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Jim Dey | What's in crime bill? No more cash bonds

Champaign News Gazette

Wednesday, January 27, 2021  |  Commentary  |  By Jim Dey

Crime (28) , Police (28) Bennet, Scott -- State Senate, 52

The rhetoric has been dominated by either generic comments of support or disdain.

Although sincere, they do not go to the heart of the issue — what’s in the 700-page-plus bill that has generated such feverish feedback.

The most substantive change, one that will not be implemented for two years, is the repeal of cash bonds. Henceforth, the legislation states, all persons charged with a crime will be presumed eligible for release following their arraignment on the charges against them.

Ironically, one of the most controversial aspects of the bill is a proposal that is not in it — repeal of qualified immunity that would allow police officers to be personally sued by their fault-finders.

The legislation establishes a commission to study qualified immunity, a judicial doctrine that shields government officials from being personally sued for alleged civil-rights violations.

But there are numerous other provisions that outline new rules governing everything from restrictions on law officers to easing prison terms and modifying rules governing home confinement. Indeed, the legislation’s very size represents a major impediment to public understanding.

“The bill is hard to explain. It’s 700 pages,” said state Sen. Scott Bennett, a Champaign Democrat who voted in favor of it.

He’s a big fan of eliminating cash bail, preferring other standards to determine whether a person charged with a crime — but not convicted — should be released or held in jail after being arrested.

“Cash (bonds) don’t keep everybody safe,” he said.

At the same time, he said holding low-level offenders in jail because they can’t meet even a meager bond “isn’t helping anybody, either.”

Few would argue with those statements, but what specifically does the new law state about terms of release?

To comprehend the proposed change, one has to understand not just the purpose of bond but what happens in bond court where newly-arrested individuals are apprised of the charges against them.

A judge sets bond to establish an incentive for an individual to return to court.

Those who post bond and skip future court appearances may forfeit their bond.

It’s also important to remember that when a case is over, no matter its outcome, 10 percent of any bond returned to a defendant is kept by the county to fund the criminal-justice system.

That’s why ending cash bond has been described by some as a backdoor method of defunding the criminal-justice system.

In bond court, a judge decides — depending on the crime alleged and the history and background of the defendant — what, if any, bond to set. Personal factors a judge considers include the defendant’s community ties, family situation and his employment status.

Many defendants are released on their own recognizance — meaning they’re not required to post a cash bond. Others, depending on their circumstances, can face higher bonds and must post 10 percent of the amount set to be freed.

If bond is set at $5,000, a defendant has to post $500 to be released.

The more serious the crime and background of a defendant, the higher the bond. At the top end, defendants can be held without bond.

Under the new law, according to a legislative analysis, “it is presumed that a defendant is entitled to be released on personal recognizance.”

The rules further state that “detention shall only be imposed when it is determined the defendant poses a specific, real and present threat to a person or has a high likelihood of willful flight.”

That provision is a real burr under prosecutors’ saddles because they say that it will be extremely difficult to show that a defendant who poses a general threat to the community poses a “specific, real and present threat” to any particular individual.

The legislation outlines circumstances where an individual ”may” be denied release. They include “forcible” felonies like sexual assault, a stalking crime, gun offenses or where a family member was the alleged victim.

The new rules are strikingly lenient, especially in cases where an individual released without bond fails to show up in court.

To punish a failure to appear, “first the defendant must be served with a rule to show cause as to why they shall not be subject to a revocation of pretrial release.

If the person still fails to appear, a warrant may be issued.

“The warrant may modify pretrial conditions, rather than revoking pretrial release or issuing a warrant for the person. A non-appearance cured by an appearance at the hearing to show cause shall not be considered as evidence of future likelihood appearance in court.”