Illinois criminal justice reformers won a historic legislative victory in 2021. But the law they passed isn’t a done deal.

State Rep. Justin Slaughter, center, holds up his fist while wearing a black glove after the SAFE-T Act passed the Illinois House.

Justin L. Fowler/The State Journal-Register via AP

Illinois State Rep. Justin Slaughter, D-Chicago, center, holds up his fist in celebration after the SAFE-T Act passed the Illinois House, Jan. 13, 2021.

When the Illinois Safety, Accountability, Fairness and Equity-Today Act was introduced in the Illinois General Assembly earlier this year, the community organizers and Black state lawmakers behind the reform package hailed it as a major step toward tackling the police violence and mass incarceration that have ravaged the Black community.

“This is a moment that presents a tremendous opportunity for us to fundamentally change the way we look at criminal justice in this state,” State Sen. Elgie Sims Jr., D-Chicago, declared on the Illinois Senate floor after presenting the final 764-page bill in the early morning hours of Jan 13. “This is a big, bold, complex, transformational agenda.”

The bill, known as the SAFE-T Act, changed a controversial rule that let prosecutors charge people with murder when their accomplices were killed by a third party while committing a forcible felony; established a new process to decertify abusive cops; required body cameras for all Illinois cops; and limited when police can use deadly force, among other changes.

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The Pretrial Fairness Act was the legislation’s centerpiece. It is set to end the money bond system by 2023 and limit pretrial detention to people accused of specific felonies, including domestic battery and murder, and only if the judge determines that their release would pose a specific physical threat to someone else. Proponents say the bill will vastly decrease the number of people who are jailed pretrial and ensure that no one is incarcerated simply because they can’t afford bond.

But law enforcement groups, police unions, and Republican lawmakers have characterized the pretrial reform and other SAFE-T Act measures as a danger to public safety and an attack on police. They successfully lobbied to remove reforms from the final bill that would have eliminated qualified immunity for cops and barred police union contract negotiators from bargaining over discipline.

Those same forces have continued attacking the SAFE-T Act in the months since Gov. J.B. Pritzker signed the bill into law, and they were successful at amending parts of the bill through a so-called “trailer bill.” Opponents and supporters of the law expect the effort to roll back the law to continue into 2022, an election year, and beyond.

After Pritzker signed the bill in February, State Sen. Robert Peters, D-Chicago, one of the bill’s sponsors, remembers feeling hopeful about the positive impact the law could have but also daunted about “the fight ahead.”

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“​​I knew that people who support the status quo were going to do all they can to undermine our work,” Peters said in an interview with Injustice Watch.

The resurgence of the Black Lives Matter movement in 2020 helped pressure cities and states to enact reforms in the months that followed. But the challenges facing the SAFE-T Act highlight how policies meant to tackle racial injustice, police violence, and mass incarceration risk being watered down before implementation. In the past year, support for the Black Lives Matter movement has fallen, and trust in law enforcement has increased, especially among white Americans, according to several recent polls. At the same time, the number of reported murders in Chicago hit a 20-year high, fueling tough-on-crime rhetoric that the SAFE-T Act’s supporters describe as a tactic meant to sway moderate Democrats and more members of the public to side with the opposition.

The elimination of cash bail is scheduled to go into effect in January 2023, leaving ample time for opponents to undermine the law before it is fully implemented. Other states that have attempted to eliminate or reduce the use of cash bail, including New York, have seen those efforts rolled back by subsequent legislation. Cook County State’s Attorney Kim Foxx, a SAFE-T Act supporter, emphasized that the law’s long lead time was necessary for prosecutors, judges, and other system actors to prepare to implement its provisions.

The “flip side” is that it also gives “those who seek to alter what we’re doing time to get creative,” Foxx said.

Activists also know that they still have to protect the SAFE-T Act from changes that could dampen their historic effort to improve police accountability and reduce the number of people in county jails, among other goals.

In an open letter to the members of the General Assembly, published Oct 18. as the legislature was about to start its two-week fall veto session, more than 70 nonprofit and community organizations urged legislators who supported the act to hold the line against opponents who have used “fear-mongering that is not based on evidence or fact.”

Richard Wallace, founder of Equity and Transformation, one of the organizations that signed the letter, said the groups wanted to remind lawmakers “that we still got your back.”

A second trailer bill that the Illinois Association of Chiefs of Police hoped would pass, introduced by State Rep. Justin Slaughter, D-Chicago, was approved by the Illinois Senate last week. The bill would have moved back implementation time lines for various reforms; established a review committee to reconsider decisions to decertify cops accused of disciplinary violations; and provided decertified officers more avenues to appeal decisions that denied their requests for recertification, among other adjustments. But the bill was never called for a vote in the House.

Still, it’s likely that additional trailer bills will be introduced by lawmakers — and negotiated with opponents of the SAFE-T Act — when the General Assembly returns from their recess in January.

“There has been pushback on this bill since the day it was passed,” Wallace said. “Those voices aren’t going to go anywhere.”

“Are you open to changing that?”

As soon as law enforcement groups saw a draft of the SAFE-T Act in January, they began meeting with the bill’s sponsors in Springfield.

They complained, among other issues, about not having time to read the bill before the vote, which resulted in language making it “difficult to implement or operationalize on the street,” said Ed Wojcicki, executive director of the Illinois Association of Chiefs of Police.

“We had a whole list of things and said, ‘Are you open to changing this? Are you open to changing that?’ And their answer was yes,” Wojcicki said.

After the bill was signed into law, Wojcicki’s group, as part of a coalition that included the Illinois Sheriffs’ Association and several police unions, met with the bill’s sponsors and the civil rights groups that backed the law to discuss the changes they wanted to make. These conversations resulted in a trailer bill in June that accommodated some of the groups’ requests.

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Slaughter, one of the bill’s chief sponsors, said these follow-up discussions were important to incorporate “a practitioner’s perspective” on how to implement various reforms, such as new training requirements, the statewide body camera mandate, and the process for decertifying police officers. But he said he also understands concerns from advocates that those same conversations about how to implement the law provide critics an opportunity to undermine reforms.

“There is consistent, constant opposition from the law enforcement community throughout history in opposing criminal justice reform,” he said in an interview with Injustice Watch.

Some of the changes made in the trailer bill included allowing officers to review body camera footage before filing an incident report in most instances, delaying the implementation of some of the new training requirements, and changing the circumstances under which an officer can use deadly force to prevent escape. The original law said police officers could only use deadly force to prevent escape “when a suspect has just committed a forcible felony or other dangerous act.” The trailer bill removed the word “just,” which law enforcement officials said was “undefined.”

The Chicago Appleseed Center for Fair Courts, an advocacy group, said the new language suggests that officers are always justified in using deadly force to prevent escape as long as they think someone has committed a forcible felony. Stephanie Agnew, the group’s communications coordinator, wrote that the trailer bill “significantly weakened” the SAFE-T Act’s limits on use of force and other police accountability provisions.

Both supporters and opponents of the SAFE-T Act told Injustice Watch that they expect discussions to continue this fall and into next year about additional trailer bills, including some that may seek to change one of the central components of the law: the elimination of cash bail.

Holding the line on cash bail

For activists who spent years laying the groundwork for the elimination of cash bail in Illinois, the threat of a backlash has always been present. There’s an oft-repeated cycle when it comes to criminal justice reform in which a single incident of an individual case garners media attention, leading opponents of reform to argue that the policies have made people less safe.

“That is how we built mass incarceration in this country, by taking unfortunate individual circumstances that are not representative of the whole and then building policy around worst case scenarios,” said Sharlyn Grace, former executive director of the Chicago Community Bond Fund and one of the co-authors of the Pretrial Fairness Act.

That cycle has manifested in response to nearly every major bond reform or pretrial reform that has happened in the county, Grace said in an interview with Injustice Watch over the summer.

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In New York, lawmakers passed a bill in 2019 eliminating cash bail for a range of offenses. Within days after the law went into effect, police unions, media outlets, and elected officials began attacking the bill for allegedly leading to an uptick in crime. The original law was quickly amended to make more crimes eligible for cash bail and to give judges more discretion when deciding whether to release someone pretrial.

New Jersey and California also ended the use of cash bail in most instances, only to replace it with risk assessment procedures that critics say could expand the disproportionate incarceration of communities of color because they give local judges discretion to keep people detained. New Jersey’s algorithm was intended to predict whether a person will engage in new criminal activity or will fail to appear in court, but it drew concern from civil rights groups who argued that such algorithms are inherently influenced by structural racism and flawed.

Some politicians and police officials in Illinois have already started using the “soft-on-crime” rhetoric that helped tank the New York bail reform law.

Throughout the legislative process, some legislators touted the bill as “anti-police” and “dangerous,” citing an increase in murders and shootings in Chicago as a reason to curtail pretrial reforms.

State Sen. Steve McClure, R-Jacksonville, argued during the final debate on the bill that its supporters were “trying to do whatever (they) can to make sure that people charged with horrendous crimes can get out of jail without having to post bond.”

Chicago Mayor Lori Lightfoot and Police Chief David Brown, who declined to be interviewed for this story, have regularly blamed pretrial release for the rise in gun violence in Chicago, even though their own advisers admitted that there was no evidence to support the claims.

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After the SAFE-T Act, what’s next for criminal justice reform in Illinois?

Speakers at Injustice Watch’s virtual town hall said the work has just begun in reforming the criminal justice system.

Slaughter described Chicago violence, particularly in the Black community, as part of law enforcement’s political playbook “to somehow turn these reforms on their head and say it’s actually making communities less safe … when in fact we know that violence is really more so a result of the lack of investment in our community.”

He criticized law enforcement entities for only showing up to speak in Springfield when they are given a chance to oppose criminal justice reform or support “law and order, lock-’em-up-and-throw-away-the-key policies.”

“My point is that officers are on the ground, they see the social equity, racial equity issues playing out before their very eyes,” he said. “Yet they don’t testify in committees having to do with improving education, they don’t testify in committees about bringing more robust human services, they don’t talk about community investment.”

He and Peters said they are hoping to counter the opposition with messaging focused on, as Slaughter put it, “where those failed policies have gotten us.”

Lawmakers and law enforcement groups are tight-lipped about the changes that they may propose to the Pretrial Fairness Act. But supporters of the law are concerned that they could try to limit the list of offenses that the act renders nondetainable to exclude charges such as drug possession and shoplifting.

Other threats to the law may come through the expansion of punitive pretrial supervision or surveillance. Grace argued that measures such as electronic monitoring and regular check-ins with pretrial officers set people up to fail, adding that any conditions of release given by the court should be voluntary and purely supportive.

Ultimately, the success or failure of the SAFE-T Act hinges not only on whether new legislation is passed to roll it back but also on how system actors put the law’s reforms into practice.

“A lot of the burden for the reform is on the judges and the district attorneys,” said Twyla Blackmond Larnell, an assistant professor of political science at Loyola University Chicago. That means that implementation could look vastly different in Cook County than in other parts of the state or from one pretrial courtroom to another.

A task force created by the Illinois Supreme Court last year, composed of judges, prosecutors, public defenders, and legislators, is currently discussing how to make sure pretrial policies and risk assessment tools are used uniformly across counties.

The law includes the creation of a Pretrial Practices Data Oversight Board that will collect and analyze data regarding pretrial practices in circuit courts across the state to help hold counties accountable to the law and monitor its implementation.

“There are going to be interest groups who are not happy, who are going to be in opposition, but at the end of the day, the votes were there, and the will of the people have spoken,” Foxx said. “So right now it is all about, this is the law. How do we make sure that we implement it in a way that meets its intended purposes? This is all about implementation, not rewinding the clock.”

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