Guest columnist Robert Berlin: Judges need discretion over bail for defendants in serious cases

The implementation of the new Safe-T-Act, which will eliminate cash bail on Jan. 1, 2023, has produced passionate arguments on both sides of the issue. As DuPage County state's attorney, I feel it is important that the public understand the law so people can arrive at an informed opinion.

In a bond or detention hearing, judges are presented a synopsis of the charges against a defendant along with their criminal history. Consequently, judges, using their discretion, are truly best positioned to decide whether a person should be detained pretrial.

The Illinois Supreme Court has held that when determining bail, a judge's decision must "balance the right of an accused to be free on bail against the right of the general public to receive reasonable, protective consideration by the courts." The Pretrial Fairness Act however, strips judges of their responsibility to both the defendant and the public by disallowing a judge from considering each case on its own merits and applying the law accordingly.

Under the new Safe-T-Act, entire categories of crime, such as aggravated batteries, robberies, burglaries, hate crimes, aggravated DUIs, drug induced homicides, all drug offenses, including delivery of fentanyl and trafficking cases, are not eligible for detention regardless of the severity of the crime or a person's risk to a specific person or the community, unless prosecutors prove by clear and convincing evidence the person has a "high likelihood of willful flight to avoid prosecution."

The new law defines "willful flight" as "planning or attempting to intentionally evade prosecution by concealing oneself." Under the law, "simple past non-appearance in court alone is not evidence of future intent to evade prosecution."

In these cases, a person's risk to the community is irrelevant. Additionally, in cases involving non-probationable forcible felonies, such as murder and armed robbery, certain gun offenses, sex offenses and domestic violence, judges can order a defendant detained only if prosecutors prove by clear and convincing evidence the defendant "poses a real and present threat to the safety of a specific, identifiable person or persons" or if the defendant has a "high likelihood of willful flight to avoid prosecution."

In 2017, New Jersey moved to a cashless bail system. Unlike Illinois' Safe-T-Act however, New Jersey law allows judges to detain persons for any crime where prosecutors prove by clear and convincing evidence the defendant will not appear in court, the defendant poses a danger to any other person or the community or the defendant will obstruct or attempt to obstruct justice, or threaten, injure, intimidate, or attempt to threaten, injure, or intimidate a prospective witness or juror.

Stakeholders largely agree that New Jersey's law has improved public safety by ensuring that violent people are detained pretrial while those who are not a threat to the community are released.

I, along with other Illinois State's Attorneys, have requested the Illinois General Assembly adopt a statute similar to New Jersey's and continue to allow judges to use their discretion in detention hearings.

Our efforts, however, have been unsuccessful.

The fact is, by determining that certain violent crimes do not qualify for pretrial detention, regardless of a defendant's danger to the community, the Illinois General Assembly has removed judicial discretion from the equation and imposed their own will instead.

• Robert Berlin is state's attorney for DuPage County.