SPRINGFIELD, Ill. — Illinois lawmakers returned to the Capitol on Tuesday for the first time since the midterm elections and kicked off a two-week fall veto session that promises to deliver renewed debate over the end of cash bail.
The Pre-Trial Fairness Act, a portion of the SAFE-T Act, abolished the practice of using money bond as a way to determine a criminal defendant's detention status before their day in court. The new policy is scheduled to take effect on Jan. 1, 2023.
"We've always said that we wanted to sort of clarify and make technical changes to make sure that the bill is implemented and works well," Senator Robert Peters (D-Chicago) said. "At the end of the day, I want to make sure that we have the best pretrial system in the entire country. And the way to do that is to make sure that we make some changes this veto session."
Sarah Staudt, the Director of Policy for the Chicago Appleseed Center for Fair Courts, called cash bail "a really irrational system for deciding who's in jail and who's not."
Hundreds of activists plan to stage demonstrations at the Illinois statehouse on Wednesday to push back against some proposals they fear would keep more criminal defendants in jail before their trial.
"The purpose of the act is not just to end money bail, it's to decrease the number of people who are in jail pretrial," Staudt said. "There are versions of trailer bills that have come out that would not decrease incarceration. In fact, they'd increase it."
The changes to the criminal code, which were initially passed on a party-line vote, have come under withering scrutiny during the campaign season. Republican campaigns highlighted perceived dangers in ending of cash bail and labeled it the "purge law."
"The only purge we're seeing right now is some of the leadership," Peters said.
House Minority Leader Jim Durkin, a former prosecutor and vocal critic of the SAFE-T Act, resigned his post as the head of the caucus after Republicans lost five seats in the November midterms.
Did voters buy his campaign message about inherent dangers in ending cash bail?
"No, they didn't," Durkin confessed.
How did House Speaker Chris Welch grade the GOP campaign strategy?
"It was clearly an F," Welch (D-Hillside) said. "It failed, and it was failing from the start. It was never landing any blows."
House Democrats opted to re-elect Welch for a second consecutive term as Speaker after the party won the largest supermajority in Illinois House history since the 1980 cutback amendment reduced the number of legislators by one-third.
"It didn't register," Welch said of the Republican campaign messaging. "Lies and fearmongering never works. Talking to people about their hopes and the change that they can believe in is what they want to hear. And that's what we did."
Did Durkin feel, in retrospect, that he overplayed his hand?
"No, it's reality," he responded. "I'm trying to warn people about exactly what they should expect and what's in this bill."
"We were right on the issues. We were right on the economy. We were right on public safety," Durkin said. "But we lost on election day because of extremism, and extremism as a part of the Trump, part of the (Darren) Bailey narrative."
Democrats and advocates for ending cash bail felt the issue was on voters' minds, and saw the November midterm results as a decisive referendum.
"I think the voters rejected the disinformation," Senator Peters said. "And it showed that the $50 million spent on that disinformation did nothing to move really the voters around the SAFE-T Act."
"Tuesday night's results tell us that the people of Illinois are in support of ending cash bail," Staudt said. "It's really encouraging, and it suggests that people understand that cash bail isn't what keeps us safe. What keeps us safe is having safe and thriving communities and addressing the root causes of crime."
Durkin claimed his input was not welcome in the Democratic-led working group but offered suggestions to modify the law to include pre-trial detention for drug dealers.
Could he pull off a bipartisan compromise on the SAFE-T Act as his final act?
"If that's the case, I would be honored to do so. But I have to be invited to the table," he said.
Durkin claimed the new law as currently written would mean that "a person who's going to be charged with trafficking kilos of heroin and fentanyl would not qualify for a detention hearing."
"Sometimes there are firearms," he acknowledged. "Whether [prosecutors] can tie that up to upgrade... but if they don't, just the sheer fact that someone is trafficking, or someone is delivering a huge drug deal, the only way they can be detained [is] if they are deemed to be a flight risk."
Senator Steve McClure (R-Springfield), a former prosecutor, suggested the law should expand to give judges discretion whether to detain a defendant before their trial on all felony charges.
"Maybe they're not going to use it. Maybe it's not a dangerous person," McClure said. "But people that are dangerous have to be able to be held at the judge's discretion. Nonviolent offenders I'm not really concerned about."
McClure acknowledged some benefits in ending cash bail.
"Nobody wants to be responsible for holding a person in jail simply because they can't afford to get out," he said. "Some people should not be in jail pretrial. A lot of retail thefts, a lot of simple misdemeanor, should not be in jail before trial. However, there's a lot of people committing a lot of crimes in our state that are repeat offenders. In those instances, really, in all cases, the judge has to have discretion to hold that person in jail pretrial."
"Let's narrow that down," Peters responded. "Let's focus on violence and a threat to other people, and we can have that conversation."
Peters suggested a definition that broad that allows pre-trial detention for all felony charges could disproportionately impact people of color.
"You could go to certain counties in Illinois, and you have something that broad and it could create a tiered system, something that I think about can be comparable to the 'Green Book,' or Jim Crow," he said. "I would actually want to narrow that not to have that situation happen."
"There's some racism in the criminal legal system," Peters said. "Illinois, more than any other state, passed historic Civil Rights legislation that people should be proud of. This, to me, as a piece of legislation is comparable to civil rights laws that happened in the 50s and 60s."
Welch predicted a bill will advance through the House before lawmakers go home for the holidays. He claimed the House would "absolutely" adopt new changes before the end of cash bail begins on New Year's Day.
"When we left here in April of this year, I appointed a group to specifically look at the SAFE-T Act. And they've been meeting with all of the advocates, including State's Attorneys. The State's Attorneys, before they started engaging in lies and fearmongering during the campaign, knew that we were at the table continuing to work on this bill. And I do believe we're going to get a fourth trailer bill done that continues to clarify some of that language that everyone admits is confusing."