The short answer is no. The necessity of posting cash money to bail someone out no longer exists in Chicago or anywhere else in Illinois. This is the result of the SAFE-T Act, which is an acronym for The Safety, Accountability, Fairness and Equity-Today Act. It has caused a major shift in criminal law within the State of Illinois but has been widely misunderstood. Many believe that there are now criminal charges within the State of Illinois for which you cannot be arrested. Others have suggested that certain serious crimes are not eligible for pre-trial detention since they are not specifically mentioned in the act. But what is the real, practical impact of The Act on the criminal justice system?
Pre-Trial Release Before the Safe-T Act
It is important to understand from the outset that the SAFE-T Act only changes one specific area of criminal law; how those who are accused of a crime are dealt with before trial. To understand the changes, it is helpful to first understand what the law was prior to The SAFE-T Act. Prior to its implementation, those who were charged with certain crimes would see a Judge for a bond hearing. The judge would then hear arguments from the state and defense regarding what amount of bail they thought appropriate. The judge would then set bail at whatever amount was deemed to be sufficient to ensure the defendant’s return to court pending trial. If that defendant was able to post that amount of bail, then they were freed from pre-trial custody subject to conditions of bond that may or may not be imposed. Thus, the only way to be released after being arrested and having a bond amount set was to pay the bail amount.
Pre-trial Release After the Safe-T Act
Under the SAFE-T Act, the use of cash bond has been eliminated. Instead, the legislature has provided that certain named criminal and traffic offenses and categories of offenses are eligible for pre-trial detainer. That means that the prosecutor can choose to pursue detention (keeping you in jail during your pending case) if they choose to on such cases. The prosecutor/ State’s Attorney is not required to request detention and even if they do seek to keep you in jail, it doesn’t necessarily mean that the Judge will agree to do so.
Under this system, if a defendant is detained or held in custody pending trial, no amount of money will open the doors of the jail for pre-trial release. The stated purpose of the act was to level the playing field for all persons accused of an offense.
Now, under the new system, pre-trial release can never be determined by the wealth or lack thereof, of a criminal defendant. Instead, a judge will now consider a number of factors concerning whether a defendant should be granted pre-trial release. These factors can be found at 725 ILCS 5/110-6.1.
What Offenses are Eligible for Pre-Trial Detention?
The Illinois legislature seems to have reserved the possibility of pre-trial detention for those offenses which can be considered the most serious. For many of those charged with a crime in Illinois though, it is likely that the crime they’re accused of is not an enumerated (listed) felony offense or one of the very few eligible misdemeanor offenses eligible for pre-trial.
The list of crimes and categories of crimes for which the State’s Attorney may choose to seek detention includes the following offenses. For each of these offenses, the State’s Attorney must also convince the Judge that the Defendant poses a real, present threat to the safety of others in the community in order to keep them in custody. The list includes:
- Non-Forcible Felonies for which imprisonment would be required if convicted
- Forcible Felonies including burglary, murder, armed robbery, home invasion, and certain sexual assault offenses
- Aggravated Stalking or Stalking
- Order of Protection Violation
- Aggravated Domestic Battery or Domestic Battery
- Sex related offenses excluding
- Public indecency
- Adultery
- Fornication
- Bigamy
- Prostitution
- Solicitation
- Obscenity
- Patronizing a Prostitute
- Aggravated Discharge of a Silencer equipped Firearm or Machine Gun
- Aggravated Discharge of a Firearm
- Armed Habitual Criminal
- Reckless Discharge of a Firearm
- Sale, Transfer or Manufacture of Certain Bullets and Shells
- Unlawful Delivery or Sale of Firearms
- Unlawful Sale of Firearms by Liquor Licensee
- Trafficking of Firearms
- Unlawful Delivery or Sale of Firearms at a School
- Unlawful Purchase of Firearms
- Gunrunning
- Involuntary Servitude
- Involuntary Sexual Servitude of a Minor
- Human Trafficking
- Unlawful Possession of a Weapon in a Department of
- Corrections Building
- Aggravated Unlawful Use of a Weapon
- Aggravated Possession of a Stolen Firearm
- Reckless Homicide
- Involuntary Manslaughter
- Residential Burglary
- Child Abduction
- Felony Child Endangerment
- Hate Crime
- Aggravated Unlawful Restraint
- Aggravated Battery with a Deadly Weapon
- Threatening a Public Official
- Animal Torture, Aggravated Cruelty and Cruel
- Treatment of Animals
- Aggravated DUI
- by a School Bus Driver with Passengers
- which caused Great Bodily Harm
- which caused Death
- after Previous Reckless Homicide
- which caused Harm to a Child under 16
- Anyone Charged with Attempting to Commit any of the Above-listed Crimes
What is the Process if Charged with a Crime?
Once you are charged with a crime, the initial process is not that different. If you are charged with an offense that is not one of the enumerated detainable crimes mentioned above, there is a good chance that you will be released directly from the police station. If you are charged with a detainable offense though, you will most likely be transported to be seen by a Judge who will then determine whether you should be granted pre-trial release. If the State’s Attorney of the county you are charged in determines that you are eligible to be detained and they wish to request that the Judge keep you in custody, then they must sign a verified petition asking that the judge detain you. If not, you will be released and may be given conditions that you must follow to remain free prior to trial.
How Does a Detention Hearing Work?
If it is determined that you are eligible to be held in custody (pre-trial detainer), then the judge will conduct a hearing. If charged with a felony, at this hearing the State must prove to the satisfaction of the judge that it is likely you committed the crime you are charged with. They must also prove that you are an actual danger to a specific person or the community in general. Finally, they must also show that no conditions the court can place on you, should you be released, would be sufficient to ensure the safety of the community or the person you are a danger to.
In addition, if you are charged with a class 3 or greater felony, the State may allege that regardless of whether you pose a risk to others or the community, there exists a risk that you may not come back to court if released. If the State can prove there is a risk that you may flee, the judge can still detain you. In such circumstances, the State must still prove that it is likely you committed the charged offense and that no conditions the court might impose would prevent you from not coming back to court.
Speak to an Experienced Legal Team
So, what does the SAFE-T Act mean to you if charged with a crime? Essentially, unless you are charged with a very serious crime the chances are you will not be detained. The number of defendant’s being held before trial has been greatly reduced since the implementation of the SAFE-T Act. Questions? Give us a call at (312) 644-0444 and let the highly experienced attorneys here at Mitchell S. Sexner & Associates LLC give you a free consultation about your case.