The Illinois SAFE-T Act: Eliminating Racial Bias in Pretrial Detention

In January 2023, Illinois became the first state in the nation to completely abolish the cash bail system. Governor Pritzker signed the Safety, Accountability, Fairness and Equity-Today Act, abbreviated as the SAFE-T Act, into law in February 2021 after a 32-23 vote in the Illinois Senate. This Act proposes a series of pretrial reforms to address racial and socioeconomic inequalities present in the current criminal justice system. Specifically, the SAFE-T Act eliminates the cash bail requirement. Before January 2023, the cash bail system required that a judge approve pretrial release conditional on an individual’s ability to make bail, which typically ranges between a few thousand to tens of thousands of dollars.

Researchers overwhelmingly agree that cash bail disproportionately affects low-income, BI-POC communities, does not affect the likelihood of violent behavior during the pretrial period, and actually results in increased recidivism. A 2013 report by the Arnold Foundation concluded that pretrial detainment increased the likelihood of future criminal behavior in low- and moderate-risk offenders by 40 to 50%. Further, prosecutors set cash bail amounts for Black individuals at rates over three times higher for white detainees. This discretionary power results in disproportionately higher rates of pretrial detention for Black individuals as well. In 2015, over 70% of the jail population in Illinois consisted of pretrial detainees, which significantly exceeds the national average. With this policy in effect, financial means will no longer determine an individual’s eligibility for pretrial release.

The SAFE-T Act further addresses the pretrial detention system by restricting cases in which judges can require pretrial detention. Prosecutors must identify arrested individuals as posing a specific threat to a victim or to society in intensive bail hearings, which usually happen within 72 hours of an arrest or 48 hours of felony arrest. Illinois statute allows judges to order pretrial detention for forcible felonies, including first- and second-degree murder, aggravated assault, arson, burglary, criminal stalking, battery, and sexual assault, ensuring that violent and potentially dangerous individuals remain in custody. Illinois statute also mandates pretrial detention for individuals arrested for forcible felonies with a known flight risk. Activists generally agree that these requirements minimize pretrial incarceration rates while sufficiently protecting victims.

The SAFE-T Act is only a starting point in the state’s criminal justice reform plan and a potential model for criminal-legal reform that other states can follow. I had the chance of interviewing Representative Kam Buckner, who led the writing of the SAFE-T Act in the Illinois House of Representatives. In the conversation, we spoke about his inside views about the bill and criminal justice reforms.

When asking about what he intended to achieve when drafting the act, Rep. Buckner said, “When we wrote the SAFE-T Act, it was our goal to create a more equitable criminal justice system. Draconian policies of locking up countless low-income Illinoisans, who had not been convicted of a crime, fostered bad relationships between law enforcement and the communities they protect. By shifting the focus for lock-up away from access to cash, we hope to strengthen those ties and proactively combat violent crime.”

Regarding directing more power to judges, Rep. Buckner believes that “Empowering judges to focus simply on public safety will also close a very important loophole. There are many instances of violent criminals making bail because they are rich or backed by criminal organization. The bail reform section of the SAFE-T Act cuts off that dangerous avenue.” He later added, “I trust our prosecutors understand that and can keep violent criminals behind bars.”

Rep. Buckner expressed hope that the SAFE-T Act will begin to address some of the historical wrongs inherent in the criminal legal system: “our system is turning away from a practice that penalizes the working class for their incomes by holding them in jail, often for non-violent offenses. Illinois is taking a leading role in these vital reforms and, after speaking with legislators from other states, I’m confident many will follow in our footsteps.”

When we asked about what he wished to improve on in future legislation, Rep. Buckner replied, “Of course, there is still work to be done to reform our overly-punitive criminal justice system. We still have far too many Black and Brown men filling our jails for non-violent crimes. Mass arrests tear communities apart but solve Chicago’s public safety problem not one bit. I am for safe streets. I am for cracking down on violent crime. What I can’t support is years behind bars for a substance abuse or mental health problem. Those are the reforms we need next.”

Addressing the compromises he had to make to pass the bill, Rep. Buckner shared, “While crafting the SAFE-T Act, we heard from a number of stakeholders across the ideological spectrum. There were many differing interests to manage, but I feel confident the SAFE-T Act will have a positive impact.” He told us that he is “pushing for more reforms to keep non-violent offenders from serving extended sentences. The success of the SAFE-T Act lays the groundwork for that future.”

Any proposed reform will not wholly address the problems produced by the historical cash bail system nor repair the harms caused decades of bad policy; however, as Rep. Buckner expressed, abolishing cash bail is an important step Illinois must take to advance to a more just and equitable society.