• Ben Szalinski
    SEP 22, 2023


    Inside Pretrial Fairness Act detention hearings

    The Cook County Jail 

    Illinois’ most sweeping criminal justice system reform in decades has largely proceeded smoothly around the state with few reports of major problems implementing the system, though critics remain and attorneys are adjusting to the new process.  

    Illinois became the first state in the nation to completely eliminate cash bail on Monday. The state now uses a risk-based detention system that requires prosecutors to prove a person is a flight risk or safety risk to society in order for a person to be held before trial.  

    Non-probational felonies, forcible felonies, hate crimes and others such as manslaughter, residential burglary, child abduction, stalking, domestic battery, certain gun crimes, threatening a public official, animal abuse and forms of driving under the influence are eligible for pretrial detention.  

    Detention is determined on a case-by-case basis, however. Factors such as a person’s previous criminal history, caretaker responsibilities and job are all considered by a judge during detention hearings, which are held within 48 hours of someone’s arrest. Prosecutors must also motion for a person to be held pretrial.  

    People who are not held pretrial are typically released with a set of conditions, many of which were used under the bond system. They include not having contact with the victim, not using drugs or alcohol, showing up to future court dates and not committing new crimes. In some cases, a person will be placed on electronic monitoring if a judge feels that mitigates any flight risk.   

    Inside Cook County detention hearings   

    In Cook County Judge Charles Beach’s courtroom in Chicago Thursday, five detention petitions by the Cook County State’s Attorney’s office were heard. Four of the five cases involved a gun and Beach detained four of the five defendants on the prosecutor’s motion. None of the hearings, which averaged about 30 minutes in length, featured any witnesses or victims.  

    In the first case, Joshua Carmona, 25 of Chicago, was charged with armed violence, carrying body armor, possession of cocaine with intent to deliver and possession of cannabis with intent to deliver. According to prosecutors, police were called to 4211 W. North Ave. in Chicago on Wednesday for a man matching Carmona’s description carrying a gun. Police witnessed Carmona enter a barber shop and found an AR-15-style handgun, 45-round magazine and individual packages of 22 grams of cocaine inside his bag.   

    Prosecutors argued Carmona was a danger to society because of his possession of a gun and body armor. He previously had violated his probation following his discharge from the state’s first-time gun offender program on prior weapons charges. The Cook County Public Defender’s office argued the description of the man with a gun was too vague and raised concerns about police’s constitutional search of Carmona’s bag. Beach ordered Carmona held pretrial citing his possession of body armor and second time charged with a gun offense.   

    In the second case, a 22-year-old Chicago man was charged with unlawful use of a weapon. According to prosecutors, the man was identified by police and known by police for an outstanding warrant for a probation violation following a previous guilty plea to a predatory criminal sexual abuse case involving a 12-year-old girl. Prosecutors said the man was stopped by police on Wednesday afternoon and officers located a semi-automatic pistol in his pocket. The public defender argued the man was cooperative with police, was stopped for a warrant violation and not the gun itself, and that it was also his first gun offense. Beach ordered the man held pretrial because he had previously been charged with sexual abuse by force and plead down to a lesser charge, which Beach said led him to believe the man was a danger to the community.   

    In the third case, Hakeem Jackson, 30 of Chicago, was charged with being an armed habitual criminal. According to prosecutors, Jackson was on parole for four felonies, including robbery and carjacking with a gun when he was 16 years old and had been given a 23-year prison sentence and was released last September.   

    Prosecutors said police received a call Wednesday night of a man with a gun on S. South Shore Drive near a cultural center in Chicago. Police spotted Jackson and another woman on a pod camera and officers located him in the area and noticed the shape of a gun in his pants. Police recovered a nine millimeter handgun and extended magazine with 30 rounds. A private attorney for Jackson argued his prior offenses should not be considered because he was a teenager. Beach ordered Jackson held pretrial because of his criminal background and violating conditions of release.   

    In the fourth case, Henry Dancy, 66 of Chicago, was charged with attempted first degree murder. According to prosecutors, Dancy and a man he knew got into an argument at a bus stop on Monday afternoon and according to a witness, Dancy followed the man away from the bus stop and stabbed him multiple times. Police recovered a bloody knife from Dancy. Prosecutors listed a long criminal history for Dancy including robberies and battery charges dating back to the 1970s. The public defender argued future facts in the case could show Dancy acted in self-defense. Because of Dancy’s age and lack of stable housing, they asked Beach to put him on electronic monitoring in an alternative housing program. Beach disagreed, noting the victim had tried to leave the argument but Dancy pursued.   

    In the fifth case, prosecutors alleged a 20-year-old from Dolton was found Wednesday afternoon wearing a ski mask and going through a woman’s bag in the parking lot of a business in Chicago’s Roseland neighborhood. When police approached, they said police saw a gun in the man’s hand and he ran from police. After catching him, police recovered a Glock and extended magazine with 45 rounds that the man had abandoned during the foot-chase. He was charged with aggravated unlawful use of a weapon, manufacturing cocaine and resisting police. Prosecutors said the man was out on bond after he led Sauk Village Police in a vehicle chase last month.   

    The public defender argued the charges were merely allegations and the state did not meet the burden of proof to detain the man because finger printing hadn’t been conducted on the gun and video evidence hadn’t been reviewed. Beach agreed and said the lack of robbery charges despite police seeing him with a gun and digging through a woman’s bag made it difficult to prove he used the gun in a dangerous way. Beach denied the petition for pretrial release, but ordered the man held in jail until Monday when he faced a different judge at the Markham courthouse to discuss his bond violation.  

    Beach’s conditions of release for the man included a 7 p.m. to 6 a.m. curfew to allow the man to go his job at a Chicago Ridge mall, electronic monitoring and avoiding the location and witnesses involved in the alleged crime.   

    Throughout the five hearings, the public defenders raised objections to the prosecutors using prior police reports to demonstrate a defendant’s danger to society. The public defenders said prosecutors had not supplied them with the police reports. Prosecutors argued they had provided the public defenders with prior case numbers, which allowed them to look up the police reports. Prosecutors added they believed the Pretrial Fairness Act was designed to allow the circumstances of prior arrests to be raised in pretrial hearings to give the judge a more complete picture of the individual. Beach agreed and said the public defenders had ways to access the reports without them being directly supplied by prosecutors.   

    During each of the hearings, Beach explained to the defendants how the new pretrial detention hearings work and that his detention recommendations would be reevaluated at every court appearance.   

    Some still have concerns  

    No major incidents of judges or prosecutors not following the new process have been reported around the state. But the law’s critics haven’t gone away.   

    “The elimination of cash bail has led to more crime everywhere it has been tried,” former Republican nominee for governor Darren Bailey said in a statement. “Government’s primary job is to protect its citizens. Thanks to the SAFE-T Act Illinois is failing miserably.”  

    Bailey focused his 2022 campaign for governor on potential negative public safety impacts from the SAFE-T Act and end of cash bail, but voters weren’t convinced.   

    But Republicans immediately pounced on the case of a Cook County woman who became the first person in the county on Monday allowed to go on pretrial release. Esmeralda Aguilar, 24 of Chicago, was charged with pepper spraying four police officers over the weekend, according to WTTW, and was charged with aggravated battery of a peace officer — a detainable offense. She was released after prosecutors decided not to pursue detention.   

    “This highlights the misplaced priorities of Illinois' criminal justice system when the prosecutor prioritizes the freedom of a violent offender over the safety of those police officers dedicated to protecting and serving our communities,” Senate Minority Leader John Curran (R-Downers Grove), who is a former Cook County prosecutor, said in a statement.   

    The SAFE-T Act was only publicly supported by Cook County State’s Attorney Kim Foxx and Lake County State’s Attorney Eric Rinehart, both Democrats. McHenry County State’s Attorney Patrick Kenneally, a Republican, has remained a vocal critic of the law this week, telling the Lake & McHenry County Scanner the process is “absurdity.”  

    “The most glaring problem with the SAFE-T Act is that pretrial release decisions are being made based on the type of charge a defendant faces, not a defendant’s dangerousness or likelihood of complying with court orders,” Kenneally told the publication Wednesday after a pair of people charged with violent crimes were released by a judge.   

    According to the law, judges can consider a person’s “threat to the safety of any person or persons or the community, based on the specific articulable facts of the case, that would be posed by the defendant's release,” and “the person has a high likelihood of willful flight to avoid prosecution” when charged with certain felony offenses. Prior instances of a person’s failure to appear in court are not enough to detain a person, however.  

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