September 23rd, 2022
States Attorney Haine,
I was disappointed to read your letter and watch your television interview defending a criminal justice status quo where accused murderers, domestic batterers, rapists, and other dangerous criminals can buy their way out of jail pending trial if they have enough money.
Unfortunately, you made clear in the KDSK interview that your real concern is not about the serious offenses you falsely claim are non-detainable, but to ensure that low level defendants face punishment before they are found guilty. Your approach – seeking to deter possible future crimes by punishing individuals accused of less serious offenses before they have the opportunity to defend themselves in court – is contrary to the foundation of our justice system and based on outdated research that has been debunked.
You also scoff at the notion that the cash bail system contributes to a criminal justice system that disproportionately punishes Black and Brown citizens, saying to KDSK that “there is no truth to the idea that cash bail has a racially disparate impact.” Contrary to your claim, the bipartisan, independent US Commission on Civil Rights, established by Republican President Dwight D. Eisenhower, recently published a report casting light on “stark racial and gender disparities [in the administration of cash bail],” and noting higher pre-trial detention rates and financial conditions of release imposed on Black and Latinx individuals.
In your response to KDSK reporter Mark Maxwell, you admitted that you have seen instances where a defendant accused of a serious crime “[got out of jail], going on to intimidate a witness, going on to harm someone, going on to commit a repeat offense, while they’re out on bail that they paid.” Conversely, the aforementioned report by the bipartisan US Commission on Civil Rights found that 60% of defendants were in jail pre-trial simply because they couldn’t afford bail. That is the broken system that you are defending through fearmongering and unvarnished mistruths.
The SAFE-T Act ensures that those charged with domestic abuse, murder, rape, and other serious crimes cannot buy their way out of prison – as they can right now – because it bases detention on risk rather than wealth. That’s why domestic violence advocacy organizations support ending cash bail , including the Illinois Coalition Against Domestic Violence, who referred to it as reform that prioritizes the safety of survivors.
Furthermore, I was disheartened by your conclusion that you are powerless to keep dangerous people in prison beginning January 1. Your conclusion is not based on the law. Moreover, if your comments are intended to signal that you will refuse to take available steps to seek detention for individuals who present a danger to the community, that would be a dereliction of duty.
Your letter claims that certain offenses become non-detainable under the SAFE-T Act. But your reading of the law has been debunked by multiple non-partisan fact checkers, including the Associated Press, Snopes, and Politifact. Nevertheless, in the interest of justice and safety, I will explain the fallacy in your reading of the law, including your false assertion to Mark Maxwell that prosecutors will have to meet an “unbelievably high standard” to show that a defendant presents a risk of fleeing and must be detained.
You falsely claim that the SAFE-T act creates broad categories of non-detainable offenses, including forceable felonies. That’s simply not true. The most serious forcible felonies, such as first-degree murder, sex offenses, stalking, and gun crimes, such as aggravated discharge of a firearm and unlawful purchase of a firearm, are explicitly detainable where there is a clear risk to public safety. Other probationable felonies that you and others have identified – such as second degree murder and aggravated DUI – allow state’s attorneys several options for detention. Prosecutors may present evidence that the defendant poses a threat to public safety if the forceable felony involved a family member or domestic violence, or that the defendant used a gun. Furthermore, there is nothing in the SAFE-T Act that prevents prosecutors from using their discretion to charge repeat offenders with higher level felonies when the facts indicate it is appropriate. Under this system, risk, not wealth, determines whether these defendants will be detained prior to their trial.
Furthermore, the SAFE-T Act also allows courts to detain those accused of the probationable forcible felonies you reference in your press appearances if the defendants show a high likelihood of fleeing to avoid prosecution. You have argued that this is an “unbelievably high standard” and assert you, and other prosecutors, will be prevented from arguing that a defendant is likely to evade prosecution because of the seriousness of the charge. But nothing in the SAFE-T act prevents a prosecutor from making that argument for flight risk. In January, neither you, nor prosecutors around Illinois, will be limited by this narrow interpretation that you’ve made today in service of political posturing.
To establish this likelihood of flight, prosecutors will have the opportunity to present arguments supported by the evidence which include but are not limited to the facts of each criminal offense committed, witness statements, the defendant’s criminal background, and prior instances of flight. Prosecutors may also argue that the facts or potential sentence for certain criminal offenses make defendants a flight risk. The judge can weigh all this evidence in determining the likelihood that defendants will flee from prosecution. And again, that evidence—not whether the defendant is rich or poor—will determine whether the defendants are detained.
It is also notable that the SAFE-T Act allows a judge to set more restrictive conditions of pre-trial release, if the judge determines those conditions are necessary based on the specific facts of the case. Such conditions can include electronic monitoring, no contract orders, curfews and other limitations intended to ensure appearance.8 If those conditions are violated, the defendant can be detained. You have expressed your faith in judges to carefully consider relevant evidence and set appropriate bail. This faith should extend to the ability of judges to consider all appropriate evidence and arguments presented by prosecutors in your office to establish a basis to detain suspects when necessary or, alternatively, to set restrictive conditions of release.
I trust that your office will use all of the tools available under the law on January 1, and file motions to detain defendants you consider to be dangerous to the citizens of Madison County.
Governor JB Pritzker
September 28, 2022
Dear Governor Pritzker,
I am in receipt of your letter from last Friday regarding our contending views on the SAFE-T Act. It is clear from your letter that you and I have different philosophies on how best to fight crime. You support the SAFE-T Act. I am joined in my opposition to the SAFE-T Act by 100 out of 102 State’s Attorneys in Illinois. You support eliminating cash bail. I am joined in my support for cash bail by a broad consensus of voters across the political spectrum. For example, the elimination of cash bail was rejected by the citizens of California just two years ago when they passed a referendum supporting cash bail by over 10 points. Likewise, the citizens of New York learned the hard way and rolled back the elimination of cash bail after crime skyrocketed.
But whatever our philosophical disagreements, we can agree on a couple of points: those charged with crimes are innocent until proven guilty, the current cash bail system is not perfect, and any reform should prioritize the safety of our law-abiding citizens.
Your letter also takes issue with some of my legal analyses of the SAFE-T Act. It is imperative that the public receive accurate information about the SAFE-T Act prior to implementation. I encourage you to take a closer look at our claims purely from a statutory construction perspective. You accuse me, and others who agree with my position, of construing the statute too narrowly. But we are merely interpreting its “plain language.” See JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill.2d 455, 461 (2010). As you know, where the plain language of a statute is unambiguous, no court would have the authority to apply a broader interpretation.
In your letter, you state that prosecutors may argue “that a defendant is likely to evade prosecution because of the seriousness of the charge.” (Emphasis added.) You reiterate this point by stating: “prosecutors may … argue that the facts or potential sentence for certain criminal offenses make defendants a flight risk.” (Emphasis added.)
But the SAFE-T Act’s plain language appears to undermine any argument that “willful flight” can be shown by merely “seriousness of the charge.” The Act explicitly defines “willful flight” as “planning or attempting to intentionally evade prosecution by concealing oneself.” 725 ILCS 5/110-1(e). The “seriousness of the charge” may be a motive to flee, but it may not be a plan or attempt. We could attempt such an argument, but the plain language of the SAFE-T Act appears to stand in our way. The SAFE-T Act also makes clear that prior failures to appear by the same defendant are no evidence of “willful flight.” I therefore see little likelihood that we can typically expect to have evidence of “planning or attempting” to flee on hand to present to a judge, particularly when prior failures to appear are excluded from evidence, and especially within 24-48 hours of the initial appearance (the new timeframe imposed by the SAFE-T Act on all pretrial detention hearings). See 725 ILCSs 5/110-6.1(c)(2).
Further, your letter states that under the SAFE-T Act “risk” will “determine whether these defendants will be detained prior to their trial” (Emphasis added.) You then encourage me “to file motions to detain defendants you consider to be dangerous to the citizens of Madison County.” (Emphasis added.)
Sadly, the plain language of the SAFE-T Act forecloses that option in many cases. Section 110-4 of the Act reads as follows: “All persons charged with an offense shall be eligible for pretrial release before conviction. Pre-trial release may only be denied when a person is charged with an offense listed in Section 110-6.1 or when the defendant has a high likelihood of willful flight…” (Emphasis added.) Then section 110-6.1 (Denial of pretrial release), subsection (a), states: “Upon verified petition by the State, the court shall hold a hearing and may deny a defendant pre-trial release only if (1) the defendant is charged with a forcible felony offense for which a sentence of imprisonment, without probation, periodic imprisonment or conditional discharge, is required by law upon conviction, and it is alleged that the defendant’s pre-trial release poses a specific, real and present threat to any person or the community.” (Emphasis added.)
In sum, the plain language of the Act makes pretrial detention offense-specific. A defendant may be dangerous, but even demonstrable risk to others is only relevant to pretrial detention when that defendant is charged with the offenses listed in Section 110-6.1. Or as several pro-SAFE-T Act commentators have even noted: “For an individual to be detained, the state must show the court that the person is charged with an offense within the ‘detention net’ or detention-eligible offense…” 1
You nonetheless say it is “false” to claim that the SAFE-T Act creates “non-detainable offenses.” This term may be controversial, but it remains useful and a candid reflection of the real-life implications of the SAFE-T Act’s plain language and meaning. Please see 725 ILCS 5/110-6(a)(1), regarding revocation of pretrial release “if the defendant is charged with a detainable felony as defined in Section 110-6.1” (Emphasis added.) Plainly speaking, if some offenses are identified in the Act itself as “detainable,” crimes not listed as “detainable” can only be described as non-detainable. Further, as discussed above, the plain language of the Act clearly eliminates judicial discretion to detain dangerous individuals charged with an offense not listed in 110-6.1 unless there is evidence of “willful flight.” But that standard is highly restrictive as presently drafted. Such crimes can therefore be described as non-detainable from a practical perspective as well.
You cite a Snopes online resource in your letter. Many may view this Snopes article as an authoritative analysis of the SAFE-T Act. In fact, it is filled with statements directly at odds with the plain language of the Act. For example, Snopes states that under the SAFE-T Act “pretrial
release can still be denied when any defendant poses a specific, real and present threat to any person or the community.” (Emphasis added). This assertion is flatly false. As discussed above, it is only once a defendant is charged with an offense within the “detention-eligible offenses” outlined in Section 110-6.1 that risk to the public becomes relevant. In fact, later in its own article Snopes quotes that very section of the SAFE-T Act, commenting without apparent irony: “The act also states: “Pretrial release may only be denied when a person is charged with an offense listed in Section 110-6.1 or when the defendant has a high likelihood of willful flight,” (Emphasis added.) Indeed it does.
Then, after getting the law right for just a moment, Snopes concludes its article with a highly deceptive statement: “Under the new law, judges will consider each case on an individual basis to determine release and base their decisions on whether the suspect is a threat to the community or a flight risk.” But again, the Act contains no generalized assessment of “threat to a community” that would allow detention of any defendant. An assessment of a defendant’s “threat” is only relevant when that defendant is charged with a crime listed in Section 110-6.1. And even then, some crimes listed in Section 110-6.1 will not allow detention for merely a “threat to the community” but require a much more specific assessment. For example, to detain a person charged with the offense of Armed Habitual Criminal would require a judge to find “a real and present threat to the physical safety of any specifically identifiable person or persons,” not just “the community.” See Section 110-6.1(a)(6).
It is hard to know why Snopes makes so many elementary mistakes in analyzing the plain language of the SAFE-T Act. But it is undeniable that its article is riddled with errors and is not a good resource on this topic.
A more helpful legal resource is a recent publication from S.J. Quinney College of Law at the University of Utah titled Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois. There, Professors Cassell and Fowels teamed up to examine Cook County’s Bail Reform Study which had concluded that an increase in pretrial release was accompanied by considerable stability in crime rates. Cassell and Fowles state, “. . . we find that, contrary to the Study’s suggestion of stability, the number of crimes committed by pretrial releasees appears to have significantly increased. Correctly estimated, the number of released defendants charged with committing new crimes increased by about 45% after [Cook County’s 2017 bail reform] implementation. And, more concerning, the number of pretrial releasees charged with new violent crimes increased by about 33%. . . .the percentage of aggravated domestic violence prosecutions that prosecutors dropped increased from 56% before [Cook County’s 2017 bail reform] to 70% after. A reasonable inference is that the increase in dropped cases resulted from batterers more frequently obtaining pretrial release and intimidating their victims into not pursuing charges at trial.” 2 (Emphasis added.)
In sum: as lawyers we have a responsibility to read the Act and apply the basic tenets of statutory construction. Once such an approach is applied, the plain language of the Act shows major problems. The discretion of judges to detain is unquestionably limited in many important cases, even where the defendant poses a demonstrable risk to the public. Based on this and other issues, a wholesale reconsideration of this law is fully appropriate. At the very least, significant amendments to this law that are necessary that prevent the worst outcomes.
Thankfully, even at this time of tension and disagreement, there is an opportunity to take positive steps forward. With courageous leadership, I truly believe that a reform of our cash bail system can be accomplished that does not put our communities at risk. I welcome the opportunity to discuss this important public safety issue further with you as we approach the SAFE-T Act’s January 1, 2023 effective date.
In the meantime, I remain committed to accurately informing the public and working toward meaningful changes to the Act prior to implementation.
THOMAS A. HAINE
MADISON COUNTY, ILLINOIS