December 16, 2022
The Illinois General Assembly passed a series of amendments during veto session in early December to the SAFE-T (Safety, Accountability, Fairness and Equity – Today) Act, the criminal justice omnibus law enacted in early 2021. The SAFE-T Act (Public Act 101-0652) was originally passed by the Illinois General Assembly in January 2021 and signed by Governor Pritzker in February 2021. For details of the provisions included in the SAFE-T Act, see the Civic Federation’s summary. Two subsequent rounds of amendments were passed in June 2021 and January 2022 (to learn more about those amendments, read on further below).
The most recent amendments were passed by the Illinois House and Senate on Dec. 1, 2022, and signed by Governor Pritzker on Dec. 6, 2022 into Public Act 102-1104. The vast majority of the amendments were part of House Bill 1095, Senate Amendment 1. A few additional changes were included in House Bill 1095, Senate Amendment 2. This blog post takes a look at changes made in these amendments, which together comprise P.A. 102-1104. The amendments are extensive, so the following summary highlights some of the key components. For additional details on the pretrial components, see the flowcharts and implementation guidance documents on the Illinois Supreme Court Pretrial Implementation Task Force website.
December 2022 Veto Session Amendments to the SAFE-T Act
P.A. 102-1104 defines “pretrial release” as having the meaning ascribed to bail in Section 9 of Article I of the Illinois Constitution where the sureties provided are nonmonetary in nature. (725 ILCS 5/102-6) It also adds language stating that all persons charged with an offense shall be eligible for pretrial release before conviction, and at all pretrial hearings, the prosecution shall have the burden to prove by clear and convincing evidence that any condition of release is necessary. (725 ILCS 5/102-2)
Determining Conditions of Release
The amendments standardize language throughout to consistently apply the following standard for pretrial detention based on whether a defendant presents a safety threat: “Real and present threat to the safety of any person or the community, based on the specific, articulable facts of the case.”
The amendments make several changes to the procedures for the court to determine conditions of pretrial release:
- It allows the court to take into account additional factors when setting release conditions for those charged with violent offenses related to domestic and intimate partner violence such as domestic battery, violations of an order of protection and stalking. (725 ILCS5/110-5(a)(6) and (7))
- When using a risk assessment tool to aid its determination of appropriate conditions of release, the defendant's counsel shall be provided with the information and scoring system of the risk assessment tool used to arrive at the determination and the defendant has the right to challenge the validity of a risk assessment tool. (725 ILCS 110-5(b)
- The conditions of release imposed shall be the least restrictive conditions or combination of conditions necessary to reasonably ensure the appearance of the defendant as required or the safety of any other person or persons or the community. (725 ILCS 5/110-5(c))
- If a person remains in pretrial detention 48 hours after being ordered released, the court must hold a hearing to determine the reason for continued detention. (725 ILCS 5/110-5(e))
- At each subsequent appearance of the defendant before the court, the judge must find that the current conditions imposed are necessary to reasonably ensure the appearance of the defendant as required, the safety of any other person and the compliance of the defendant with all the conditions of pretrial release. (725 ILCS 5/110-5(f-5))
- The State and defendants may appeal court orders imposing conditions of pretrial release. (725 ILCS 5/110-5(k))
- Decisions regarding release, conditions of release, and detention prior to trial must be individualized, and no single factor or standard may be used exclusively to make a condition or detention decision. (725 ILCS 5/110-6.1(f)(7))
- Risk assessment tools cannot not be used as the sole basis to deny pretrial release. (725 ILCS 5/110-6.1(f)(7))
- Conditions cannot mandate rehabilitative services unless directly tied to the risk of pretrial misconduct. Additionally, conditions of supervision cannot include punitive measures such as community service work or restitution. (725 ILCS 5/110-10(b))
- The defendant must receive verbal and written notification of conditions of pretrial release and future court dates, including the date, time and location of court. (725 ILCS 5/110-10(b)
The amendment adds a 48-hour requirement, which specifies that after a person is arrested for an offense for which pretrial release may be denied, they must be taken to appear before a judge within 48 hours (725 ILCS 5/109-1).
Procedures for Person Arrested with an Outstanding Warrant in Another County
The amendments in P.A. 102-1104 change the provisions dealing with people arrested for a new offense but who have an outstanding warrant in another county (725 ILCS 5/109-2). A requirement to bring the defendant back to the county with the outstanding warrant within 72 hours is removed, and instead the county that arrested the person will hold the person and bring them before a judge for a detention hearing. After the court in the arresting county has determined whether the person will be released or detained, the arresting county must contact the sheriff in the county with the outstanding warrant to notify them of the arrest. Within five days of a detention order, the county with the outstanding warrant must either transport the defendant back to that county or the warrant will be quashed. If no action is taken within five days, the defendant will be released from custody on the warrant, and the judge in the arresting county will set conditions of release and release them for an appearance before the court named in the warrant. The county that issued the warrant may hold the hearing remotely. These provisions only apply to warrants issued within the State of Illinois.
Options for Summons Rather than Warrants in Violations of Release Conditions
Language in 725 ILCS 5/110-3 is revised regarding options for warrant alternatives when a person on pretrial release fails to comply with a condition of release, with the goal of relying on summonses rather than warrants to ensure the appearance of the defendant in court whenever possible. Upon failure to comply with any condition of pretrial release, the court may, on its own motion or upon motion from the State, issue a summons or warrant for the person’s arrest. If the person appears in court on the date assigned or within 48 hours of being served the summons, whichever is later, then they shall not be recorded in the official docket as having failed to appear on the initial missed court date. However, if a person fails to appear in court on the date listed on the summons, the court may issue a warrant for the person’s arrest. The amendment also prohibits the court from using a failure to appear in court that was resolved by an appearance in response to a summons as evidence of future likelihood of appearance in court.
Revocation of Pretrial Release
If someone is released on a felony or class A misdemeanor, and the person commits a new felony or class A misdemeanor while on pretrial release, they are subject to revocation of pretrial release and entitled to a hearing. The revocation hearing must occur within 72 hours of the filing of the State's petition or the court's motion for revocation. The defendant is entitled to representation by defense counsel and an opportunity to be heard regarding the violation and evidence in mitigation. If a defendant was released on a Class B or C misdemeanor or any lower offense, and is charged with a felony or a Class A misdemeanor while on pretrial release, the pretrial release may not be revoked but the court may impose sanctions. However, the state can file a petition seeking detention in any eligible circumstance. (725 ILCS 5/110-6)
Offenses Eligible for Pretrial Detention
The list of offenses that are detainable pretrial (725 ILCS 5/110-6.1) has been expanded to include the following:
- All non-forcible felonies that are not eligible for probation, if the defendant’s release poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case;
- All forcible felonies, if the defendant’s release poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case. This includes: treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, armed robbery, aggravated robbery, robbery, burglary where there is use of force against another person, residential burglary, home invasion, vehicular invasion, aggravated arson, arson, aggravated kidnapping, kidnapping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement or any other felony which involves the threat of or infliction of great bodily harm or permanent disability or disfigurement;
- The list of detainable offenses under 725 ILCS 5/110-6.1(a)(6) (which already included several gun-related offenses) is expanded to include: reckless homicide, involuntary manslaughter, residential burglary, child abduction, child endangerment, hate crimes, aggravated unlawful restraint, threatening a public official and aggravated battery with a deadly weapon other than by discharge of a firearm;
- A new section (725 ILCS 5/110-6.1(a)(6.5)) is added to include several offenses related to aggravated driving under the influence and animal cruelty; and
- Any attempt to commit the aforementioned charges if the defendant's pretrial release poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case (725 ILCS 5/110-6.1(a)(7)).
Certain sex offenses are removed from the list of detainable offenses: prostitution, solicitation of a sexual act, patronizing a prostitute and obscenity.
For non-forcible, non-probationable felonies, certain drug offenses under subsection (b) of Section 407 of the Illinois Controlled Substances Act can only be detained if the court proves that the defendant meets all of the criteria pertaining to both public safety risk and a risk of not appearing in court. (725 ILCS 5/110-6.1(e)(4))
The amendments also require the court to make a written finding summarizing the court's reasons for the decision to deny the defendant pretrial release, including why less restrictive conditions would not avoid a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case, or prevent the defendant's willful flight from prosecution. (725 ILCS 5/110-6.1(h))
“Willful flight” is defined as intentional conduct with a purpose to thwart the judicial process to avoid prosecution. Isolated instances of nonappearance in court alone are not evidence of the risk of willful flight. Reoccurrence and patterns of intentional conduct to evade prosecution, along with any affirmative steps to communicate or remedy any such missed court date, may be considered as factors in assessing future intent to evade prosecution. The amendment also removes language that previously said “simple past non-appearance in court alone is not evidence of future intent to evade prosecution.” (725 ILCS 5/110-1(f))
Custodial Credit for GPS Monitoring
The court may give custodial credit to a defendant for each day the defendant was subjected to GPS monitoring without home confinement or electronic monitoring without home confinement. (725 ILCS 110-5(h))
Escape from Electronic Monitoring
The amendment removes language from the SAFE-T Act that previously required someone to be in violation of electronic monitoring for 48 hours in order for it to be considered an escape and instead states that a person “knowingly escapes or leaves from the geographic boundaries of an electronic monitoring or home detention program with the intent to evade prosecution.” Anyone charged with a felony who escapes according to this revised criterion is guilty of a class 3 felony, and anyone charged with a misdemeanor who escapes is guilty of a class B misdemeanor. (730 ILCS 5/5-8A-4.1)
New language is also added to 730 ILCS 5/5-8A-4.15 to state that anyone charged with a felony or misdemeanor who knowingly and intentionally violates a condition of electronic monitoring or home detention without notification to the proper authority is subject to sanctions; and a person who violates a condition of the electronic monitoring or home detention program by knowingly and intentionally removing, disabling, destroying or circumventing the operation of an approved electronic monitoring device shall be subject to penalties for escape under Section 5-8A-4.1.
Remote Court Appearances
Language included in the SAFE-T Act previously required a defendant to appear in court in person. However, P.A. 102-1104 incorporates new language that allows a defendant to appear remotely via the use of a two-way audio-visual communication system if the person in custody waives the right to be present physically in court, if the court determines that the physical health and safety of any person necessary to the proceedings would be endangered by appearing in court, or if the chief judge of the circuit orders use of that system due to operational challenges in conducting the hearing in person. The chief judge is required to document the operational challenges and create a plan to address the challenges through reasonable efforts, which must be presented and approved by the Administrative Office of the Illinois Courts every six months.
Amendments in P.A. 102-1104 also add provisions for the defense counsel to be able to consult with the defendant during remote hearings. In hearings conducted via a two-way audio-visual communication system, the consultation may not be recorded and must be undertaken in consistency with constitutional protections.
Release from Law Enforcement Custody with Citation
One of the major points of contention with the SAFE-T Act was a provision regarding release and citation by law enforcement. The SAFE-T Act included a requirement for law enforcement to issue a citation in lieu of custodial arrest for traffic offenses, Class B and C misdemeanor offenses, or petty and business offenses in which the person poses no obvious threat to the community or another person and has no medical or mental health issues that pose a risk to their own safety. Those released on citation were to be scheduled into court within 21 days. SAFE-T Act opponents took issue with this provision, arguing that it restricted police officers’ ability to remove and arrest people accused of criminal trespassing. While the original language in the SAFE-T Act still allowed police to make an arrest if the person posed a public safety risk, it was viewed as constraining.
The amendment to this section of statute changes the language to clarify that law enforcement must issue a citation for those accused of any offense that is not a felony or Class A misdemeanor, unless the officer reasonably believes the accused poses a threat to the community or any person; an arrest is necessary because the criminal activity persists after the issuance of a citation; or the accused has an obvious medical or mental health issue that poses a risk to their safety. Additional language was added to clarify that: “Nothing in this Section requires arrest in the case of Class A misdemeanor and felony offenses, or otherwise limits existing law enforcement discretion to decline to effect a custodial arrest.” However, the amendment removes language regarding law enforcement issuing the person a summons to appear in court within 21 days.
Procedures for Existing Pretrial Cases as of January 1, 2023
P.A. 102-1104 clarifies questions about whether the SAFE-T Act is retroactive or not, and what should happen to people who are either in custody or released on cash bail on the effective date of January 1, 2023, through the addition of a new section, 725 ILCS 5/110-7.5.
Anyone on pretrial release as of January 1, 2023, will be allowed to remain on pretrial release. However, the State’s Attorney can file a verified petition for detention or a petition for revocation or sanctions.
Anyone in pretrial custody on January 1, 2023, is entitled to a release hearing according to the following schedule:
- Hearings for defendants charged with any of the detainable offenses based on posing a threat to public safety must be held within 90 days of the defense counsel’s motion for reconsideration of pretrial release conditions;
- Hearings for defendants considered to be flight risks must be heard within 60 days of the motion for reconsideration of release conditions; and
- Hearings for defendants charged with non-detainable offenses must be held within seven days of the motion for reconsideration.
Regarding cash bail payments, any bail deposited as of January 1, 2023 will go through the existing process that circuit court clerks have for processing of bail payments.
Creation of a Public Defender Grant Program
The amendments add a new section to the Counties Code (55 ILCS 5/3-4014) to create a public defender grant program established by the Administrative Office of the Illinois Courts, subject to appropriation, for counties with a population of three million or less (this effectively excludes Cook County). The grant program has the purpose of training and hiring attorneys on contract to assist the county public defender in pretrial detention hearings. Additionally, the amendment creates a new state special purpose fund, the Public Defender Fund, to provide funding to counties for public defenders and public defender services.
The amendments also expand 55 ILCS 5/3-4013 to add language requiring the Public Defender Quality Defense Task Force to provide recommendations to the General Assembly and Governor on legislation to provide for an effective statewide public defender system by December 31, 2023.
Body Worn Cameras
The amendment makes several changes to the statutes dealing with police body-worn camera requirements:
- Extends the implementation deadline for body-worn cameras by police for municipalities or counties with a population between 100,000-500,000 from January 1, 2023, to July 1, 2023. (50 ILCS 706/10-15(b-5)
- Requires recordings made with an officer-worn body camera to be kept after the 90-day storage period if the recording officer believes it may have evidentiary value in a criminal prosecution. (50 ILCS 706/10-20)
- Adds language to definition of "Community caretaking function" to clarify that this excludes law enforcement-related encounters or activities. (50 ILCS 706/10-10)
- Adds language to definition of "Law enforcement-related encounters or activities" to clarify that this does not include participating in training in a classroom setting or is only in the presence of another law enforcement officer or officers while not performing any other law enforcement-related activity. (50 ILCS 706/10-10)
- Allows grants under this Section to be used to offset data storage costs for officer-worn body cameras. (50 ILCS 707/10)
Mandatory Supervised Release
The amendments in P.A. 102-1104 make some changes regarding mandatory supervised release: For class 3 and 4 felonies, 6 months of mandatory supervised release will be imposed (rather than no mandatory supervised release). The Prisoner Review Board must conduct a discretionary discharge review no later than 45 days after the onset of the term of mandatory supervised release. (730 ILCS 5/5-8-1(d)(3))
Previous Amendments to the SAFE-T Act
House Bill 1095 was actually the third round of changes to the SAFE-T Act.
The first trailer bill, HB3443, Senate Floor Amendment 5, was signed by the Governor on June 25, 2021 into Public Act 102-0028. P.A. 102-0028 made several changes, primarily to the policing provisions in the SAFE-T Act, as well as pushing back the effective dates for certain provisions. This trailer bill extended the effective dates for several provisions: police training, requirements for free movement for people on pretrial electronic monitoring, mandatory supervised release provisions, residency requirements, access to phone calls for people taken into police custody, and the elimination of cash bail. It also made several clarifications regarding police-worn body cameras, crowd control tactics, police misconduct, use of deadly force and duty to intervene, and clarified several definitions including obstruction of a peace officer, chokehold, mental health crisis and grenade launcher. For a summary of this bill, click here.
The second trailer bill, HB3512 Senate Amendment 1, was signed by the Governor on January 7, 2022, into Public Act 102-0694. P.A. 102-0694 made further changes and clarifications to the policing provisions of the SAFE-T Act, including the police officer certification and decertification process, communication rights for detainees in police custody and body camera footage labeling. It also amended the Pretrial Services Act to enable the Illinois Supreme Court to facilitate a statewide pretrial services framework to serve counties with no existing pretrial services program. The Illinois Supreme Court then created the Office of Statewide Pretrial Services in August 2021, which set up pretrial services in 68 counties.
Summary of Provisions in Illinois House Bill 3653: Criminal Justice Omnibus Bill
Correcting Misinformation about Illinois Pretrial Reforms: What the Pretrial Fairness Act Does and Does Not Do