Decoding Illinois's No Cash Bail/Safety Act: Insights with David Drwencke"

Episode 3 Transcript

David Drewecki:
Welcome to Defending the Windy City with David Drewecki. I'm Sam Henninger, and we are going to delve into two critical topics, the No Cash Bail Act and the Safety Act. These legislative measures have far-reaching implications for the criminal justice system in Illinois and warrant a thorough examination. In fact, David, right before we started, you were explaining how even lawyers don't fully understand what this means for them and their practice. So let's dive in and can you give us a clear understanding of what the no cash bail and safety acts mean?

Sam Henninger:
Absolutely. Well, Sam, thanks for having me. And this is a crucial topic because it is still so fresh and new. The Safety Act passed, I believe, officially in 2022. It was then paused as it was going to go live on January 1st of 2023, but it had gone up to the Illinois Supreme Court and then came back after some argument and ultimately was upheld as constitutional and went live, so to speak, in September of last year. So it's only been about a half a year of being live and doing these hearings and being under this new cash bail or with no cash bail law that I see it on almost a daily basis where there are attorneys and there are judges who are still really kind of feeling their way through this, that there's some misconceptions, there's maybe some misunderstandings about the factors and what is even involved in this and the appellate process and everything else that's involved. So it's something that I've spent an inordinate amount of time because I knew this was going to be not just new but crucial and would touch effectively every case that I would have because I deal with a great deal of felonies and my clients can be detained and they're subject to the Safety Act. So really excited to talk about this. There's a lot to get into.

David Drewecki:
Right. So why don't you explain for us what are the objectives and goals of the No Cash Bail Safety Act and how does that aim to address issues within the bail system?

Sam Henninger:
Really at its core, one of the Safety Act or the Pretrial Fairness Act, as it's also known, really the foundational word that I would use, it was about fairness. That under the old cash bail system, if you had money and a judge determined that bail was appropriate, you could get out. If it was $10,000 or $20,000, maybe even more, $100,000. If you were affluent or had friends and family who were or had money, you got to fight your case sleeping in your own bed and being in your own home. If you didn't have money, it meant you were staying. There was no middle ground. It was either you're going to be detained or you're set out on some level of cash bail. So if you were not affluent, if you didn't have a lot of money in the bank or have access to funds, it meant you stayed in jail really just because you didn't have money. It was really that simple. And so the new system tried to eliminate that portion, that the analysis isn't about how much money you have or you have access to or how much you could scrounge up in the matter of a month or two or three or whatever it may be. It's an analysis of should you be released or should you be detained. So now there's no gray area with a monetary amount getting you out. It's if the judge determines that you should be released, it's with what conditions. If a judge determines that you are not to be released, that you're going to be detained, you stay in. That's it. It's very binary. You're out or you're in. If you're out, it's with what conditions. But the foundational point was, let's try to make this fair. That really is the word. And let's take money out of this. Like just because you have money doesn't mean you should be able to get out. And just because you don't have money doesn't mean you should have to stay in. It should be about if you are a flight risk or if you're a dangerous individual, those are some of the factors that go into the safety act or a detention hearing. That was really the biggest point of this. There's a bit more that goes into the law, but the one that really the biggest factor, the biggest change was eliminating cash bail for fairness.

David Drewecki:
Have there been any challenges that you've seen so far with implementing this no cash bail system? And in particular, I'm thinking about public safety and individual rights as it's being implemented.

Sam Henninger:
Well, I can say certainly in a lot of the rhetoric and things that were being argued before this act passed and then before it actually started to be implemented was there were call it a misconception or a belief that's, oh, there's no cash bail. Everybody's getting out. It's just going to be crime rampant in the streets because nobody is in jail until they're actually convicted. That's not exactly true because there are specific types of offenses, certainly anything that's violent, including misdemeanors. Anything that's violent, you're going to have a detention hearing. There are other types of offenses, maybe a drug possession, some other types of offenses that are non-violent, where you would be, you could kind of call them catch and release of sorts, where you get caught, you get cited, you get a ticket, you'll have a court date, you're going to have to follow up with the case. But there's no risk that you're going to be detained or held in jail while that case is going on, because the legislature has determined on its face, this isn't somebody we're necessarily worried about. So that was one misconception from murder to sex assault, to gun possession, to all kinds of domestic violence. You're just out. There's no cash bail. You're just out. That's not exactly how it works, both in how it's written and then how in reality the law is being implemented.

One of the issues that I'm running into is the interpretation of this case law by a lot of sitting judges, that there are judges who have, I'll call it, not politically speaking, but a more conservative view on this. They go through the elements that we'll chat about a little later, and they can find pretty much everyone detainable. Like that's a conclusion that a judge who wishes to reach that type of conclusion basically can for everyone, meaning people in the past who would have gotten a modest bond, maybe they have to post $500 and they would have gotten out. Now we're just being detained. There's no middle ground. The judge is holding you, you're detained, the end. So that's one issue is you're getting into judges who are interpreting this in a pretty strict way. And then, of course, there could be the alternative. And depending on your viewpoint, there could be judges who are viewing this a little more loosely and say, well, I can come up with a reason to release effectively everyone, you know, if I so chose in my discretion. And because there is still that would be the word that I think surprises a lot of attorneys and clients is that at the end of the day, the judge has factors they go through, but it's a discretionary decision. It's in their experience, in their knowledge, their interpretation of this law, whether you're going to get out or not. And that poses an issue because there are inconsistent applications of the law where the same charge, similar background, but two different judges. One person is in custody. The other person is out with reasonable conditions. That goes back to that word discretion and how this is being implemented. There's a great deal that goes into this. And I think it's a lot of it's just misunderstandings. It being so new. Some attorneys don't deal with this every day. They've only seen a hearing or two. At this point, I've done a hundred plus. And I stay up to date. There's already some interpretive case law that has come out from the Court of Appeals because there's some misunderstandings in how this is being applied, including by judges.

David Drewecki:
So, David, standing at 6'9", you are literally a giant of criminal defense. And so I'm interested in hearing what your perspective, your experience has brought to this more recent development of the No Cash Bail and Safety Act and how it affects defendants in the legal process.

Sam Henninger:
Well, I can tell you that I think in principle or philosophically, the Safety Act, I think is sound, that it does, it makes sense that we should be making a determination on whether somebody should be out, you know, fighting a case from their home, pretrial, or if they should be detained or held, that it shouldn't be based on money. Again, just because you're wealthy, you get to go out, but somebody who does or is not, has to stay in custody. That philosophical point, I would agree with. Going back to our earlier part of this discussion when it comes to that discretion, is that there are inconsistent findings here. And that can be frustrating, that we do want consistency, we do want some level of predictability, but we also aren't going to do something formulaic in the way I'll describe it to a client. A detention hearing isn't a formula where it's one plus one equals two. I can tell you exactly what the result will be. It has to be this. This is what will happen. There's some more art than science in a great deal of this. What judge do you have? You know, let's work through those factors that the judge is supposed to consider. And this inconsistency is what's frustrating from my perspective.

Now, again, I think I've nailed down these factors and the persuasive arguments, and now I've done enough of them that I feel like the predictability has gone up a little bit now, but it's still not 100% that I can't guarantee a result to a client on the front end, or even do so in maybe the high 90% at this point, because there are so many uncertainties from the judge and how they're going to apply these factors, that how is this impacting clients? Well, the ones who are be being held in jail. Deten you remain in Cook County The jail while your case not out, you're not at h you're not with your fami meeting with your attorne over the phone or Zoom conferences primarily. You're seeing them every 30 days or so in court, physically more often than not, but sometimes on Zoom as well. That is a really big deal. And I'm mindful of that, that if a client is being detained, I really hope it's because the judge is applying the factors appropriately and being judicious in how they're doing that. These are real consequences. There's no middle ground. It's not that you set a number that maybe they can't pay today, but they can pay in a month or in 60 days where eventually, yeah, they can go home. It just may not be immediate. Now it's all or nothing. You're out or you are in and that inconsistency is frustrating and the consequences are real when you're being detained and you have to stay in jail while your case is being fought out.

David Drewecki:
What cases have come up or events that in the implementation of this new act has influenced legal proceedings and their outcomes?

Sam Henninger:
One specifically that I think is very, I would argue is more pro-defense. It's People v. Stock, S-T-O-C-K, just like stocks and bonds. This came out in December of 2023. So at this point, it's just a couple of months old. And it was re-analyzing one of the factors, and quickly, the factors that ultimately a judge will go through at a detention hearing is, it's a detainable offense first and foremost. That's factor number one. Is this detainable? It's binary. It either is or it is not. Okay, it is detainable. State, are you wishing, are you filing a petition or a motion? Do you wish to have the defendant detained? If it's detainable, most of the time, the state is moving for detention. So they file their petition.

Second factor is, how strong's the case? Is the proof evident or conviction likely? And that's very early in the case. I don't love that factor because I don't have the benefit of seeing all the evidence. I know what my client's charged with, but I don't even know everything the state has. But the state goes forward and talks to the judge, makes an argument, says, Your Honor, Here's why our case is so strong. We have eyewitnesses or physical evidence, and we believe the evidence will show X, Y, and Z. And of course, the state always makes their case sound like it's the most open and shut, no-brainer. They're definitely going to get a conviction constantly, yet I keep getting that guilty verdict. So that makes me wonder if their proffers are always totally genuine and they're arguing in good faith, but I digress.

So that's the second factor. How strong is the case? Can the state convince the judge that it's very likely that you're the one who committed this detainable offense and you should remain detained? Third factor, there's a 3A and a 3B. Are you either a danger to society or a particularized individual or are you a flight risk? And again, the state has to go through an argument and say, well, their background indicates that they're a dangerous person. They'll go through your criminal background. Some of the elements of the case, obviously, if it's a murder charge or a gun discharge, they're going to say, well, this is a violent offense and this is what he or she did. And they're a violent person. Or if they fled from the police as a part of the case, your honor, that shows that they're not going to come to court. or in their past again, getting into your criminal background. That defendant or client failed to appear to court that a warrant or wasn't warrant issued. Do they have old cases that are still pending because they haven't come back to court? So 3A, 3B show that they're either a danger or that they're a flight risk.

And then number four, this is the one that I think is most beneficial to the defense, though it depends on the judge and how they interpret it. Four, is there a less restrictive means than detention with some sort of mixture of conditions that could allow them to be released? If that's electronic monitoring or home confinement where you rather than being in jail, you're at your house 24-7, 365 with an ankle monitor or a GPS, global positioning unit, where you can go places or effectively go anywhere you want except certain excluded zones. Pre-trial release where you check in with an agent, you do drug testing or alcohol testing, things like that.

The state has to meet all four of those conditions and convince a judge by clear and convincing evidence that all of those four things are true. That it's detainable, that they have a super strong case that has a likelihood of conviction, and that you're the one who committed this offense, that you're either a danger or a flight risk, and there is no less restrictive means they should remain detained.

The stock case that I mentioned earlier came out and basically interpreted the law like I did, that you can't just use this new case that a defendant is at this point, especially early in the litigation, a detention hearing usually happens right at the beginning of the case. They're presumed innocent. They're presumed not guilty to have not committed this offense and the state's alleging that you have, but just the facts of that case alone, even a violent one, even a very violent one, that should not be enough. The state cannot rely just on their proffer or their view of the facts that you are a dangerous person and that there is no less restrictive means, just kind of hand-waving those last two elements by saying, well, it's a violent offense, they're a violent person, they should be detained. That's how some states' attorneys were arguing this very early on.

And stock came back, that opinion came back and said, whoa, no, no, no, you still have to meet every one of these elements, every one of these factors, and you have to do so with clear, articulable facts and convince the judge beyond just the elements of this new case that they're a danger or a flight and that there's less restrictive means. You don't get to hand wave those things, which is, again, how I always interpreted it because I can read the English language and that's what the statute says, that there are all these elements you have to prove, but that case has proven to be persuasive and useful for the defense because we're making sure the state has to go through every one of these elements and articulate facts and evidence to convince the judge that they've met their burden on all four factors rather than just kind of hand-waving things and saying, hey, it's a violent offense, detain them.

David Drewecki:
Now, that sounds like a far cry from what you had explained earlier, where people were worried about violent people just getting to go willy-nilly in the streets.

Sam Henninger:
Absolutely right. There is a lot more into this. And again, so many cases or types of charges are subject to a detention hearing that no, people are not just going, you know, being charged with murder and then going home the next day or a gun possession or domestic battery or anything like that. There is a process, there is a hearing that we have to go through first.

And then again, there are a lot of judges who are interpreting this in a pretty strict way. And there's a good number of people who are being detained, though, as I've understood and read some of the articles and information, prison or not prison jail populations have shrunk a little bit there are more people out than previously and that's in large part at least arguably because now we're not worrying about people having to pay which is how the system is supposed to work. So I suppose on that hand it it is so David what?

David Drewecki:
common misconceptions or misunderstandings about this development do individuals have and how could they better understand their rights and options under this law?

Sam Henninger:
There are a number. Some of the biggest ones when it comes from a client's perspective is that just because you're detained at that first hearing does not mean you will be detained for the entire case. I get calls from clients who are current or prospective clients who are currently in custody and are angry and are upset because the judge ruled that they should be detained at that first appearance hearing. So they got charged. There hasn't even been an indictment. There's a whole process for that.

But a judge has said, listen, you have to stay in jail for this. I've determined that the factors have been met. You're a danger or a flight risk. You're staying in jail until this case is done. And not surprising, they're upset about that. They're worried that, do I have to stay in for the rest of this case, or is there any chance I'm going to be able to get out? The answer is yes, there's a chance you can get out. That when you are assigned to a different judge later in the process, or technically at every subsequent court date, that detention status is supposed to be reviewed.

Now, of course, I would, in a perfect world, would have something new to say. If you're being detained, I want to be able to point the judge to some new evidence or some argument they haven't heard before about why you should be released beyond the fact that, well, it's been another month or 30 days or whatever it may be. I don't like that my client is in custody. He or she does not like that they are in custody. Please let them out. Like that's not really a legal argument, even though I'm empathetic to that feeling.

So that's definitely one misconception is that you're in and you're going to stay in. The other one is that you're out and you're going to stay out. I implore my clients that if you're out and if you have whatever those conditions may be, abide by them. If the judge is telling you you have to check in with somebody on a daily or weekly or monthly basis, please do that. Don't commit a new offense. Don't get arrested for a new offense. That's a basis to come in. Don't leave the state without permission. These are some of the even the small things that can happen and the state's going to find out about it eventually. Maybe not immediately, but they're going to find out and they're going to let the judge know you have violated your release conditions and now you should go in. And that's a real possibility because the judge will look at the client and say, listen, release is not a right. It's effectively a privilege. I gave you a chance to be out. You violated it in A, B, and C way. Now you're going to be detained as the case is going on.

Cases in Cook County specifically, though this is true throughout most of the American criminal justice system, are not fast. You know that that's another misconception that relates to the safety act is that I'm in the case will be done fast. I may not like it, but I'm going to be done in 60 days or 90 days. The reality is almost no case has done that fast. It takes usually months to get discovery, which is another word for evidence. It takes time to review that, to see if there's motions, to get a trial together, that it is in your best interest if you're out to stay out. And if you're in, have an attorney who knows how to attack the Pretrial Fairness Act, these detention hearings, the Safety Act, to put you in the best light possible and to give you the best chance to get out. There's plenty of others that we may be able to talk about, but I think those are the big ones that I run into every day.

David Drewecki:
Thinking about the broader landscape of criminal justice reform, how do you see this, the Pretrial Fairness Act, playing into all this, especially when it comes to fairness and equity?

Sam Henninger:
I think one of the biggest components that the Fairness Act and Safety Act tries to address is just the overpopulation and epidemic of in-custody individuals, especially before they have to be. I can appreciate, even my clients oftentimes can appreciate, listen, I've been convicted or that person's been convicted. Jail time is a part of this. They may not love it, but they understand it. But to be in custody, be in jail, and you haven't even been convicted of anything yet, there's merely a charge. There's an allegation. And for some of these cases, that is the evidence. It's someone says you did something. It maybe it's a sex assault. Maybe it could be even a murder cases sometimes or other offense. Someone says you did something. There's no other evidence whatsoever. And it might be a very serious offense, but now you're going to be in custody or there's wide swaths of our population that are in custody and they're in jail and they're not working. They're not paying bills. They're not with their family. They're not watching their children. They're not helping raise their children. They're not around for mom and dad. These have impacts as on a global scale, on a national scale, on a citywide scale, that you're not here to help raise your family or provide for your family, and that just foundationally is, you know, is that fair to excise someone out, to pull them away from their family before they've been convicted of anything, when it could be as simple as someone just says you did something. And maybe you did, maybe you didn't, but let's work through the process. That's why we have a judicial system, why we have jury trials and bench trials before the judge.

But the Pretrial Fairness Act is trying to get more people home, which I think it's been successful in doing so, while also minding the public safety and not just letting everyone out, because there certainly are some that meet the criteria to remain detained. But then at the same time, understand these are allegations. This is a charge. You are presumed innocent or presumed not guilty. Let's not pull you away from your family. That isn't fair. That's not justice until something later in the process says that you actually are guilty, which is a finding of guilt at a trial.

David Drewecki:
And so you've dug into this. What specific provisions or aspects of this do you think are particularly important for listeners to be aware of?

Sam Henninger:
Well, I think the most important portion of this is there are a great deal of offenses that are not detainable. Now, that list is long. We don't have enough time to go through every one of those cases, but that not every offense is going to be detainable. So this may not apply to you, at least as far as the detention hearing. So you can get cited, get your next court date. There's no risk that you're going to go to jail or be held unless you were to violate in some other way. If you pick up another case, that is the fastest way of being held, detained or in custody.

The other one is not to give up all hope. If you're listening to this and you have a family member or a loved one or a friend who's detained, they may not be in there the entire time. Get a hold of an attorney who can help, who can listen to your situation, who understands the applicable factors in case law that are interpreting this. This is new. There's going to be new case law. I'm certain of it on a monthly basis until we've really settled in on the factors, what the state needs to prove, how the judge is supposed to interpret those factors and guide the judge. Is this sufficient to detain? Is this insufficient to detain? What is it that the judge needs to look at? What is enough evidence? What is clear and convincing? What is a flight risk? If somebody drives two blocks away and then pulls over, is that fleeing and eluding? Is that show they're not going to come to court? Is having one violent offense and nothing else in your background, is that enough? Is that the state just relying on this charged offense that you're presumed not guilty of?

So there's a lot that goes into this, and because it's still so new and people are learning, again, this is the entire system. From the judges who are interpreting this law, to the attorneys who are practicing under this law, to the clients who are either benefiting from or suffering from this law, this is new and we're still learning. I dig into it every day. I have about a dozen different alerts that if there's anything new by way of case law or interpretive kind of legal opinions or analysis as it relates to the Safety Act, I get news alerts. I get legal updates on new cases so I can stay on top of this. Unfortunately, I can't say that every attorney is doing that. Some attorneys have no idea about the stock case yet. They'll eventually hear it because they're probably going to hear me argue about it and go and look it up and say, man, that's great. That's great law. I should be using this. And the answer is yes. And you should have been using it since December because that's when the case law came out. That's one benefit of dealing or working with me specifically in my law firm is that we stay up to date on this so that we can get the best results for our client.

David Drewecki:
What are you seeing that could be a potential future development or change that could really impact how this gets implemented?

Sam Henninger:
I don't know if we're going to have structural changes to this because it is still so new. It's not even a year old at this point. We are feeling our way through it. One of the unintended consequences, though I think maybe we should have been able to predict this, was just the mass of appeals on just detention hearings. So it's not a substantive about guilt or innocence or the factors or your facts of your case. this client, John Doe client or Jane Doe client was detained. And they are upset about that, understandably so. So they are going to appeal the trial level or the state court decision to the Court of Appeals. Well, the Illinois Court of Appeals has been inundated. There are tens of thousands of these now. There have been multiple articles that have come forward where they are overwhelmed with these. And now they're trying to find ways to either have fewer appeals or to clean up the process.

And that is something that I believe that just this month that I believe on the 22nd, there's a new procedure coming through on how do you appeal? What's the next step if you get the decision that you don't like if you're being detained? And the first step is really is to go before your trial level judge, the judge who said you're detained, have file a motion to reconsider, deal with them first, and then if you still don't like the decision, if they've doubled down and said, nope, you're staying detained, my original decision was correct, then go to the Court of Appeals because they're trying to slow the flux of or influx of so many appeals. And again, that is both predictable, but was also not totally planned for. So the Court of Appeals is slammed up.

The next bit is just as more people work their way through the system, these appeals work their way through the system, there's going to be the legal phrase, interpretive case law. So like the stock case I mentioned before, where they get into analyzing factor three and four about what does the state really have to prove and show beyond the facts of the underlying offense. There's going to be new cases that come out that greater refine and focus what is appropriate to de evidence and what isn't t is appropriate and this i things are going to come t predictability I think a know, we now know how the supposed to be appropriat interpreted, and because we know how they're supposed to be interpreted, and I can apply my client's factors and background and history and facts of the case to a better set of known factors and interpretive case law, I can now predict the outcome a lot better. And then in turn, there should be a lot less appeals because we all kind of know what's going to happen heading into this because we better understand the law.

This is just so new for everyone that there still are uncertainties unknown. And the Court of Appeals hasn't ruled on every bit of this just yet as far as how to guide, maybe that's the best way of wording, to guide trial court judges in making the appropriate decision to avoid things needing to be appealed or being reversed later. That comes with time, but again, I don't see substantive change. I think the factors will remain the same. We'll just learn better how they're supposed to be interpreted so that both the state's attorney and defense counsel can argue that in front of a judge and then have some better predictability on what that result will be. Like we used to have under the old cash bail system, I would go in having a very good understanding, like, okay, the judge is likely to set a bond. I may not know exactly what that cash number will be. But I feel comfortable they're going to do it or the alternative say, hey, this is not the type of case you're likely to get a bond on. Here's why. And I can explain that the new system is still so new and we're feeling our way through that, that I can't always predict ahead of time. And that that's frustrating for clients.

David Drewecki:
Well, David, you have so much insight and I really appreciate you offering it so generously. So I want to thank you again for coming on the show. And I want to encourage everybody, please like and subscribe for more conversations like this.