Kane County State's Attorney on Revisions to SAFE-T Act

Revisions to the Safety, Accountability, Fairness, Equity – Today Act or SAFE-T Act were recently signed into law by the Governor. The amendments to the criminal justice reform bill were meant to address portions of the act State’s Attorneys across Illinois sought to clarify or change before the law takes effect on January 1, 2023. Kane County State’s Attorney Jamie Mosser has been at the forefront in the debate over the merits and flaws of the measure. Kane County Connects asked for her opinion on the latest adjustments to the SAFE-T Act.

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In January 2021, state lawmakers approved sweeping legislation affecting our criminal justice system. While the concepts behind this reform are very much needed, the way the law was drafted concerned those of us in law enforcement. The SAFE-T Act was set to go into effect in three phases and prior to each deadline for implementation, members of law enforcement negotiated with advocates of the bill to make changes to it. This has resulted in three successful trailer bills that have served to keep the intent of the reform in tact which is to make our community safer.

As State’s Attorney, I understand the need for true criminal justice reform. In Kane County, I have created and expanded diversion programs addressing the root causes of the criminal justice problem. When I first read the SAFE-T Act, I was extremely disappointed and penned an objection letter that led me to partner with other State’s Attorneys negotiating for change. I joined with Champaign County State’s Attorney Julia Rietz, DuPage County State’s Attorney Bob Berlin, and Peoria County State’s Attorney Jodi Hoos in arguing for revisions alongside the Chiefs of Police Association, the Sheriff’s Association, the Fraternal Order of Police and the Director of the Illinois State Police. We spent hours upon hours arguing for the changes we believed were necessary.

The New Year will usher in the total elimination of cash bail, also known as the Pre-Trial Fairness Act. The elimination of cash bail is one of the reforms that I was in favor of. People who are not a danger should not remain in jail because they cannot afford their bond. Additionally, dangerous individuals should not be able to pay their way out of jail. States like New Jersey have successfully eliminated cash bail which resulted in lower crime rates and fewer arrests. States like New York did the same but it resulted in higher rates of crime. What is the difference? New Jersey eliminated cash bail but allowed the courts to hold individuals for any crime as long as prosecutors showed the person was either a danger or a flight risk. New York, however, has a detention net which means that only individuals who commit certain crimes could be detained if shown to be a danger or a flight risk.

So why were 100 of the 102 State’s Attorneys in Illinois, including myself, opposed to the Pre-Trial Fairness Act (PFA)? First and foremost, the PFA is modeled after New York which means we have a detention net. There are offenses that, despite facts showing the individual is a danger, are non-detainable. Secondly, it is a completely unfunded mandate. The decision to implement the PFA was made in Springfield by State Legislators but it was expected that the Counties would pay for the personnel and technology needed for this. Third, there were a multitude of other issues with how the measure was drafted that raised significant concerns over whether or not the law could even be implemented.

This most recent trailer bill fixed several of the issues we raised. The list of detainable offenses grew significantly but not completely. There are still offenses like unlawful restraint that cannot be detained. For example, a wife is mad at her husband for infidelity. He is trying to leave the home and she prevents him from doing so – not physically, just blocking him from leaving. She threatens to kill him if he leaves. He calls the police and she is arrested. This is an offense that cannot be detained, even with the threat to kill.

The trailer bill also fixed a portion of the issue with the 90-day requirement. The 90-day statute required a defendant in custody to be tried for that crime within 90 days or the individual was released. The trailer bill allows prosecutors to ask for an extension for reasons like scientific testing as currently allowed under the speedy trial statue. While it is a better fix, it certainly does not take into consideration other reasons for continuances.

Regarding victims of domestic violence, the PFA requires the State’s Attorney’s Office to call victims in anticipation of conditions of release or detention hearings to advise them of their right to attend the hearing and/or get a protective order. While we want to help victims in any possible way, having to communicate with a victim within 24 hours after a violent offense has occurred could be more traumatic than it is helpful. Additionally, all State’s Attorney’s Offices now have to have extra trauma informed personnel to be able to accommodate these requirements. During our negotiations, we advocated for funding for all of our judicial partners to cover the cost of these mandates including the SAO, Public Defender, Sheriff, Circuit Clerk, and the Judiciary. Instead, it only created a Public Defender Grant Program which makes this implementation very one-sided.

While it may seem that I only have negative things to say about the trailer bill, there were items that will help significantly. First, it eliminated an overly burdensome discovery requirement for detention hearings. Second, it limited the defendant’s ability to compel a victim to attend a detention hearing to only issues related to the detention itself. A defendant would not be able to use the court to further traumatize the victim by making them relive the crime within 24-48 hours after the incident occurred. Lastly, it cleared up the issue of whether the statute was to be applied retroactively or proactively by making it electable for the State or the defendant.

The sign of any good negotiation results in neither side being completely happy. Both law enforcement and the advocates who wrote this bill walked away from the table hoping for more. Only time will tell if additional changes are needed and how that will happen. What is clear is that Illinois has many people who will continue to fight for the safety of our communities. While I am thrilled that we are moving towards criminal justice reform, I remain cautious about the implementation of the PFA even in its current state. All of our judicial partners are struggling to hire people in a market where the pool of workers is limited. With the most recent revisions to the SAFE-T Act signed into law December 6, those required to implement it on January 1, 2023, are scrambling to make last minute adjustments to forms and procedures.

With that being said, we in Kane County will do all that we can to make this work and to keep our community safe. If the law is not working, we will advocate for more change. No matter what, come January 1, 2023, we will be ready to the best of our ability.