Hammered by Crime Wave, Chicago Faces Curbs on Pretrial Detention

Officers set up crime tape outside a Chicago Police Department building in Homan Square in Chicago on Sept. 26, 2022. (Anthony Vazquez/Chicago Sun-Times via AP)

Even as Chicago struggles through mounting crime, public safety advocates expect that worse times are ahead as the state of Illinois is about to severely curtail pretrial detention—a policy that they worry will put more criminals on the streets statewide.

Already enduring high rates of violent crime for decades, Chicago saw murders skyrocket in 2020 by 55 percent and rise further into 2021 (pdf). So far this year, murders have eased by 16 percent, but other crime has shot up—car theft is up by 71 percent, other theft by 61 percent, robbery by 17 percent, and burglary by 25 percent compared to the same period last year (pdf).

The city’s police have been complaining that their efforts to arrest criminals go to waste because they see them quickly back on the streets again. That problem is now poised to become worse with the state’s bail reform provisions taking effect in January. The reform, part of a large piece of legislation called the SAFE-T Act of 2021, primarily denies judges the ability to release defendants on cash bonds. It goes further, however, several lawyers and law enforcement professionals told NTD, a sister media outlet of The Epoch Times.

Starting in January, defendants will only be kept in custody pending trial if the crime they’re accused of is specifically listed in the law. Nonviolent offenses and some violent ones don’t fall into that category, even for repeat offenders. The only crimes for which prosecutors would have an easy way to keep a suspect detained are those that carry life-in-prison sentences, such as murder and some kinds of attempted murder, according to Michael Levinsohn, a criminal defense attorney practicing in Cook County, which includes Chicago.

No drug offenders, including dealers and manufacturers, would be “detainable” pretrial, nor would defendants in any cases in which they could potentially only face probation, such as second-degree murder, robbery, carjacking, or residential burglary, according to Patrick Kenneally, state’s attorney in McHenry County, who’s suing the state government over the law.

Even for most crimes in which the law would allow detention, prosecutors would have to prove that the person poses danger to a specific person, rather than to the community in general, as is the case currently.

“That seems unworkable from a public safety standpoint,” Levinsohn said, noting that “it could be often impossible to really prove that.”

He gave the example of a serial carjacker.

“Maybe they’re not really a threat to the person they already hijacked, but maybe they’re a threat to the next person. And how do we know who that next person is?” Levinsohn asked.

The requirement also seems unfeasible in courtroom practice, according to Kenneally.

“A lot of times, the state is being asked to run these hearings and to make these offerings of proof 24 hours after the defendant’s arrest or 24 hours after the crime. And so we just don’t have the time ... to figure out [a] specific and identifiable person they’re a danger to,” he said.

And even if such a person can be identified, the law requires that all other alternatives to detention must be deemed insufficient by the judge. Such alternatives include house arrest, GPS tracking with an ankle monitor, or checking into a drug treatment facility, among others, which are currently recommended in many cases.

The incoming law curbs punishment for violating such alternative arrangements. For example, if a defendant cuts off the ankle monitor and absconds, the current practice is to issue an arrest warrant, which then gets executed by law enforcement to track the person down or, more frequently, busting the person during any future reoffense or encounter with law enforcement.

Releasing Suspects to Address Gaps in Wealth

Under the new law, nothing can be done for the first 48 hours after a pretrial arrangement violation. Then, a notice to appear in court would be issued and handed to a process server, who would try to deliver it at the defendant’s last know address. If the defendant isn’t at home, the server returns the document as unable to be delivered.

There’s no way those notices are going to be served, said Thomas DeVore, a constitutional attorney in southern Illinois running for state attorney general on the Republican ticket.

“People are just going to never get their criminal cases finished, and they’re going to be running around on the streets,” he said.

Cases with out-of-state defendants would be in worse shape still, he argued, giving the example of a person from a different state caught during a traffic stop in Illinois with a kilogram of heroin in his car. Based on the new law, the nonviolent offender would be released within 48 hours and could simply return home with a slim chance of ever facing any penalties.

Supporters of the legislation portray it as righting injustices in the criminal justice system, specifically “so that low-income people aren’t thrown behind bars, while only the wealthy walk free,” as Illinois Gov. J.B. Pritzker put it.

“This legislation marks a substantial step toward true safety, true fairness, and true justice,” Pritzker, a Democrat, said during a February 2021 press conference. “We’ve already seen some opponents of this law spread untruths and promote political fearmongering. But the changes that will be brought about by this new law will bring more justice and more fairness to many who have so often been forgotten.”

Levinsohn acknowledged that the legislation would make some of his clients happy, as they would get released, but he still described it as misguided.

“It’s a big, complicated law looking to solve a problem that doesn’t exist,” he said.

In the past, there used to be people needlessly being held in pre-trial custody for lesser offenses, but “that’s not really the case right now,” at least not in Cook County, he said.

DeVore agreed.

“The court has a desire to let them be free pending trial,“ he said. ”There’s no grand scheme by any court to say, ‘We just want to hold everybody.'”

Alternatives Off the Table in This Reform

The Illinois Constitution requires that defendants, with some exceptions for the most serious crimes, be given an alternative to pretrial detention.

A state law passed a few years ago states that each day in jail counts as $30 toward one’s bond. So for low-level offenses in which the bond may be about $100, the defendant would be out in a few days.

Then, there are questions about how the legislation was conceived to begin with.

“You'll hear that this bill has been rushed, that stakeholders didn’t get a seat at the table, didn’t have enough time to read the bill. These are all false narratives perpetuated by the opponents of this cause because at no point have any of the stakeholders brought us legitimate solutions to deal with what we know were unequal and unjust laws,” state Rep. Carol Ammons, a Democrat and a vice chair of the Progressive Caucus in her chamber, said during the 2021 press conference.

But both Kenneally and DeVore say prosecutors and police weren’t consulted on the legislation.

“We just sort of got pushed out of the negotiations where a lot of this stuff was being done,” Kenneally said.

Ammons also argued that the issue has been discussed for years, including an inquiry by a Supreme Court commission, which she was involved in with some of her colleagues.

“We’ve been on that commission since 2017, trying to deal with the issues of bail reform. So when they say to you that it is rushed, that is a false narrative,” she said.

However, the commission recommended against abolishing cash bail, stating that most counties weren’t ready for it, Kenneally pointed out.

And while bail reform has been discussed in the legislature for years, the actual text of the legislation, which is almost 750 pages long, was unveiled just days before the end of the legislative session and pushed through with minimal time to review or debate it.

Pritzker has already signaled that the legislation may need some “tweaks,” local media outlets reported.

“They realized they made serious mistakes in this legislation, and they’re trying to fix it with the same back-door conversations that created it,” DeVore said.

In its current form, however, it would embolden criminals and undermine the police, according to Eugene Roy, former head of detectives at the Chicago Police Department (CPD).

“It, frankly, harms public safety,” Roy said, noting that it would “make the criminal element lose any respect for the crime-fighting activities” of the police.

Further Hit to Police Morale

The CPD already struggles to maintain its ranks, with about 2,000 officers leaving over the past three years, Roy said. And the legislation “dramatically affects police morale.”

“You put your life on the line, you put a case together, you gather evidence, you make a good arrest, and that person is released within hours to go out and continue their life of crime. It makes you shrug your shoulders and go, ‘Why am I doing this?’” he said.

NTD reached out to Pritzker’s office for comment but received no response.

But both Kenneally and DeVore described cash bail as a reasonable way to ensure that a defendant shows up for trial and complies with pretrial conditions. Judges can set the bail low or high based on the financial situation of the defendant, Kenneally said.

DeVore said he’s willing to talk about further alternatives to cash bail, but he rejected that the alternatives are to either hold people with no option to post a bond or let them go, in essence, on a promise of compliance.

“This statute, believe it or not, is the worst of both worlds,” he said. “Because either scenario is not good.”