Prosecutors challenge SAFE-T Act eliminating cash bail as thousands sign petition

As questions linger over what the end of cash bail will mean in Illinois, three county state's attorneys are turning to the courts for help, and one state senator has launched an online petition to push for change.

McHenry County State's Attorney Patrick Kenneally this week filed a lawsuit challenging the SAFE-T Act, which outlines changes, including the elimination of cash bail, to the state's justice system. Will County State's Attorney James Glasgow and Kankakee County State's Attorney Jim Rowe filed similar lawsuits earlier this month.

The lawsuits challenge the constitutionality of the SAFE-T Act. They argue that bills should be confined to one subject, that the state constitution provides for a cash bail system, and that the new law violates the Constitution because it limits judicial powers.

More than 10,000 people also have signed an online petition, started by state Sen. Don DeWitte, a St. Charles Republican. The petition demands the repeal of the SAFE-T Act and urges legislators to “write criminal justice reforms that do not jeopardize public safety.”

DeWitte launched the petition after meeting with prosecutors, law enforcement officials and others to discuss the implications of the SAFE-T Act and the start of cashless bail.

Though the petition calls for repealing the act, DeWitte said he doesn't support “full-blown repeal and elimination.” He says he wants lawmakers to work together to address the concerns raised about the legislation.

“People have legitimate concerns, and we need to pump the brakes on implementation so the long list of unintended consequences tied to the act can be addressed,” DeWitte said.

The Safety, Accountability, Fairness and Equity Today (or SAFE-T) Act was a wide-ranging bill backed by the Illinois Legislative Black Caucus in the wake of the May 2020 death of George Floyd in police custody. The bill passed the Senate just before 5 a.m. after an all-day session on Jan. 13, 2021, and was approved by representatives in the House hours later. Gov. J.B. Pritzker signed the legislation on Feb. 22, 2021.

The bill has won support from victims' rights and criminal-justice reform groups who have said it protects victims and forces detention to be based on the seriousness of an offense, not whether a defendant has the resources to post bond.

In recent weeks, prosecutors across the state, including Glasgow and Kane County State's Attorney Jamie Mosser, both Democrats, and DuPage County State's Attorney Robert Berlin, have outlined a host of concerns with the law.

They've argued the law hamstrings a judge's discretion on holding defendants pretrial, removes the ability to hold people charged with certain crimes and leaves questions about what happens to those already in custody and the thousands of outstanding arrest warrants come Jan. 1.

“The legislature did not listen to the experienced prosecutors who know how this stuff is applied in the real world,” said Glasgow, a Will County Democrat who has gone so far as to suggest voters should only support those candidates who will repeal the Act, and that communities will be less safe because of the new law. “You'd almost think that the people who wrote this (law) are deliberately trying to destroy public order.”

Mosser echoed similar concerns.

“It will allow many dangerous people to be released from custody, and it will also bind judges from being able to consider holding certain people,” Mosser said. “At a very minimum, it (the law) needs to be delayed.”

Despite concerns, prosecutors have said they are not opposed to cashless bail and largely believe Illinois' law is fixable. Mosser and other prosecutors point to New Jersey's law as an example of what Illinois should be doing.

Under that law, prosecutors said, all criminal offenses are eligible for pretrial detention, and judges retain their discretion to determine who should remain in custody pending trial.

Supporters of the Illinois law say it helps ensure that the state's most violent defendants are held in custody before trial and that those charged with lesser, nonviolent offenses aren't at risk of being held in county jails because they lack the resources to post bond. They also note judges can still impose restrictions, such as electronic monitoring, on pretrial release and hold violent offenders.

State Sen. Elgie Sims, a Chicago Democrat who sponsored the SAFE-T Act, said those with concerns about the law should work with lawmakers to address them, rather than file lawsuits or start online petitions to repeal it.

“We've spent the last almost two years trying to figure out or engaging in these efforts to roll back the clock,” Sims said of opponents of the law. “Let's move forward together. That's all we've been asking.”

Sims acknowledges there are some things — such as how some of the changes will be funded — that need to be addressed and is confident lawmakers will tackle those issues.

Lake County State's Attorney Eric Rinehart said while he agrees there are some areas of the law that need to be tweaked, he is confident those concerns will be addressed and he continues to prepare for Jan. 1 and the implementation of cashless bail. He also believes the new law will accomplish the task of keeping violent defendants behind bars and protecting victims.

“It's going to be a sea change when it comes to domestic violence,” Rinehart, a Democrat, said. “There will be more individuals held in detention while we make sure the victims are safe.”