File Photo – McHenry County State’s Attorney Patrick Kenneally | Photo: Gregory Shaver/Shaw Media (Pool)

The McHenry County state’s attorney says the public and victims of crime are “bearing the risk” under the new cashless bail system as more defendants, who he thinks should be held, are being released.

McHenry County State’s Attorney Patrick Kenneally said Monday that six defendants have recently been released from custody due to “more SAFE-T Act failures.”

The first defendant is a 21-year-old man charged with indecent solicitation of a child and sexual exploitation of a child after he allegedly showed a child his erect penis and asked the victim to make contact with it.

A judge released the man after telling him to appear for future court dates, not violate any laws, comply with court orders, notify the clerk of changes to his address and have no contact with the victim.

The judge found those conditions were sufficient to mitigate the threat posed by the defendant, Kenneally said.

The second defendant is a 41-year-old man charged with violating an order of protection after allegedly going to and remaining at the petitioner’s protected address.

Kenneally said the man was on pre-trial release at the time of his arrest for his fourth driving under the influence case.

He has been arrested over 20 times, including five times for felony offenses.

“Even though the Defendant had been arrested while out on pretrial release, the Defendant was not detained on the order of protection charge,” Kenneally said.

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A judge released the man after telling him to appear for future court dates, not violate any laws, refrain from possessing firearms, have no contact with the protected party in the order of protection and notify the clerk of any change in address.

The judge found the conditions were sufficient to mitigate the threat posed.

The third defendant is a 42-year-old man who was also charged with violating an order of protection.

The man was out on pre-trial release for domestic battery at the time of his arrest.

A judge allowed the defendant to be released from custody despite him being arrested while already on pre-trial release, Kenneally said.

The man was ordered to appear for future court dates, not violate any laws, refrain from possessing firearms, have no contact with the protected party in the order of protection and notify the clerk of any change in address.

The fourth defendant was charged with residential burglary, theft and violating an order of protection.

Kenneally said the man allegedly entered his ex-girlfriend’s home, which is a protected residence under an order of protection she has against him.

The defendant allegedly stole miscellaneous items, including two televisions.

He was released after a judge ordered him to comply with court orders, not violate any laws, update the clerk of any change in residence, refrain from possessing any firearms and have no contact with the person in the order of protection — the same person he was previously ordered by the terms of the order of protection not to contact.

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The fifth defendant is a 67-year-old woman who was previously charged with aggravated driving under the influence third offense, Kenneally said.

She had been held on a $40,000 bond since July 29 unable to post bond.

At the time of her arrest, she was out on pre-trial release for her second driving under the influence case that she was charged with in April.

The woman filed a petition seeking release under the SAFE-T Act because aggravated driving under the influence third offense is a non-detainable offense. A judge allowed her to be released.

The sixth defendant is a 62-year-old man who was being held in custody on a $250,000 bond for drug-induced homicide after delivering heroin that led to a man’s overdose death.

Kenneally said the defendant has an extensive criminal history dating back to the 1980s with multiple prior arrests and convictions for felony drug-related crimes. He has also served time in the Illinois Department of Corrections.

The man sought release under the SAFE-T Act and a judge granted him release despite the offense he is charged with being “detainable.”

The judge found that the evidence had not overcome the “presumption” in favor of release by establishing dangerousness.

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Kenneally said the SAFE-T Act arbitrarily forces the court to make “hold” or “no hold” decisions simply based on the type of charge as opposed to a defendant’s level of risk.

The Pretrial Fairness Act of the SAFE-T Act creates a strong presumption in favor of release that cannot be overcome unless the court finds the defendant “poses a real and present threat to any person or the community” and no “combination of conditions” can mitigate the threat posed.

The new law went into effect last month in Illinois, ending cash bail throughout the state.

“The first problem is that even if a court finds that a defendant will not comply with conditions of pretrial release, such as appearing for court, not violating the law, or surrendering firearms, it still must “presume” the defendant is entitled release unless it finds there is sufficient evidence (that must be presented within hours of a defendant’s arrest) that those violations would ‘pose a threat to a person or the community,'” Kenneally said.

The state’s attorney said the new law’s creation of a strong presumption in favor of release is an issue because it applies to defendants who have “dismal” criminal histories charged with violent offenses that have already demonstrated their “utter disregard for prior court orders.”

“It forces the public and victims to bear the risk as opposed to the defendant,” Kenneally said.