Illinois’ cashless bond starts next month. McHenry County attorneys, judges and police weigh in

Enforcing Illinois’ SAFE-T Act when it takes effect next month, which will mean an end to cash bail throughout the state, may be a challenge, but McHenry County officials this week vowed to uphold the new law.

Dozens of prosecutors, defense attorneys, judges, court personnel and other members of law enforcement met at the McHenry County Sheriff’s Office this week to discuss the Pretrial Fairness Act, which is the provision that will end cash bail beginning Monday, Sept. 18.

McHenry County Chief Judge Michael Chmiel described the new law as “novel” and challenging, but said, “We need to and we will do our best” to implement it.

There is some uneasiness in law enforcement ... It’s a learning curve.”

—  McHenry County Sheriff Robb Tadelman, speaking about the new Pretrial Fairness Act

Illinois lawmakers passed the SAFE-T Act – which included an end to cash bail as a key component – in 2021 in the wake of the George Floyd police killing in Minnesota. Its passage prompted lawsuits seeking to halt or overturn the law.

It had been set to take effect Jan. 1, but the Illinois Supreme Court delayed the law’s implementation. Last month, the state’s high court upheld the law and ordered it to take effect on Sept. 18.

The new law “eliminates cash for bail, states a presumption of release, requires meaningful proceedings” and mandates many specifics, Chmiel said.

The most significant challenge seemed to be meeting the timeline from the point of an arrest to getting the defendant in front of a judge. An “initial” court appearance must be held within 48 hours of a person’s arrest, according to Chmiel and a handout at the meeting.

Chmiel said that a person who is arrested during regular courthouse hours will have an “Initial Appearance Court or IAC” at 1:15 p.m. Monday through Friday, 10 a.m. on Saturdays and certain court holidays, and 8 a.m. on days following days with no IAC. For example, this could be the Friday after Thanksgiving, he said.

Should cause be found to hold a “detention hearing” when prosecutors would argue to hold someone in the county jail, the law allows for a detention hearing to be continued for 24 hours in cases involving misdemeanors and Class 4 felonies. Other types of felony cases could be continued for 48 hours, Chmiel said.

An alleged victim or complaining witness would be allowed to attend and participate in the initial appearance.

“(The Act) is silent beyond this point,” the handout states. “It is logical that if every party involved in the case ... agrees to a continuance beyond these points in time [for good cause shown and placed in the record] the same should be considered. Otherwise, being mindful of the tight timelines, the judge who is requested to continue the detention hearing may not be able to do so.”

When someone is arrested, complaints against them must be filed electronically “as soon as possible” and a public defender must be appointed “upon arrival” at the McHenry County Jail. Indigence will be determined later, according to the handout.

Even though there are guidelines in place, this schedule still could become difficult to meet depending on various circumstances such as a late night or early morning arrest, weekend or holiday arrests, Chmiel and McHenry County Sheriff Robb Tadelman acknowledged.

Tadelman said he foresees some “hurdles” for law enforcement when out on the streets and answering calls, but they are being addressed.

“There is some uneasiness in law enforcement,” he said referring to the requirement of getting a defendant in front of a judge within the required timeline for the initial appearance.

Tadelman said he has other concerns including the ability to petition an alleged crime victim in a timely manner before the initial court appearance.

“It’s a learning curve,” he said. “We want to be good partners in this process and know how to do it and do it right.”

Orders of protection may be requested and should be considered at a defendant’s initial court appearance, according to the handout. An initial appearance also marks the time when prosecutors could file and argue a petition to detain a defendant, unless continued in accordance with pretrial fairness act, according to the handout.

Defense attorneys and prosecutors also will argue whether a person is a flight risk and whether they have a history of not showing up to court. They also will consider the seriousness of the alleged offense, whether the person is a danger to one person or the community and address requests for orders of protection.

“The bottom line is we want defendants to return to court,” Judge Tiffany Davis said. “The state must present clear and convincing evidence (to hold a defendant).”

McHenry County State’s Attorney Patrick Kenneally, who has been vocal in his opposition to the new law, said that determining whether someone charged with domestic battery should be released is “very tricky. He said during Tuesday’s meeting that one of the “scariest calls” he thinks about getting in the middle of the night is regarding someone granted pre-trial bond for a domestic battery committing a murder.

He said such measures used to keep track of a defendant out on pre-trial release such as electric monitoring, curfews and home detention are “just not effective.”

In a piece published in the Northwest Herald on Oct. 6, 2022, Kenneally listed detainable and non-detainable offenses under the new law.

“Defendants charged with detainable offenses are eligible for detention and include: 1) violent, highest class felonies (e.g. murder, attempted murder, terrorism), 2) crimes against family members and stalking crimes; 3) sex crimes; and 4) certain gun offenses. Detainable offenses account for less than 10% of all felony offenses on the books in Illinois,” Kenneally wrote.

Since then, legislators added more offenses that are detainable including concealment of a homicidal death, DUI/third time, cruelty to animals, hate crime and threatening a public official, Kenneally said Wednesday in a phone interview.

Still, the new law has a presumption against detaining someone pretrial. So just because an offense is eligible, prosecutors still will need to argue for detention, Kenneally said.

Non-detainable offenses, some added in recent months, include crimes such as second-degree murder, DUI causing death, fentanyl delivery, manufacturing methamphetamine, drug-induced homicide, involuntary manslaughter, making a terrorist threat, kidnapping, arson, vehicular hijacking, as well as ggravated battery involving strangulation, or to an elderly person, child, person with a disability, nurse, pregnant person, police officer, EMT judge and taxi driver, merchant or process server.

Other crimes not considered automatically detainable include dismembering a human body, leaving custody/control of a child with a sex offender, child endangerment and child abandonment, Kenneally said.

Under the new law, even if a judge determines the defendant charged with a non-detainable offense is an imminent risk to the community, victims or anyone else, the defendant must be released, Kenneally said.

“It is problematic to base the decision to detain on the name of the offense, as opposed to a judge’s discretion with respect to the risk that person poses,” Kenneally said Wednesday.

McHenry County Public Defender Mark Cook, who also sat with the panel of speakers Tuesday, said the new law is going to make his office “a lot busier.”

Cook, who said he also is concerned with how attorneys will be able to physically meet with defendants in the jail in a timely manner, said his office will need to hire at least two more assistant public defenders to add to the staff of 13 which includes himself.

A meeting is scheduled to be held in October with stakeholders and chiefs of police to review the “proposed roll out.”