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Below is an analysis of the flaws found in the SAFE-T Act that if left unaddressed will leave the general public unnecessarily exposed to danger and without recourse to ensure those charged with crimes appear in court.
1. Pursuant to the SAFE-T Act, with the elimination of cash bail, the court may only deny a defendant pre-trial release when he/she is charged with a non-probationable forcible felony, or the offenses enumerated under the Act;
Under the SAFE-T Act certain dangerous individuals with lengthy violent criminal backgrounds cannot be held in custody while awaiting trial.
E.g., an individual formerly convicted of murder and armed robbery who later commits another robbery, cannot be kept in custody prior to trial because a robbery conviction does not require a sentence of imprisonment.
E.g., an individual previously convicted of murder and aggravated criminal sexual assault who later commits an aggravated battery, cannot be remanded to pre-trial custody because an aggravated battery conviction does not require a sentence of imprisonment.
Recommendation(s) Amend the statute to state: Upon verified petition by the State, the court shall hold a hearing and MAY deny a defendant pre-trial release only if the defendant is charged with a Class 3 felony or greater and it is alleged the defendant’s pretrial release poses a threat to any person or the community.
It’s important to note that under our recommended revision, a judge is not mandated to detain anyone. This revision merely allows judges the discretion to detain defendants charged with Class 3 felonies and greater when the defendant’s criminal background requires such consideration.
2. In defining when pre-trial detention should be imposed, the SAFE-T Act interchangeably uses the phrases “when a defendant poses a threat to any person or the community” and “when a defendant poses a specific, real and present threat to a person”, and “poses a danger to a specific person or persons”, and “poses a threat to a specifically identifiable person or persons”, and “poses a specific, imminent threat of serious physical harm to an identifiable person or persons.” These phrases are very inconsistent. Furthermore, requiring the prosecutor to prove a “specific, real and present threat to a specific person or persons,” is impractical.
Recommendation(s)
Consistently use the phrase “when a defendant poses a threat to any person or the community.”
3. Historically, a person committed first-degree murder when he/she killed a person without lawful justification and in performing the acts which caused the death; (3) he or she attempted or committed a forcible felony other than second-degree murder.
Historically, if three individuals committed a home invasion and the homeowner victim shot and killed one of the invaders, the two surviving invaders could have been charged and convicted of Felony Murder.
Historically, if three individuals committed a bank robbery, engaged in a gunfight with the police, and a police officer killed one of the robbers, the surviving robbers could have been charged and convicted of Felony Murder.
Pursuant to the SAFE-T Act, a person commits first-degree murder when he/she kills a person without lawful justification and in performing the acts which cause the death:
(3) he or she, acting alone or with one or more PARTICIPANTS, commits or attempts to commit a forcible felony other than second-degree murder, and in the course of or in the furtherance of such crime or flight therefrom, he or she or another PARTICIPANT causes the death of a person.
Under the SAFE-T Act, the surviving offenders in both examples cited above cannot be charged or convicted of Felony Murder because a PARTICIPANT of the forcible felony did not cause the death, a third party (police officer or victim) caused the death.
In December 2021, gang member Travis Andrews fired a shot down a street at a rival gang member. When the rival gang member returned fire, the rival struck innocent victim Melinda Crump and killed her. Although Travis Andrews set in motion the chain of events resulting in Crump’s death, under the SAFE-T Act Andrews cannot be charged with Crump’s murder under the Felony Murder theory. Pursuant to the SAFE-T Act, because Crump wasn’t killed by Travis Andrews or a PARTICIPANT with Andrews, Andrews escapes culpability in Crump’s murder.
Recommendation(s)
Reinstate the original text and interpretation of the Felony Murder Rule. Individuals that decide to commit forcible felonies know they are setting in motion a chain of events that may lead to the death or great bodily harm of someone. Those individuals should be held accountable for the death of ANYONE (including the death of a codefendant) caused by their dangerous actions. Travis Andrews should never escape accountability for the death of Melinda Crump.
In the alternative, you may consider creating an exception to the Felony Murder Rule that does not allow for the Rule to be applied in cases where a codefendant in the forcible felony is killed. In all other instances resulting in a death during the commission of a felony, the Rule should apply.
4. Historically, if a defendant charged with a felony or Class A misdemeanor failed to attend a required court appearance or failed to comply with any condition of pre-trial release, the judge issued a warrant for the defendant’s arrest.
Pursuant to the SAFE-T Act, rather than issuing a warrant for a non-appearance or failure to comply, the court must:
Issue an order to show cause as to why the defendant shall not be subject to revocation of pre-trial release, or for sanctions.
A certified copy of the order shall be served upon the person at least 48 hours in advance of the scheduled hearing.
If the defendant fails to appear at the rule to show cause hearing, the judge may issue a warrant for the defendant’s arrest.
The contents of the warrant may modify any previously imposed conditions placed on the defendant, rather than revoking pre-trial release.
A failure to appear shall not be recorded until the defendant fails to appear at the hearing to show cause. For the purpose of any risk assessment or future evaluation of risk of willful flight or risk of failure to appear, a non-appearance in court cured by an appearance at the hearing to show cause shall not be considered as evidence of future likelihood appearance in court.
Judges, prosecutors, and sheriffs should not be forced to endure the above-described exercise on behalf of defendants that fail to appear or fail to comply.
E.g., a defendant could miss 10 court dates but always show up for the rule to show cause hearings and the court cannot consider the prior 10 absences when the defendant fails to appear for the 11th time. Non-appearance should always be relevant in determining pre-trial release.
Recommendation(s) Give judges the discretion to issue arrest warrants for defendants charged with Felonies or Class A Misdemeanors who fail to comply or appear.
Give judges the discretion to consider how many times a defendant has missed a court appearance or failed to comply to any condition of pre-trial release.
Give judges the discretion to deny or revoke pre-trial release when the defendant has demonstrated disregard of compliance to the conditions of his/her release.
5. The SAFE-T Act defines ‘Willful Flight’ as “planning or attempting to intentionally evade prosecution by concealing oneself. Simple past-non-appearance in court alone is not evidence of future intent to evade prosecution.”
E.g., a defendant could miss 10 court dates but always show up for the rule to show cause hearings and the court cannot consider the prior 10 absences when the defendant fails to appear for the 11th time. Non-appearance should always be relevant in determining pre-trial release.
Recommendation(s) Remove the SAFE-T definition of willful flight for the reasons stated above.
6. The SAFE-T Act mandates that when a defendant is sentenced for a Class 3 or 4 felony and has less than 4 months remaining on his sentence, the defendant CANNOT be confined to prison but instead, to home monitoring.
This requirement could have the unintended consequence of convicted violent offenders not serving any prison time.
E.g., if a violent defendant is charged with aggravated battery (a Class 3 felony), is placed on pre-trial electronic monitoring for 2 years, is tried, convicted, and sentenced to 52 months in prison, this defendant will never serve a day in prison.
Recommendation(s) Eliminate the 4-month clemency mandate provision.
7. The SAFE-T Act requires that anyone placed on home confinement, with or without electronic monitoring, be provided with open movement spread out over no fewer than two days per week. It also requires that in order for someone to be guilty of an escape or violation of a condition of an electronic monitoring or home detention program, the person must remain in violation for at least 48 hours.
There have been numerous reported cases of individuals on home confinement and electronic monitoring who have committed serious crimes while they were supposed to be confined. With these incredibly lenient conditions, why bother placing anyone on home confinement or electronic monitoring? If rapists, carjackers, and robbers are allowed to leave their homes for 48 hours with no repercussions, why bother to waste money on the ankle bracelets?
Recommendation(s) Eliminate the above-cited lenient conditions related to home confinement and electronic monitoring.
8. The SAFE-T Act amends the definition of ‘habitual criminal’ to limit the inclusion of a defendant’s first offense if the offense occurred “when the defendant [was] over the age of 21 years and was convicted of a Class 1 or 2 forcible felony.” This definition change could create unintended consequences.
E.g., if an 18-year-old defendant commits a robbery and receives probation, then commits a residential burglary at the age of 24 and is sentenced to 4 years IDOC and then is convicted of residential burglary again at the age of 32, that defendant is a habitual offender and should be sentenced to Class X time.
Recommendation(s) Adopt the original definition of habitual Criminal for the reason stated above.
9. In the section entitled ‘Detention’, the SAFE-T Act states, “If the court enters an order for the detention of the defendant, the defendant shall be brought to trial on the offense for which he is detained within 90 days after the date on which the order of detention was ordered. If the defendant is not brought to trial within the 90-day period required by the preceding sentence, HE SHALL NOT BE DENIED PRE-TRIAL RELEASE. In computing the 90-day period, the court shall omit any period of delay resulting from a continuance granted at the request of the defendant.”
This section does not consider the reality that many defendants have various felony cases pending that were charged at different times. For instance, a defendant may be charged with an armed robbery and granted pretrial release. This same defendant may later be charged with another armed robbery and get detained on the second armed robbery. If the State elects to prosecute the initial armed robbery first, the defendant will be released after 90 days because the state elected on the first armed robbery.
Additionally, this section does not account for “By Agreement” dates. Prosecutors and defense attorneys regularly agree on dates for discovery, plea negotiations, and other important issues. This section does not subtract “By Agreement” dates for the 90-day requirement.
Recommendation(s) Eliminate this section from the statute for the reasons stated above.
10. The SAFE-T Act fails to require a Defendant to receive court permission prior to leaving the State.
When charged with a felony, an individual should not be allowed to travel anywhere in the country or world for obvious reasons without the court’s permission. Historically, if a defendant was granted pre-trial release, as a condition of the release, the defendant could not leave the State of Illinois without the permission of the court.
Recommendation(s) Re-insert the condition that a defendant on pre-trial release cannot leave the State without permission from the court.
11. Regarding Petitions to Detain, the SAFE-T Act states, “Only one petition may be filed under this section.”
There is no explanation provided for the meaning of this sentence. One may interpret this to mean if the state files a petition to detain and the court denies the petition, and later, the defendant is re-arrested for a non-probationable forcible felony, the state would be precluded from filing a second motion to detain.
Recommendation(s) Change this provision to allow the State to file additional Petitions to Detain, if circumstances change (i.e., the defendant is involved in another incident that results in a Class A Misdemeanor or Felony charge).
12. The SAFE-T Act requires that defendants receive custodial credit for each day on home confinement or electronic monitoring.
E,g., Pursuant to this requirement, a career criminal who has been charged and convicted of robbery may be immediately released from any type of detention because he was on home detention for two years as he awaited trial.
Recommendation(s)
Remove this requirement from the bill for the reasons stated above.
13. Under the SAFE-T Act, the transcript of a pre-trial detention hearing is NOT admissible during the State’s case-in-chief at trial.
E.g., if during the pre-trial detention hearing, the defendant turned to the victim’s family and apologized for killing the victim, or during the pre-trial detention hearing the defendant testified to a false alibi, the state would be precluded from using that testimony in the state’s case in chief.
Recommendation(s)
Omit this language from the statute for the reasons stated above.
14. Historically, prisoners could earn up to 180 days of earned service credit to their sentences. HB 3653 provides up to 365 days of earned service credit for prisoners serving sentences of 5 years and greater. Victims of crime expect truth in sentencing. Victims of crime expect that when someone puts a gun to their head, robs them, and is sentenced to 6 years in prison, that defendant will serve 6 years in prison. Granting 365 days of good time for no reason undercuts the entire expectation and concept of truth in sentencing.
Recommendation(s) Eliminate the allowance of 365 days of earned service credit.
15. The SAFE-T Act reduces the terms of mandatory supervised release (parole) on Class X offenses from 3 years to 18 months; reduces the mandatory supervised release on Class 1 and 2 felonies from 2 years to 12 months; prohibits mandatory supervised release on Class 3 and 4 cases unless the Prisoner Review Board determines it is necessary based on a risk assessment.
Murderers, rapists, armed robbers, home invaders, and other dangerous offenders should remain on parole for 3 years to maintain some oversight of these individuals. Residential burglars, kidnappers, car thieves should remain on parole for at least 2 years to maintain some oversight over these individuals,
Recommendation(s) The extended terms for mandatory supervised release (parole) should be retained as they were prior to the enactment of the SAFE-T Act.