With Gov. J.B. Pritzker winning a second term and Democrats holding onto their supermajorities in the General Assembly, Illinois lawmakers this weekhead into their final session of the year with an agenda that could include tweaks to key provisions of a controversial criminal justice law.
The law, known as the SAFE-T Act, generated extreme heat during the just-completed election, as Republicans painted Pritzker and the Democrats as soft on crime for backing a measure that, among many other things, does away with cash bail as of New Year’s Day.
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While Democrats wrote and passed the law, party leaders including the governor and Attorney General Kwame Raoul have acknowledged that some fixes are needed. Pritzker said a priority of the session that begins Tuesday will be to clarify the discretion that judges will have to detain defendants who pose a risk under the cashless bail system.
“There’s a lot of work that’s been done by the General Assembly over the last number of months and working groups and so they’re gonna bring that to the veto session and I’ll be watching carefully,” Pritzker said Wednesday during an unrelated news conference. “I’ve made my thoughts clear and we’ll see if we can get something done during the veto session to address the changes that … ought to be made.”
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The upcoming session is not expected to address other issues that played high profile roles in the election, including additional protections for abortion access and a proposed ban on assault-style weapons. Those highly fraught topics likely will be pushed off into the new year, when the current crop of lawmakers returns to Springfield for a lame-duck session before newly elected legislators are sworn in.
After meeting for three days this week, the legislature is scheduled to convene for its three final days of the year during the week after Thanksgiving, when if history holds any serious work is most likely to get done.
The criminal justice reform bill signed into law by Pritzker in early 2021 was aimed at improving police accountability and creating a more equitable criminal justice system. Many of its provisions, such as requiring police officers to wear bodycams by 2025, are not particularly controversial.
But doing away with cash bail, which is largely aimed at assuring defendants including those without means aren’t kept behind bars simply because they can’t afford a modest bail amount, has proved a flashpoint. Republicans during the just completed election season hammered voters with the message that doing away with bail would open up the jails and allow defendants accused of violent crimes out on the streets.
Much of what went out was misinformation, as the law allows judges the discretion to keep defendants behind bars if they’re deemed a flight risk or a danger to the public.
But many in law enforcement are adamantly against the SAFE-T Act and its no cash bail policy. This fall, about 60 state’s attorneys across Illinois, including some Democrats, joined a lawsuit against Pritzker and other top Democrats contending that the passage of the law violated the Illinois constitution. A Kankakee County judge could issue a ruling on the lawsuit as early as next month.
House Republican leader Jim Durkin, who announced the morning after the election that he would not seek another term heading the minority caucus, said the postelection period presents an opportunity to fix problems with the new pretrial release system before it takes effect.
“A window is open for a month and a half to make meaningful changes to the SAFE-T Act,” said Durkin, a former Cook County prosecutor who’s been an outspoken critic of the legislation. “And if the Democrats wish to engage and find responsible changes to this law before it goes into effect, count me in. But I have not been asked over the past year to participate in any type of negotiations.”
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Durkin, of Western Springs, said he doesn’t expect Democrats to invite Republicans to participate because it “would be an admission … of failure” by the party that backed the law.
Under the cashless bail system, defendants will appear for two hearings, an initial hearing and a detention hearing, a process that seeks to provide a more comprehensive look at whether they should be released or detained as they await trial.
Officials have stressed that the provision doesn’t mean defendants accused of violent crimes will automatically go free. Judges will review the circumstances and decide whether to keep someone in custody while charges are pending. An Illinois Supreme Court task force is working to help criminal courts across the state prepare for the change.
One section of the law that’s concerning to its opponents addresses how defendants are deemed to be a flight risk. As written, the law says prosecutors cannot solely use a defendant’s past failures to appear in court to convince judges that they could be a flight risk. Instead, authorities would be required to prove that the defendant is planning to intentionally flee prosecution.
Also a concern by the law’s opponents is a measure that requires police officers to issue tickets, instead of making arrests, for certain misdemeanors if the suspect poses no threat to the community. The misdemeanors include trespassing, leading to fears fanned by opponents of the law that it’d be impossible to get a stranger off private property.
People familiar with discussions about the changes said the law could be clarified to ensure that police have the option to make arrests in these situations.
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“I’ll be advocating for clarity to make sure that the language is in the best interest of the public so that police have the tools that they need in the law and it’s clear that they have the instructions through law to arrest people for trespassing,” said state Rep. La Shawn Ford, a Chicago Democrat who voted for the SAFE-T Act. “If we don’t make this clear, it puts the burden on the citizens to take matters into their own hands, and we don’t need that.”
Garien Gatewood, who helps run an advocacy group for people who’ve been incarcerated, said discussions about the law initially were dominated by police accountability issues. The legislation was spurred in part by George Floyd’s murder at the hands of Minneapolis police, among other things.
But in the months leading to Tuesday’s election, the no-bail provision became the major point of controversy, leading to “an unprecedented amount of pushback for the bill,” Gatewood said. Behind many of the political mailings decrying the law was conservative radio host Dan Proft, of Naples, Fla., who runs an independent expenditure committee that supported Republican governor nominee Darren Bailey.
“The timing of it comes as no surprise. This is what we kind of expected, obviously not to this level,” said Gatewood, the director of the Illinois Justice Project, who is taking part in discussions with state legislators about potential changes to the law. “But it’s given us an opportunity to push back on misinformation.”
Democratic state Sen. Scott Bennett of Champaign, a former prosecutor, has pushed for changes to the law that would include allowing past failures to show up for court alone to be used as convincing evidence to keep defendants locked up.
During the campaign, Pritzker pointed to Bennett’s ideas as worthy of consideration, but other advocates have pushed back on them as potentially undermining the intent of ditching a cash bail system.
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One of the challenges facing lawmakers in the upcoming session is that any measure that passes requires a three-fifths majority in both chambers if it is to take immediate effect. While Democrats hold supermajorities in both chambers, rounding up enough votes on controversial matters to clear that hurdle isn’t always a given.
That’s a major reason why any action on hot-button issues like gun control and abortion is more likely to come after the new year, when only a simple majority would be needed.
Many Democrats, including Pritzker, have been pushing for a ban on the sale military-style assault weapons and high-capacity ammunition magazines since the mass shooting in Highland Park on the Fourth of July that left seven people dead and a couple dozen others hurt.
Pritzker and other Democrats also have been looking for ways to strengthen the state’s already formidable protections for abortion access, and to support providers who are grappling with an influx of patients from other states, in light of the U.S. Supreme Court’s decision to overturn Roe v. Wade this summer.
The day after his victory over Bailey, Pritzker said both items remain on the agenda, if not in the upcoming session “in January or early in the (next) session.”
“We are going to work on passing an assault weapons ban and making sure that we are protecting women’s reproductive rights by expanding capacity and … making the investments that are necessary here in our state to protect women,” Pritzker said.
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A group of House Democrats has been meeting since summer with law enforcement, victims, gun-safety advocates and others to develop proposals to address gun violence, said Rep. Bob Morgan of Deerfield, who’s leading the discussion.
“We have almost completed our work and will have recommendations to share in the coming weeks,” Morgan said in a statement Wednesday.
Rep. Kelly Cassidy, a Chicago Democrat who’s leading negotiations in the House on potential changes to the state’s abortion laws, said lawmakers and advocates are working methodically to make sure that any new legislation protecting providers or patients who may be subjected to punitive policies in other states isn’t vulnerable to lawsuits.
“We’re trying to be surgical in the way we do it so that it has the greatest likelihood of sustaining a court challenge,” Cassidy said.
Taking more time also will allow proponents to assess what impact an election night victory for a ballot measure on abortion rights in Michigan might have on the landscape in Illinois, Cassidy said.
The Tribune’s Rick Pearson contributed to this story.
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