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.”