CLAIM: Suspects facing serious charges including second-degree murder, kidnapping, robbery, burglary and arson will no longer be held in custody until trial under a new, first-in-the-nation Illinois law abolishing cash bail statewide.
AP’S ASSESSMENT: False. Judges in Illinois will still have discretion to order suspects for these and other serious crimes held in jail pending trial if they are deemed a threat to public safety or a flight risk. But the new law does impose higher standards to meet those conditions that critics say will make it harder to detain people.
THE FACTS: Social media posts and conservative news outlets have been taking aim at Illinois’ Pretrial Fairness Act, which is scheduled to take effect Jan. 1, distorting how the law will work.
The posts list a range of violent crimes that they say will be considered “non-detainable,” including second-degree murder, kidnapping, robbery, burglary, arson and threatening a public official. The posts also include dire warnings that Chicago and other Illinois communities will soon devolve into a real life version of “The Purge,” a horror movie where all crime — including murder — is allowed on one night a year.“
On January 1, 2023, Illinois will take its place in history when they become the first state to test out ‘The Purge’; in real life,” an Instagram user wrote on Monday. “The ironically named ‘SAFE-T’ act will charge and release criminals without cash bail for 12 now non-detainable offenses. Those offenses include second-degree murder, aggravated battery, arson, drug-induced homicide, kidnapping, burglary, robbery, intimidation, aggravated DUI, aggravated fleeing and eluding, drug offenses and threatening a public official. How do y’all feel about this?”
The post, which includes an image of the menacing masked marauders from the 2013 movie, received more than 80,000 likes as of Thursday.
Illinois’ new law ends cash bail, or payments imposed by a judge, as a condition of a person’s release pending trial. It’s among the most contentious parts of the “Safe-T Act,” a wide ranging criminal justice bill Illinois lawmakers passed in 2021 in response to the nationwide reckoning on racism and police brutality following the deaths of George Floyd, Breonna Taylor and other people of color.
But the law doesn’t create a new classification of “non-detainable” offenses, as critics claim. Suspects can still be jailed pretrial if they are considered a public safety risk or likely to flee to avoid criminal prosecution, said Lauryn Gouldin, a criminal law professor at Syracuse University in New York who studies pretrial detention and bail.
The new law states: “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.”
Additionally, those charged with “forcible felonies” in which probation isn’t an option if convicted can also be detained pretrial under the law following a required court hearing, said Benjamin Ruddell, director of criminal justice policy at the American Civil Liberties Union of Illinois, which was among the local advocacy groups that supported the measure. That includes serious crimes such as first degree murder and criminal sexual assault.
Those arrested for forcible felonies such as second-degree murder, robbery, burglary, arson, kidnaping and aggravated battery — the crimes often cited by opponents of the bill on social media — are not required to have a detention hearing since they are offenses subject to probation. The suspects could, however, still be held in custody until trial if a judge determines they are a threat or flight risk.
“Contrary to the false arguments advanced by opponents, the new pretrial system will not simply release every person arrested for a crime,” Jordan Abudayyeh, a spokesperson for Democratic Gov. J.B. Pritzker, said in an email. “It is a welcome reform to the current practice of releasing people who can pay the bond with minimal regard for the threat they may pose to survivors.”
Still, the new law does impose higher standards for determining who is considered a public threat or a flight risk, and critics are concerned it will make it nearly impossible to detain a suspect ahead of trial.
Prosecutors, for example, will now have to show a defendant poses a threat to a “specific, identifiable person or persons,” rather than a more general threat to the community or class of persons, or they’d have to show that the person has a “high likelihood of willful flight.”
“This is a much higher burden than commonly used today in courts throughout the country,” says Jon Walters, an assistant state’s attorney in the office of Will County State’s Attorney James Glasgow, who has been a vocal critic of the new law. “The new standards could potentially be insurmountable.”
This is part of AP’s effort to address widely shared misinformation, including work with outside companies and organizations to add factual context to misleading content that is circulating online. Learn more about fact-checking at AP.