Will County state’s attorney calls for closure of SAFE-T Act ‘loophole’

The murder case filed against a man accused of killing a Chicago police officer has led Will County State's Attorney James Glasgow to call for lawmakers to close a "loophole" with the SAFE-T Act .

But the Illinois Network for Pretrial Justice, which supports the law, said in a statement that Glasgow's solution would "effectively try to lock up everyone accused of any felony," do nothing to improve safety and "distract the courts from their current careful focus on cases with serious allegations."

In the wake of the fatal shooting of Chicago Police Officer Enrique Martinez, Glasgow said in a statement that lawmakers should allow prosecutors to seek pretrial detentions of defendants charged with any felony offense.

Darion McMillian, 23, of Harvey, was on pretrial release on two felony drug-related cases in Will County before he was charged with the Nov. 4 first-degree murder of Martinez.

Glasgow said the SAFE-T Act does not allow prosecutors to seek pretrial detention for those drug-related charges against McMillian, which were filed before he was charged with the murder of Martinez. The provision of the law abolishing cash bail went into effect last year.

Between 2023 and this year, McMillian was charged in Will County with felony offenses of unlawful possession of marijuana with intent to deliver, unlawful possession of marijuana and unlawful defrauding of a drug screening test.

"The SAFE-T Act does not allow prosecutors to seek pretrial detentions upon individuals charged with these types of offenses, regardless of the severity of any prior criminal history including crimes of violence or murder," Glasgow said.

As part of plea deals in Will County, McMillian pleaded guilty to a 2019 aggravated discharge of a firearm offense and the 2020 misdemeanor battery of Kendall Guyton, 29, of Joliet , who's serving a 27-year federal prison sentence for sex trafficking.

Glasgow said state lawmakers need to "close this loophole by allowing prosecutors to seek detention on individuals charged with any felony offense" or at least allow prosecutors to seek detention on "otherwise nondetainable offenses when the offender has prior criminal history that may include violent felony convictions."

"The tragic events surrounding the killing of Chicago Police Officer Enrique Martinez is one of many reasons why my office drafted a complaint which was joined by over [63] other elected state's attorneys challenging the constitutionality of the SAFE-T Act removing the judge's discretion to consider the severity of the defendant's prior criminal history and the dangerousness of the offender," Glasgow said.

The lawsuit to stop the cashless bail provision of the SAFE-T Act from Glasgow and other prosecutors failed before the Illinois Supreme Court , which upheld the constitutionality of the law last year.

Under a provision of the SAFE-T Act known as the Pretrial Fairness Act, defendants can remain in jail with no ability to pay their way out if they are charged with violent crimes and if prosecutors can prove their pretrial release poses a danger to others or a flight risk.

Will County Judge Amy Bertani-Tomczak twice granted McMillian's pretrial release after finding his two drug-related cases did not make him eligible for detention under the Pretrial Fairness Act, court records show.

McMillian was ordered to surrender all firearms and submit to drug testing.

In an Oct. 16 court order, Bertani-Tomczak demanded McMillian submit to electronic monitoring.

Prosecutors petitioned to revoke McMillian's pretrial release on Oct. 21 after he was charged with defrauding of a drug screening test. Court minutes do not show Will County Judge John Connor ruling on that petition at an Oct. 28 hearing. If Connor had done so, McMillian could've been jailed on that day.

Glasgow and the Illinois Network for Pretrial Justice offered their condolences to the family of Martinez but differed on what should be done in the aftermath of his death.

"We are unfortunately unsurprised to see Will County State's Attorney Jim Glasgow calling for changes to the Pretrial Fairness Act, and specifically, expansion of detention power that will jail more people awaiting trial," according to the statement from the Illinois Network for Pretrial Justice.

The organization said nothing about the allegations against McMillian in his current cases "indicated that he would participate in a shooting that would result in an officer's death."

The Illinois Pretrial Network for Justice said people can mourn Martinez's death while "simultaneously recognize that the best pretrial system in the world cannot predict or prevent every single new offense."

"[We] must carefully examine what caused these young men to access such dangerous guns and switches; then we must address those problems and actually prevent violence, rather than seeking lazy solutions that merely expand mass incarceration without increasing safety or reducing gun violence," according to the organization's statement.

Despite Glasgow's public opposition to the SAFE-T Act, his prosecutors have needed to defend the requirements of the law in front of at least two judges in murder cases .

In one of those cases, David Grijalva, 23, of Joliet, was seeking jail release in a mass shooting case by using the cash bail system that Glasgow defended in his 2022 lawsuit.