Vallas: Chicago can use home rule powers to curb crime

The SAFE-T Act could make it too hard for Chicago to detain offenders. Residents can’t afford that when the city is already amid a violent crime surge. Chicago leaders should use home rule powers to create a city public safety act.

Now that the SAFE-T Act has made Illinois the first in the nation to eliminate cash bail, Chicago City Hall needs to get serious about containing and reversing rising crime and protecting its residents.

One way to do it is to use its constitutional authority to create a city public safety act.

The elimination of cash bail brings long-overdue equity to the criminal justice system, but the law is riddled with conflicting jargon that leaves too many opportunities for dangerous or repeat offenders to be released back into the streets. Residents can’t afford this risk, especially in Chicago, where the city is amid a violent crime surge.

A city public safety act can cover hate crimes, domestic violence, weapons violations and threats against witnesses, victims and police officers. It can also cover possession of stolen vehicles, robbery, burglary, theft and retail theft for items over $1,000 value. Then, the city can impose a maximum sentence of six months and include fines and terms of probation. Prosecutions of public safety city ordinance violations would not depend on lax, permissive state’s attorneys.

By Article VII of the Illinois Constitution, Chicago has “home rule” authority, which allows the city to enact local ordinances “for the protection of the public health, safety, morals and welfare” on any subjects not barred by state law. That power also grants Chicago – and other large cities and municipalities with over 25,000 residents – the ability to prosecute offenders of local city ordinances. A city public safety act fits squarely within these parameters. Home rule units are expressly prohibited from punishing felonies, but are permitted to punish lesser crimes.

For example, in the 1998 case City of Chicago v. Roman, the Illinois Supreme Court upheld Chicago’s authority to impose a 90-day mandatory minimum sentence for assault against the elderly. The court upheld the “power of home rule units, without statutory authority, to punish by imprisonment for less than six months.” The assault provision at issue in Roman remains part of Chicago’s municipal code today, alongside other provisions. Vandalism is subject to a minimum fine of $1,500 per offense. Hate crimes can be punished with up to a $500 fine and imprisonment for six months. Unlawful possession of a firearm can lead to incarceration for 90 days.

The city can and should go even farther, exercising its home rule powers to their limit, consistent with constitutional restrictions.

With new laws under the SAFE-T Act, judges in high-volume court systems, such as those in Cook County in Chicago, face problems with lack of resources and they may be discouraged from ordering pretrial detention. Without pre-trial release guidelines for violent and habitual offenders, the number released to the streets will likely increase. While it won’t directly address the issues of pretrial release and no-cash bail, a city public safety act can help provide the city with additional options for tackling rising crime, allowing Chicago to prosecute folks who violate its city ordinances and potentially reduce the time between arrest and trial.

An accompanying city nuisance ordinance would also ensure accountability for lesser offenses. Rioters, looters, flash mobs and those inciting civil unrest rarely get arrested and, when charged, do not spend even a night in jail. This emboldens them rather than deterring the behavior. Instead, City Hall can initiate consequences, whether criminally or financially. A new city ordinance would empower police to arrest and impose heavy fines on individuals and organizations violating the public way, damaging public and private property, and harassing or threatening city residents.

These ordinances can be accompanied by creation of a city case review unit in the city Law Department to review prosecutors’ and judges’ controversial decisions on charging, pre-trial release and sentencing in violent crimes, weapons and conspiracy cases. Transparency into release of serious offenders has always been lacking. The unit would highlight cases in which criminals with serious past offenses were released on bail and put on home monitors. With pre-trial releases flooding communities with dangerous repeat offenders, real transparency into decisions by prosecutors and judges is needed.

Addressing historic underinvestment in Chicago’s poor and minority neighborhoods and restoring and expanding the community-based social services, such as reopening mental health centers, is critical. But, there is no substitution for restoring police strength and deploying a strategy of proactive policing to contain violence now. That said, if proactive constitutional policing is to be successful it needs to be supported by city ordinances that hold lawbreakers accountable.

Chicago needs to take control of its destiny, as other major cities such as Washington, D.C., have done. Through a city public safety act, the city can enact its own measures to keep dangerous and habitual offenders off the street and to ensure consequences for less-serious crimes. A series of ordinances would, without pre-empting state law, give Chicago police and city residents the benefit of tools that would contain and help roll back the crime pandemic.