The Cook County Department of Corrections (CCDOC), housing one of the nation's largest jails, is seen in Chicago, Illinois, on April 9, 2020 ( AFP / Kamil Krzacznski)

Misleading claims about Illinois cash bail law circulate online

Copyright AFP 2017-2022. All rights reserved.

Online posts and fake newspapers circulating in Illinois claim a law provides for the automatic release of accused criminals across the US state. This is misleading; while legislation passed in 2021 does eliminate cash bail, legal experts say judges can still jail those who may pose a threat to the community.

"Illinois non-detainable offenses Beginning January 1, 2023," says text in a September 14, 2022 Instagram post with more than 248,000 likes.

Below the text is a list of crimes, including kidnapping and second-degree murder.

"Under this new law, after being charged with the crimes listed, those arrested would be released without bail pending a court date," the post says.

Screenshot of an Instagram post taken September 19, 2022

Illinois Governor J.B. Pritzker, a Democrat, signed the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act into law in January 2021. Proponents of the legislation say its provisions -- including the elimination of cash bail by January 1, 2023 -- will help reform police accountability, sentencing and electronic monitoring. This is in response to the nationwide movement for equity within the criminal justice system, one that disproportionally affects underprivileged communities and leaves many languishing in jail without a conviction because they can't afford to post bail.

However, many Republicans opposed the legislation due to public safety concerns. Now, as midterm elections approach, the law has again become a point of controversy.

One video of Orland Park, Illinois Mayor Keith Pekau criticizing the measure received more than 8.7 million views on TikTok. Similar posts have circulated on Facebook, Instagram and Twitter. And in Chicago, a series of conservative-funded mailers made to look like newspapers claimed the SAFE-T Act would automatically release those accused of serious crimes into the community.

But such claims are misleading, according to legal experts and one of the bill's sponsors.

"The bail reform provisions of the SAFE-T Act empower judges to focus solely on defendants' threats to public safety and keeping dangerous criminals off the streets," said Illinois state Representative Justin Slaughter, a Democratic sponsor of the bill, in an email.

What the law does

The claims circulating online relate to the Pretrial Fairness Act (PFA), a component of the SAFE-T Act that changes the processes for pretrial release and detention hearings.

While the legislation would eliminate cash bail, which many courts use as a guarantee that defendants will return for trial, it would not prevent judges from jailing those accused of serious offenses while awaiting trial.

Sharone Mitchell, public defender of Cook County, Illinois -- home to Chicago -- told AFP in an email that the legislation creates "a detention hearing in which the judge must consider evidence brought by the prosecution and then make a decision regarding pretrial detention."

"For serious, violent crimes, prosecutors can argue for detention based on public safety or flight risk standards," he said. "Prosecutors can also seek detention if the person violated the terms of their release or sentence in a previous case."

The crimes listed in the posts -- second-degree murder and aggravated battery -- are offenses for which judges could deny defendants pretrial release, according to the PFA.

David E. Olson, co-director of the Center for Criminal Justice Research, Policy and Practice at Loyola University Chicago, said the claims circulating online are "providing an incomplete picture" of the law.

"Part of the argument for the law is that if someone poses a danger to society, and they're charged with a serious offense, then we should hold them to protect society," he said. "We shouldn't make public safety contingent on whether or not they or their friends or family can come up with enough money to get them out."

Alexa Van Brunt, director of the MacArthur Justice Center Clinic at the Northwestern Pritzker School of Law, said judges "always have had the capacity to hold people no bonds if they present a real safety threat that is shown by clear and convincing evidence."

"And that won't change," she said. "The difference now is that judges can't just use cash bonds in lieu of evidence of a threat to hold people."