What is the SAFE-T Act?

A new law in Illinois, House Bill 3653/PA 101-0652, is set to make major changes to our criminal justice system and within the law enforcement profession. The last-minute, late-night passage of the overhaul in 2021 set residents and those in the profession into a frenzy for its lack of input from the law enforcement community and prosecutors. Now, nearly two years later, some of the most concerning provisions are set to take effect. While the law makes several changes limiting police officers’ ability to do their jobs and protect the community, it also completely abolishes cash bail statewide beginning January 1, 2023, making it nearly impossible for judges and prosecutors to be able to hold certain dangerous offenders in jail pre-trial.

The law received bipartisan opposition in the General Assembly, garnering just enough votes to pass. Governor Pritzker signed the bill into law just a few weeks later. Today, many legislators who voted in favor of the law are now admitting to many of the flaws that state’s attorneys have been warning about for nearly two years.

“UNDER THE NEW SAFE-T-ACT, ENTIRE CATEGORIES OF CRIME, SUCH AS AGGRAVATED BATTERIES, ROBBERIES, BURGLARIES, HATE CRIMES, AGGRAVATED DUI’S, DRUG INDUCED HOMICIDES, ALL DRUG OFFENSES, INCLUDING DELIVERY OF FENTANYL AND TRAFFICKING CASES, ARE NOT ELIGIBLE FOR DETENTION REGARDLESS OF THE SEVERITY OF THE CRIME OR A PERSON’S RISK TO A SPECIFIC PERSON OR THE COMMUNITY, UNLESS PROSECUTORS PROVE BY CLEAR AND CONVINCING EVIDENCE THE PERSON HAS A ‘HIGH LIKELIHOOD OF WILLFUL FLIGHT TO AVOID PROSECUTION.’”

-DuPage County State’s Attorney Bob Berlin
Read the Full Statute

Important Definitions & Citations

Willful flight means planning or attempting to intentionally evade prosecution by concealing oneself. Simple past non-appearance in court alone is not evidence of future intent to evade prosecution. Pages 334, 335 of 764, P.A. 101-652

Pretrial Release: Pretrial release may only be denied when a person is charged with an offense that qualifies for denial of pretrial release (as defined in 725 ILCS 5/110-6.1) or when the defendant has a high likelihood of willful flight, and after the court has held a detention hearing.

Presumption of release on own recognizance – 725 ILCS 5/110-2

It is presumed that a defendant is entitled to release on personal recognizance on the condition that the defendant attend all required court proceedings and the defendant does not commit any criminal offense, and complies with all terms of pretrial release, including, but not limited to, orders of protection under both Section 112A-4 of this Code and Section 214 of the Illinois Domestic Violence Act of 1986, all civil no contact orders, and all stalking no contact orders. Page 335 of 764, P.A. 101-652

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. Page 336 of 764, P.A. 101-652

If, after the procedures set out in Section 110-6.1, the court decides to detain the defendant, the Court must make a written finding as to why less restrictive conditions would not assure safety to the community and assure the defendant’s appearance in court. At each subsequent appearance of the defendant before the Court, the judge must find that continued detention or the current set of conditions imposed are necessary to avoid the specific, real and present threat to any person or of willful flight from prosecution to continue detention of the defendant. The court is not required to be presented with new information or a change in circumstance to consider reconsidering pretrial detention on current conditions. Pages 336, 337 of 764, P.A. 101-652

Denial of Pretrial Release:

The SAFE-T Act outlines a complex and contradictory process of criteria that must be met in order for a defendant to be denied pretrial release (725 ILCS 5/110-6.1). Upon verified petition by the State, the court must hold a hearing at which it may deny the defendant pretrial release only if:

  1. The defendant is charged with a forcible felony for which a sentence of imprisonment without probation, periodic imprisonment or conditional discharge is required by law upon conviction, and the defendant’s release poses a specific, real and present threat to any person or the community; Page 370, P.A. 101-652
  2. The defendant is charged with stalking or aggravated stalking and the defendant’s release poses a real and present threat to the physical safety of a victim of the alleged offense; Page 370, P.A. 101-652
  3. The defendant is charged with domestic battery or aggravated domestic battery and the defendant’s release poses a real and present threat to the physical safety of any person(s); Page 371, P.A. 101-652
  4. The defendant is charged with specified sex offenses and it is alleged that the defendant’s pretrial release poses a real and present threat to the physical safety of any person(s); Page 371, P.A. 101-652
  5. The defendant is charged with certain firearms violations under the Criminal Code of 2012 and the defendant’s release poses a real and present threat to the physical safety of any specifically identifiable person(s); or Pages 371-373, P.A. 101-652
  6. The defendant is charged with a non-probationable forcible felony, stalking or aggravated stalking, domestic battery or aggravated domestic battery, a sex, or a felony other than a Class 4 felony and the defendant has a high likelihood of willful flight to avoid prosecution. Page 373, P.A. 101-652

Forcible felony means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual. 720 ILCS 5/2-8

Non-Probationable Offenses– 730 ILCS 5/5-5-3

  • First Degree Murder
  • Attempt First Degree Murder
  • All Class X offenses
  • A Class 2 or greater offense if the offender has been convicted of a Class 2 or greater offense within 10 years of the date on which the offender committed the offense for which they are being sentenced
  • Residential Burglary
  • Criminal Sexual Assault
  • Aggravated Battery of a Senior Citizen
  • Vehicular Hijacking
  • A second or subsequent conviction for a Hate Crime when the underlying offense for which the Hate Crime is based is felony Aggravated Assault or Felony Mob Action
  • A second or subsequent conviction for Institutional Vandalism when the damage is more than $300
  • Cannabis Trafficking
  • Calculated Criminal Cannabis Conspiracy
  • Controlled Substance Trafficking
  • Delivery of Controlled, Counterfeit, or look-alike Substance to a person who is under the age of 18, or if the delivery occurs within 1000 feet of a school, place of religious worship, roadside safety rest area, or truck stop
  • Possession with Intent to Deliver, or Delivery of, 5 grams or more of a Controlled Substance containing, cocaine, fentanyl, or analog thereof, or 3 or more grams of heroin.
  • Unlawful use of Weapons when the weapon is a machine gun, or when the possession is within 1000 feet of a school, place of religious worship, public housing, or public park and the weapon is a device used to silence a firearm, a rifle with a barrel shorter than 16 inches, a shotgun with a barrel shorter than 18 inches (and the total length is less than 26 inches)
  • Unlawful use of Weapons, Aggravated Unlawful use of a Weapon, and Unlawful use of a weapon by a convicted Felon or by a Person within a Correctional Facility if some of the statutory mandatory prison requirements are present such as: it is a second or subsequent felony offense for Unlawful use of Weapons or a felony violation of the Firearm Owners Identification Card Act, or if the offender has been previously convicted of a forcible felony, Stalking or Aggravated Stalking, or has a prior Class 2 or greater conviction under the Controlled Substance Act, Methamphetamine Control Act, or Cannabis Control Act
  • Aggravated Unlawful use of Weapons when the offender has a previous felony conviction
  • A forcible felony if the activities are related to an organized gang
  • A violation of the Compelling Organization Membership of Persons statute
  • All Child Pornography charges except simple possession without aggravating statutory factors
  • Residential Arson and Arson of a Place of Worship
  • Gunrunning
  • A second or subsequent conviction for a violation of the Methamphetamine Control Act
  • A second or subsequent violation for Driving on a Suspended or Revoked License when the reason for the revocation is a previous Reckless Homicide or similar provision of law in another state.
  • Unlawful Purchase of a Firearm

Probationable Class 3 felony offenses

  • Aggravated Battery great bodily harm or public place
  • Calculated Cannabis Conspiracy
  • Institutional Vandalism below $500        
  • Forgery
  • Bomb Threat    
  • Concealment of Homicidal Death            
  • Involuntary Manslaughter          
  • Involuntary Manslaughter & Reckless Homicide 
  • Official Misconduct       
  • Perjury 720-5/32-2        
  • Intimidation     
  • Aggravated Unlawful Restraint  
  • Custodial Sexual Misconduct     
  • State benefits fraud above $300
  • Tampering with public records  
  • Threatening public officials; human service providers

Probationable Class 2 felony offenses that are forcible felonies

  • Robbery
  • Burglary
  • Arson
  • Kidnapping

NOTE: The Class 2 and Class probationable felonies even if not detainable under the public safety consideration provisions might still qualify for detention but only under the willful flight provision.      

What prosecutors must prove at the detention hearing process:

  • Hearings to deny pretrial release must be held within 48 hours of a defendant’s first appearance on a Class X felony, Class 1 felony, Class 2 felony, or Class 3 felony and within 24 hours if the defendant is charged with a Class 4 felony or a misdemeanor offense. Page 374, P.A. 101-652
  • All defendants shall be presumed eligible for pretrial release and the State bears the burden of proving by clear and convincing evidence that the defendant committed an offense that qualifies for pretrial detention, that the defendant poses a real and present threat to the safety of a specific, identifiable person or persons and that no condition or combination of conditions can mitigate the risk of releasing the defendant to a person’s safety or the defendant’s risk of willful flight. Pages 374 – 376, P.A. 101-652