Much is being written about the comprehensive criminal-justice reform legislation recently tendered to the governor for signature.
One might hope that Gov. J.B. Pritzker has the insight, foresight and fortitude to veto the legislation and suggest to the General Assembly that the most controversial components be revisited individually with true and timely input from all concerned.
Some of the provisions of the bill have real merit and are long overdue. For example, a comprehensive system of pretrial detention that focuses on the risk of flight or the threat to public safety presented by a defendant is almost indisputably sound.
However, the complete abolition of cash bail should be reconsidered, as one can imagine rare cases in which requiring the posting of cash bail would be wise or necessary to ensure the appearance of a defendant. (Imagine, for example, a defendant charged with financial crimes who has demonstrated that money means everything to him. Beyond that, imagine a case with a corporation as a defendant. Indeed, how is a court best to ensure the appearance of any business entity that is charged with a crime?)
Other provisions of the bill are simply not well conceived and will likely cause confusion, if indeed they do not bring misfortune to all concerned. For example, the proposed addition to the statute for resisting a peace officer — forbidding an arrest for that offense unless there are already free-standing grounds for an arrest for a separate offense — is an example of legislation that is the product of good intentions hobbled by a ball and chain of naivete.
Just imagine a situation in which an officer has grounds to stop and detain (but no probable cause to arrest) a person suspected of armed robbery. Assume further that the officer has legal grounds to frisk the suspect.
What is the officer to do if the suspect resists the frisk? Is the officer to simply abandon the task, losing total control of the situation? Is the officer to pursue the frisk and simply wait to be battered by the suspect, only then to make an arrest?
These questions are not merely rhetorical. Instead, they illustrate scenarios that Illinois law-enforcement officers face on a daily basis. The proposed amendment is thus utter folly and is perhaps the best example of certain provisions of the reform bill that were simply not thought through.
Yet there is almost certainly a broader problem with the reform bill that perhaps no gubernatorial veto could ever alone resolve: Many provisions are just further examples of legislation being merely an end in itself rather than a means to an end; codifying rules that might look good on paper but will at last go unheeded or even unread.
A glaring example of this lies in the proposed complete abolition of cash bail. In this regard, it would be sadly noted that Illinois law provided for decades that cash bail is not a default condition of release in criminal cases. Well instead, statutory law long provided that a recognizance bond with appropriate conditions is preferred in the vast majority of cases.
The pertinent statute, governing release of a defendant on his or her recognizance, contained this provision:
“Monetary bail should be set only when it is determined that no other conditions of release will reasonably assure the defendant’s appearance in court, that the defendant does not present a danger to any person or the community and that the defendant will comply with all conditions of bond.”
This statute was perhaps as simple a rule of social, prosecutorial and judicial policy as one could imagine. Yet it apparently went overlooked over the course of decades.
One might first or ever wonder how many proponents of “bail reform” in Illinois were themselves ever aware of the quoted statute. I am inclined to think that they were not.
I offer no negative criticism of them here, as it is apparent that many hours of sincere hard work went into the bail-reform provisions of the bill.
Yet I cannot shed the notion that lawmakers often look for solutions to problems that do not exist and, with something approaching the same frequency, fashion new remedies to real problems when the first and best remedy is right before them; needing only informed and resolute application.
One is thus left to wonder how the Illinois criminal-justice system might have far sooner progressed had a wise and well-stated enactment of the legislature been first reified.