Social media post misleads about pretrial detention under Illinois Safe-T Act

Social media posts are sounding the alarm about a change in Illinois law that they suggest will radically undermine public safety.

"Things are gonna get crazy on January, 1, 2023," read a Facebook post on Sept. 9. "The state of Illinois passed a bill that will go into effect on January 1, 2023, these following crimes would be considered nondetainable. Burglary, robbery, arson, kidnapping, DUI offenses, even DUI involving a fatality, most drug offenses, and even 2nd degree murder."

But before Illinoisans start packing their bags, we advise taking a closer look at the law these posts are talking about.

In February 2021, Gov. J.B. Pritzker signed into law a sweeping 764-page criminal justice bill called the Safety, Accountability, Fairness and Equity Act, or Safe-T Act. The law makes changes to police and court practices and detainee rights, among other things.

Part of that law, known as the Pretrial Fairness Act, will change bond court practices across the state. It would eliminate cash bail, or money paid by a defendant to get out of jail while awaiting trial. That change goes into effect Jan. 1 and will make Illinois the first state to completely do away with cash bail. 

But these posts mislead by suggesting that people charged with the crimes listed cannot be detained under any circumstance.

The Facebook post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)

We saw similar claims here, here, here and here.

The new law’s proponents say that eliminating cash bail will make the criminal justice system fairer. Defendants often remain incarcerated before trial because they just can’t afford their bail, which is 10 percent of the total amount in Illinois. 

"There are too many people that have been held not because they’re a risk, but simply because they could not afford monetary bail, and not only does that affect that person in custody but also their family," said Jordan Abudayyeh, press secretary for Pritzker. 

"At the same time, victim’s rights groups have long been concerned that dangerous individuals have been released simply because they could afford to pay bail. Public safety is best addressed by focusing on risk rather than money."

Pritzker tweeted on Sept. 13, seeking to dispel what he said were myths about the law, including whether it prohibits pretrial detention for certain crimes.

Others, including some elected officials and prosecutors, say they worry that the change will threaten public safety, keeping dangerous criminals on the streets and law enforcement and prosecutors from doing their jobs effectively.

A 34-person commission — including prosecutors, sheriffs and judges — advised legislators on the law before it passed, Sharlyn Grace, a senior policy advisor with the Cook County Public Defender Office, told Block Club Chicago.

The law says that "all persons charged with an offense shall be eligible for pretrial release before conviction."

But "eligible" doesn’t mean every person will be granted pretrial release. Prosecutors can petition the court if they wish to keep a suspect detained, and a judge will approve or deny the continued detention at a hearing, typically held within 48 hours of the suspect’s first court appearance. 

Those who are released still can be subject to supervision, such as electronic monitoring. 

"There is no such thing as a ‘nondetainable’ offense," Abudayyeh said. "Any alleged offender could be detained because of a risk of flight or because they are a repeat offender, and those charged with the most serious crimes — which are nonprobationable — can also be detained for risk to public safety."

The law lists two scenarios in which a prosecutor could seek pretrial detention of a suspect: when a person is a risk to public safety or a willful flight risk. 

It goes into greater detail about the offenses detainable under the law, including the charge of a forcible felony, in which someone convicted cannot be sentenced to probation or conditional release. It also states that the defendant must pose "a specific, real and present threat to any person or the community." 

David Olson, a criminal justice and criminology professor at Loyola University Chicago, said under the law’s public safety provision, there are three broad categories: 

• forcible felonies not eligible for probation, such as first-degree murder, home invasion and armed robbery

• firearm possession offenses

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• domestic battery, including violating an order of protection

"Then there are a broader group of offenses that can be detained under the willful flight consideration," said Olson.

Sonja Starr, a law and criminology professor at the University of Chicago, said that "in general, Illinois courts will be able to detain defendants who pose a real, identifiable risk to the safety of any person, or have a ‘high likelihood of willful flight,’ if other security conditions won't suffice to protect against those dangers.’

The Facebook post is misleading, Olson said. There are different classes of felonies for many crimes, so people who commit several of the crimes listed in the post could be detained for public safety considerations, depending on the charge. 

Olson cited robbery, burglary and battery as examples.

The post says people who commit robbery can’t be detained. But armed robbery is a forcible felony, not eligible for probation, "and therefore is detention-eligible," Olson said. Simple robbery is a Class 2 felony that is not detainable under the public safety consideration, but someone could be detained under the willful flight provision.

Likewise, Olson said, residential burglary — a Class 1 felony that is not eligible for probation — is eligible for detention under the public safety consideration, but nonresidential burglary, a Class 3 felony, would be eligible for detention only under the flight-risk provision.

Olson also said aggravated battery with a firearm is a Class X felony, the most serious category of crimes other than first-degree murder, and not eligible for probation. Domestic battery suspects could also be held under the law’s public safety consideration. Other battery cases would be eligible only under the willful flight provision, Olson said.

Any crime categorized as Class 3 or higher could be considered for detention if the suspect is a flight risk. All the crimes listed in the Facebook post could meet that criteria, depending on the details.

Starr said the risk assessment will depend on what offense is charged, but added that for the most serious offenses, "detention appears to be presumptive, unless the defendant can show that evidence against them is weak."

A Facebook post claimed that "burglary, robbery, arson, kidnapping, DUI offenses, DUI involving a fatality, most drug offenses, and even 2nd degree murder" will be nondetainable crimes in Illinois starting in January, when a new law goes into effect, eliminating cash bail.

The law going into effect Jan. 1 does not list specific crimes that are "nondetainable." It eliminates cash bail and says that prosecutors must petition a judge and make their case to hold a defendant in jail pretrial, either because of public safety or flight risk.

All of the crimes listed in the Facebook post could be considered for detention. We rate this claim False.