Tucked into the new and much-debated 764-page law that does away with Illinois’ cash-bail system is a single paragraph that could have a big impact.
It means that people caught with small amounts of drugs won’t have to sit in jail for days until they’re brought before a judge.
That might sound like a small thing. But advocates for people who use drugs say spending any time behind bars can have disastrous consequences, like losing a job or going through the painful process of withdrawal from drugs.
The Pretrial Fairness Act, which is part of the sweeping SAFE-T Act, is scheduled to take effect Jan. 1.
The law changes the rules for how the police can handle people accused of Class 4 drug possession felonies, which involve having less than 15 grams of cocaine, heroin or other controlled substances.
Class 4 offenses — the lowest level felonies — carry a sentence of one to three years in prison, even for being caught with no more than a baggie that contains drug residue.
In Chicago, most of those cases ultimately get dismissed, a Better Government Association/Chicago Sun-Times investigation found last year.
Under the new law, a police officer who catches people with small amounts of drugs will have discretion to release them with a citation that orders them to show up in court on a specific date within 21 days.
But if they instead are held in a police lockup until court, they must appear before a judge within two days, when, under the Pretrial Fairness Act, they would almost certainly be released until trial.
Raymond Galloway, a cook who was unable to work after he was jailed last year on a Class 4 drug possession case that ended up being dismissed, says it’s a good change.
Galloway was featured in the December 2021 BGA/Sun-Times investigation, “The costly toll of dead-end drug arrests.” It described how thousands of people in Chicago had been getting locked up only to have a judge soon dismiss the drug charges they faced, though not until they’d spent time in jail, sometimes losing jobs or homes as a result.
He called the move to give police discretion in handling Class 4 drug arrests “awesome.”
“People won’t lose their jobs or apartments or housing or some other things that are important to them,” Galloway says.
Cook County Public Defender Sharone Mitchell Jr. says the Pretrial Fairness Act “takes an important step to remedy the harms of the short jail stays documented in your article by allowing police to release people accused of simple drug possession from their custody without detaining them for up to two days in order to send them to court.”
Mitchell notes that the new law extends to minor drug-possession cases the same discretion the police already have with arrests for most misdemeanor charges.
The public defender’s office has urged that the police not arrest drug users at all.
In recent years, that’s increasingly been the case in Chicago. Since the COVID-19 pandemic began in 2020, arrests for possession of small amounts of drugs have plummeted in Chicago as officers focused on a surge of violent crime.
In 2019, through mid-October, Chicago police officers arrested more than 6,400 people on Class 4 drug-possession cases for which that was the most serious crime involved in the arrest.
Over the same period this year, about 1,300 people were arrested.
This year through the end of September, another 300 people were caught by Chicago police officers with small amounts of drugs but released without charges in a program that allows them to enter drug treatment and avoid court and jail altogether.
Asked how the Chicago Police Department will respond to the new law about Class 4 drug offenses, a spokesperson says that’s being reviewed.
The Illinois Association of Chiefs of Police “hasn’t taken a position on specific matters relating to the Pretrial Fairness Act,” according to Lou Jogmen, president of the group and Highland Park’s police chief. “We have generally deferred on those issues to the experience and expertise of the state’s attorneys.”
Lake County State’s Attorney Eric Rinehart, whose office prosecutes Highland Park’s criminal cases, has been a vocal supporter of the new law, as is Cook County State’s Attorney Kim Foxx.
Dozens of other state’s attorneys across Illinois have filed lawsuits to try to keep the SAFE-T Act and its Pretrial Fairness Act from taking effect, arguing that the measures are unconstitutional. Those cases have been consolidated in the Kankakee County circuit court.
One Cook County judge, speaking on the condition of anonymity because he says he’s not authorized to talk publicly about his views on cases that might come before him, says he’s not a fan of the new Class 4 drug possession language in the Pretrial Fairness Act. He says people caught with drugs should go before a judge immediately and get screened to see whether they can be put in a drug-treatment program.
“We’re pushing the line back up to three weeks,” he says.
The judge says he anticipates that many of those who will be released with citations to appear in court on drug charges won’t show up.