Op-Ed: Broken legislative system forgets about residents, crime victims

I was one of the likely three people who actually watched the show hearings in the Illinois House during lame-duck session regarding eliminating bail and most forms of pretrial detention.

Though the hearings featured witness testimony, remarkably, the super-majority Democrats had a negligible interest in hearing from the criminal defendants in whose name these seismic shifts in criminal justice policy were being sought.

House proponents neglected to call anyone whose life was “destabilized” by pretrial detention after being arrested for dealing methamphetamine or committing arson such that they were deprived gainful employment or the opportunity to care for their families. No one was called who could articulate the exact injustice they suffered after being arrested and released on bail, as opposed to merely ticketed, for committing misdemeanor offenses such as transmitting obscene images, theft, or assault.

Rather, the marquee witnesses in favor of the measure were criminal defense attorneys or, more notably, formidably titled “executive directors” and “directors of policy advocacy” for hyper-partisan, well-funded NGOs devoted to the best policy interests of criminal defendants – not crime victims. Members of a professional class who, as a whole, have not spent a lot of time in courtrooms, and whose “expertise” appears to be their own opinions and perspective.

Most matriculated from redoubtable institutions of higher learning and are lavishly credentialed with graduate degrees, honorary titles, and professional awards. Their day-to-day or “advocacy” is essentially working their way into the sphere of influence of legislators. Their currency is “studies,” many of which are “push-studies” commissioned by like-minded advocacy organizations that are cherry-picked to paint the bleakest possible picture of the criminal justice system.

As an example, the third witness called was Northwestern University Law School graduate and six-time national award-winning lawyer, Todd Belcore, executive director of Social Change, who is dedicated to “disruptive liberation” and who has “lead or assist[ed] in efforts to pass 23 measures in multiple states.” He is likely responsible for more state laws being enacted than most legislators from McHenry County.

No doubt, all are people of goodwill and certainly impressive, however, they are not exactly “powerless” or “directly impacted.” They are essentially special interests and the super-majority handed them the keys to the kingdom to loose bail elimination, or their moralistic version of social reform, from their high stations on down.

And they certainly know how to comport themselves at the court in Springfield to have maximum sway with House members not averse to being puffed up. Brendan Shiller, J.D., board president of Westside Justice Center, and second-generation power broker being the son of longtime Chicago Alderman Helen Shiller, began his testimony by saying, “thank you state Rep. [Justin] Slaughter … I want to thank [Judiciary-Criminal] committee for all the work you’ve been doing over the last six months in particular in light of the last week it is really heartening to see democracy at work, to see debate and to really try to get to a resolution on some of these issues we’ve been trying to figure out for decades, if not centuries, and to begin to look at creative solutions.”

Not exactly speaking truth to power. The Judiciary-Criminal committee had not met once in the last six months to discuss bail elimination, purportedly because the risk of COVID-19 was too great. The bill’s proponents artfully held the bill until lame-duck session; enticed embattled Rep. Madigan to convene lame-duck session at the peak of the second-worst COVID-19 outbreak in Illinois; sprung the 600-page bill at the beginning of the five-day lame-duck session in a calculated ploy to deny time for opponents to fully appraise it or mount meaningful opposition; cold-shouldered the 99% of law enforcement who were not about to praise them for their bold vision out of the all-important closed-door meetings; redeemed the votes of amenable, lame-duck members who voters can no longer hold accountable; continued to add consequential language to the bill after it was filed; and infamously elbowed the bill into enactment at around 5 a.m., one hour after it was filed in the Senate, on the morning lame-duck session was set to end.

Mr. Shiller was there to testify in favor of revoking a police officer’s authority to arrest someone for a Class B or C misdemeanor. During Mr. Shiller’s testimony, Rep. Slaughter, however, was forced to admit upon inquiry from minority Rep. Bryant that the pertinent language Mr. Shiller was discussing was not currently in the bill and had never been considered or debated by the Judiciary-Criminal committee. Mr. Shiller testified that he had only provided the language “yesterday.”

This process was not “heartening,” it was heartless and deformed; a ruthless chambering and discharge of power. The entire enterprise, decisively settling the centuries-old conundrum of what to do with a person presumed innocent but where there is probable cause to believe they committed a crime, was plotted and executed to mute to the maximum extent procedurally possible basic features of a functioning democracy – fairness, transparency, compromise, and dissent.

It was not just haphazard, it was intentionally so. Before the disbelief that they were actually-seriously-really going to go for something this complicated and comprehensive during lame-duck session had been overcome, the bill’s final and complete language had even been included, and heads were even slightly wrapped around the bill’s provisions or what it all means, the super-majority had already blown right by.

The problem with the measure is not that it eliminates cash bail, a policy I and many others in law enforcement support. Rather and stepping back, the first problem is that it is unintelligible.

Shockingly, it is littered with typos and poor grammar. You have to read the bill, but its provisions do not align or cohere and often contradict one another. For example, under the new law, the court may issue a warrant for the arrest of a defendant who fails to appear in court, “the contents of the warrant shall be the same as required for an arrest warrant issued upon complaint and may modify any previously imposed conditions placed upon the person, rather than revoking pretrial release or issuing a warrant for the person…” So a warrant for arrest may be issued, the contents of the warrant being that a warrant not be issued. Got it.

Even presuming JCAR is able to clean it up, far more problematic is the fact that the bill makes pretrial detention of objectively dangerous defendants either impossible or unduly onerous. By the terms of the bill, unless a person is charged with a serious felony offense for which prison is generally the only outcome, they must be released pretrial irrespective of their danger to the community or likelihood of committing other offenses. Without hyperbole, if a defendant arrested for his third DUI after crashing into his neighbor’s home and tells the judge that he has no intention of not drinking and driving if released, the judge has no choice and must release that defendant. If the court sets a condition of bond that the defendant not consume alcohol and the defendant begins failing alcohol tests, the court is without any means to detain this defendant until his trial date. He will be out among us.

The same is true for drug dealers, thieves, aggravated batterers, involuntary manslaughterers, child abductors, kidnappers, harborers of runaways, arsonists, intentional transmitters of HIV, hate criminals, cross burners, abusers of corpses, dismemberers of human bodies, sellers of body parts, ritual mutilators, inducers of others to commit suicide, child abandoners, identity thieves, forgerers, defrauders, hackers, vehicular hijackers, burglars, those who use stolen firearms in the commission of an offense, false reporters, transmitters of obscene images, bribers, money launderers, boarders of airplanes with weapons, concealers of fugitives, witness harassers, corrupt government officials, bid-riggers, animal torturers, and horse mutilators to name a few.

It is of no consequence whether they had been released from prison the day before committing the offense, live next door to a victim, have extensive criminal histories, pose a danger to the community or a specific person, are likely to be sentenced to prison, were videotaped committing the offense and confessed, have a dismal history of not complying with conditions of their release in prior criminal cases, or admit on the record they cannot resist the voices in their head telling them to commit a crime. Under the new law, they will be released, a judge has no discretion or capacity to hold them.

While it is true that felons facing mandatory prison, like murderers, and sex abusers, and defendants alleged to have victimized family members can be held pretrial, in order to do so, the State must meet the onerous burden of establishing that the defendant poses a “real and present threat to the safety of a specific, identifiable person or persons” and must be able to name those persons. In other words, a murderer who had stabbed to death the only identifiable person who he endangered must be released.

This new law is so ideologically decadent, self-evidently dangerous, and out of step with the expectations citizens and victims have for their criminal justice system, one can only marvel with wry appreciation at how unconditionally sovereign a one-sided, academic lobby has become in the realm of criminal justice. Despair over the fact that the timing of this bill coincided with the finalization of statistics revealing that the murder rate in Chicago had increased 50% and many parts of Illinois had experienced unprecedented increases in violent crime.

One witness, Sharone Mitchell, Jr., J.D., director of the Illinois Justice Project, and recently tapped as the next Cook County Public Defender, was questioned about a similar bill in New York that was repealed a few months after implementation. When asked about an instance in New York City where that State’s bail reform law had led to a defendant being arrested and released seven times in one day, Mr. Mitchell responded, “so, I think that, first off, the stories about the horrors of the New York system were written before it was actually put into place.”

He’s right in one sense, all the stories of the future tragedies and absurdities that will arise from this measure can be pre-written as they are inevitable. But as you can see from his flip response, they are ready for it. Ready to dismiss all those future victims or surviving family members who, grieving and bewildered, ask, “how was it that he was even out.” They have already intellectualized and abstracted the future crimes of clearly dangerous defendants out on pretrial release as either an acceptable cost or just examples of fear-mongering by reactionary turnkeys like me. They will not be able to see the victims of their policies through the glare of their own incandescent discernment.

Credit where credit is due: The elimination of cash bail is an important step forward, as are legislative measures to reduce pretrial prison populations. However, manipulating legislative rules and processes to avoid polluting ideologically pristine reform efforts with a semblance of balance and common sense leads to the worst type of legislation – the type where one side gets exactly what it wants.

We have heard ad nauseam how “broken” the criminal justice system is by the legislators and advocates that passed pretrial detention elimination. Maybe it is time they turn a critical eye toward how functional, candid, and fair their process for passing this measure was.

• Patrick Kenneally is the McHenry County State’s Attorney.

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