees the same procedural rights as others under the PFA; authorizes movement for pregnant and recent postpartum people on electronic monitoring.

New 725 ILCS 5/110-6.6 creates a new section on appeals with process to be governed by Illinois Supreme Court Rule. Allows recorded transcripts to serve as the record on appeal.

725 ILCS 5/110-12 deletes “public” from requirement that accused people’s addresses be kept updated with the court.

725 ILCS 5/113-3.1(c) deletes allowing courts to use bond money to pay for court-appointed counsel.

Changes to 725 ILCS 5/110-14 allow use of certified or regular mail to serve a summons in criminal cases; restores an erroneously deleted provision allowing for credit (now automatic) toward fines for time people spend incarcerated pretrial.

Changes to 725 ILCS 185/19 remove outstanding references to “financial security” from the Pretrial Services Act and replaces them with references to conditions of release.

Sharlyn Grace, a senior policy advisor for the Law Office of the Cook County Public Defender, and Sarah Staudt, director of policy for the Chicago Appleseed Center for Fair Courts, contributed significantly to this article.

Pete Sherman is managing editor of the Illinois Bar Journal.
psherman@isba.org