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SAFE-T Act amendment pops

Wednesday, Nov 30, 2022 - Posted by Rich Miller

* HB1095, Senate Amendment 1.

…Adding… The new trespassing language

Law enforcement shall issue a citation in lieu of custodial arrest, upon proper identification, for those accused of any offense that is not a felony or Class A misdemeanor unless (i) a law enforcement officer reasonably believes the accused poses a threat to the community or any person, (ii) a custodial arrest is necessary because the criminal activity persists after the issuance of a citation traffic and Class B and C criminal misdemeanor offenses, or of petty and business offenses, who pose no obvious threat to the community or any person, or (iii) the accused has an who have no obvious medical or mental health issue issues that poses pose a risk to the accused’s their own safety. 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 Those released on citation shall be scheduled into court within 21 days.

Seems reasonable.

…Adding… New language on what happens to people in jail on January 1. The so-called “Purge Law”

On or after January 1, 2023, any person, not subject to subsection (b), who remains in pretrial detention and is eligible for detention under Section 110-6.1 shall be entitled to a hearing according to the following schedule:

(1) For persons charged with offenses under paragraphs (1) through (7) of subsection (a) of Section 110-6.1, the hearing shall be held within 90 days of the person’s motion for reconsideration of pretrial release conditions.

(2) For persons charged with offenses under paragraph(8) of subsection (a) of Section 110-6.1, the hearing shall be held within 60 days of the person’s motion for econsideration of pretrial release conditions.

(3) For persons charged with all other offenses not listed in subsection (a) of Section 110-6.1, the hearing shall be held within 7 days of the person’s motion for reconsideration of pretrial release conditions.

That gives the state’s attorneys time to prepare. Section 110-6.1 is here.

…Adding… Cleanup of the constitutional requirement for bail

Pretrial release. “Pretrial release” has the meaning ascribed to bail in Section 9 of Article I of the Illinois Constitution where the sureties provided are nonmonetary in nature that is non-monetary.

* More

(b) At all pretrial hearings, the prosecution shall have the burden to prove by clear and convincing evidence that any condition of release is necessary. Additional conditions of release, including those highlighted above, shall be set only when it is determined that they are necessary to assure the defendant’s appearance in court, assure the defendant does not commit any criminal offense, and complies with all conditions of pretrial release.

(c) When it is alleged that pretrial release should be denied to a person upon the grounds that the person presents 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, the burden of proof of such allegations shall be upon the State Detention only shall be imposed when it is determined that the defendant poses a specific, real and present threat to a person, or has a high likelihood of willful flight. If the court deems that the defendant is to be released on personal recognizance, the court may require that a written admonishment be signed by the defendant requiring that he or she must comply with the provisions of Section 110-12 of this Code regarding any change in his or her address. The defendant may be released on his or her own recognizance upon signature.The defendant’s address shall at all times remain a matter of public record with the clerk of the court. A failure to appear as required by such recognizance shall constitute an offense subject to the penalty provided in Section 32-10 of the Criminal Code of 2012 for violation of the conditions of pretrial release.

       

17 Comments
  1. - BCOSEC - Wednesday, Nov 30, 22 @ 7:53 am:

    Read through this fast, major amendment, with many, many things to unpack.


  2. - Google Is Your Friend - Wednesday, Nov 30, 22 @ 8:13 am:

    ==That gives the state’s attorneys time to prepare==

    Some (me) would say they’ve had almost two years to prepare.


  3. - Chicagonk - Wednesday, Nov 30, 22 @ 8:40 am:

    They were right when they said it would be a tweak. We will see which side is right in six months when the effects of the law start to become apparent.


  4. - Bobby G - Wednesday, Nov 30, 22 @ 8:51 am:

    In the “purge law” section I don’t see a paragraph 8. Also, looks like it’s “persons” who can seek reconsideration of bond and not the State. So if people are currently on cash bail on deniable offenses, the State does not seem to be given the right to ask for denial of bail.


  5. - Bobby G - Wednesday, Nov 30, 22 @ 9:04 am:

    Also, the legislature’s attempt to modify by statute the Illinois constitution without a constitutional amendment remains legally dubious.


  6. - Rich Miller - Wednesday, Nov 30, 22 @ 9:08 am:

    ===modify by statute the Illinois constitution===

    Cash is not explicitly mentioned with bail in the IL constitution. And by definition, bail does not necessarily require cash https://openjurist.org/law-dictionary/bail


  7. - Payback - Wednesday, Nov 30, 22 @ 9:53 am:

    Re. trespassing charges, does anyone know who provided or promoted the language in Peters’ original bill to downgrade the charge to a citation from an arrest?


  8. - Three Dimensional Checkers - Wednesday, Nov 30, 22 @ 10:02 am:

    The last provision seems more pro-defendant thatn before. It takes the decision of whether to detainee an arrestee out of judges hands and places the burden on the State. Why did Judge Evans make this dangerousness algorithm if it was just going to be the State’s burden to prove an arrestee is a danger to the community?


  9. - H-W - Wednesday, Nov 30, 22 @ 10:15 am:

    Consistent with Google Is Your Friend:

    I would suggest there has been nothing in the past year, nor any barrier in the coming month, that would have prevented State’s Attorneys from having been working on this all along.

    Knowing the change was coming, the legal system could have already been working on this, except for the fact that many politicized this to the point that they made themselves believe the law would be scrapped.

    Silly politicians, believing their own spin.

    The problem before us is primarily one of failure to plan, and obstruction. It is much less a matter of clarification.


  10. - Grandpaw - Wednesday, Nov 30, 22 @ 10:25 am:

    Maybe I’m using the wrong words in my searches, but I’m just wondering what happens to people with active cases that did post bail. Do they go to their courthouses and request it back? That would require a LOT of cash on hand, I would think.


  11. - JoanP - Wednesday, Nov 30, 22 @ 10:28 am:

    = It takes the decision of whether to detainee an arrestee out of judges hands and places the burden on the State. =

    No, it doesn’t. The decision remains in the judges’ hands. (Heck, if it were in the prosecutors’ hands, everybody would be detained.) But the burden of proof is on the State. In other words, they must provide the court with sufficient evidence to warrant detention.

    And why shouldn’t the burden be on the State? They have the burden of proof at trial. They’re the ones trying to lock someone up. They’re the ones claiming the person should be detained.


  12. - Guzzlepot - Wednesday, Nov 30, 22 @ 10:43 am:

    @Grandpaw

    Nobody knows what is going to happen to the people who posted cash bond and are currently out on bond. I think each county and courtroom is going to handle it differently until we get guidance from he legislature or the Illinois Supreme Court.


  13. - Three Dimensional Checkers - Wednesday, Nov 30, 22 @ 10:57 am:

    ===The decision remains in the judges’ hands.===

    Not in the same way. Before, the judges could look at their own evidence and this dangerousness algorithm they developed to decide whether to detain an arrestee. As I said, what is the use of this algorithm now assuming this passes? In what other cases does a judge create evidence to assist the State in meeting the State’s evidentiary burden?

    What I suspect is that the judges do not want responsibility for arrestees that go on to commit crimes after they are released. If this passes, the next time some arrestee murders or shoots someone after an arrest, the judges could say “not my fault. The state never met its burden to detainee the arrestee. Go blame the State for these crimes.”


  14. - Anonymous - Wednesday, Nov 30, 22 @ 11:10 am:

    @Guzzlepot

    Thank you.


  15. - JoanP - Wednesday, Nov 30, 22 @ 12:03 pm:

    = the judges could look at their own evidence and this dangerousness algorithm they developed to decide whether to detain an arrestee. =

    Judges do not have “their own evidence”. They have the evidence presented to them by the parties.


  16. - H-W - Wednesday, Nov 30, 22 @ 12:07 pm:

    In the not too distant past, law was premised on the rule of parsimony.

    Today it seems, everyone wants to come up with a thousand reasons why we should not adopt the most straightforward interpretation of laws - interpretations that make sense.

    What will happen to those who are currently released on bond or currently bailed out of jail?

    The rule of parsimony would suggest these people will be allowed to petition to have their money returned, or their surety bonds vacated.

    What will happen in the future regarding deciding whether or not a person should be detained prior to trial? The prosecuting (State’s) attorney and the defendants attorney and the judge will meet within 72 hours to make a preliminary decision whether or not their is enough evidence to require the person to be held in custody, just as in the past.

    Creating a lot of contingencies in order to create confusion only serves to debase the rule of law, and the rule of parsimony.

    I am sure the courts will be fine, and fewer people will be detained going forward, with and without these “clarifications” that are only necessary because we have politicized the legal system (unnecessarily in this case).


  17. - Three Dimensional Checkers - Wednesday, Nov 30, 22 @ 12:44 pm:

    ===Judges do not have “their own evidence”. They have the evidence presented to them by the parties.===

    What is this then?

    https://www.cookcountycourt.org/ABOUT-THE-COURT/Office-of-the-Chief-Judge/Probation-Departments/Probation-for-Adults/Adult-Probation-Department/Pretrial-Services


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