Illinois will become the first U.S. state to eliminate cash bail after the state's Supreme Court upheld the pretrial fairness portion of the controversial SAFE-T Act Tuesday.
But when will the new bail procedures begin and how will it work?
Here's what we know:
What did the Illinois Supreme Court ruling state
The court stated in its 5-2 ruling that determining the constitutionality of the Pretrial Fairness Act "is not an endeavor that we take lightly."
"The Illinois Constitution of 1970 does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public," the court concluded. "Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims. The Act’s pretrial release provisions set forth procedures commensurate with that balance. For the reasons that we have stated, we reverse the circuit court’s decision to grant summary judgment in favor of plaintiffs."
The elimination of cash bail was set to take effect Jan. 1, but has been on hold as the Supreme Court heard an appeal filed by Attorney General Kwame Raoul's office following an earlier ruling from a Kankakee County judge, who deemed it unconstitutional.
Local
Supreme Court Chief Justice Mary Ann Theis delivered the court's opinion.
Feeling out of the loop? We'll catch you up on the Chicago news you need to know. Sign up for the weekly Chicago Catch-Up newsletter.
Joining Theis in her opinion were Justices P. Scott Neville Jr., Joy V. Cunningham and Elizabeth M. Rochford. Justice Mary K. O'Brien specially concurred with her own opinion.
Justice David K. Overstreet dissented, arguing that the law violates the constitution's Crime Victims Bill of Rights, which voters added in 2014. He said it gives victims the right “to have their safety and the safety of their family, considered in denying or fixing the amount of bail.” Changing that requires voter approval, not just legislative action, he wrote.
Justice Lisa Holder White joined Overstreet in his dissent.
Outside of the elimination of cash bail, other portions of the SAFE-T Act, including new requirements for body cameras and other police reforms, were already allowed to stand.
When will cash bail be eliminated?
As part of the court's decision, the Supreme Court's hold on the elimination of cash bail in Illinois ends 60 days following the ruling.
That puts the date at Sept. 18. At that time, circuit courts in the state are expected to begin operating in accordance with the SAFE-T Act provisions.
“With the court’s decision today, the elimination of cash bail will soon take effect. Other parts of the act, not challenged by the plaintiffs, also remain in effect and will have a positive impact within the state," Raoul said in a statement. "This includes my office’s authority to conduct pattern-and-practice investigations of civil rights violations by law enforcement and improvements to the police officer certification process that create uniformity for departments across the state, promote professionalism in law enforcement and increase transparency."
How will it work?
Under the original provisions of the bill, as passed by the General Assembly, the state would allow judges to determine whether individuals accused of a specific set of felonies and violent misdemeanors pose a risk to another individual, or to the community at large. Judges will also be asked to determine whether the defendant poses a flight risk if released.
If the judge makes any of those determinations, then the defendant may be held in jail prior to trial.
According to Lake County State’s Attorney Eric Rinehart, his office will "file petitions to detain offenders who are arrested after Sept. 18, 2023."
"Judges will decide whether someone is detained or not detained awaiting trial. If a judge rules for detention, those individuals arrested after the effective date will no longer be able to access cash to gain release," Rinehart stated.
According to the Cook County Public Defender's office, "as they do already in Cook County, people accused of many misdemeanors will be released from police custody and given a court date in the future."
Those accused of "more significant offenses," however, will appear in court within 48 hours for their initial appearance.
"If the prosecutor petitions for pretrial detention, the court will hold a detention hearing within 24-48 hours. If, at the Detention Hearing, the prosecutor will present evidence that the accused person is a potential threat to community safety or a flight risk," the office said in a release. "The defense attorney can contest this evidence. Based on the evidence presented at the detention hearing, the judge will decide whether to order the accused person detained or released pending the outcome of their case. The judge may order conditions of pretrial release, such as electronic monitoring or curfew. If a person is denied release at the initial hearing, they will have future hearings to contest whether they must continue to be jailed pending trial."
Detention hearings would not be not mandatory for crimes that include probation as a possible punishment, but judges can still make the determination to keep those defendants incarcerated pending trial if they determine they are a risk to the public.
Which crimes are included?
The list of so-called “forcible felonies” that could invite judicial discretion on pretrial detention originally included first and second-degree murder, predatory criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, kidnapping, aggravated battery resulting in great bodily harm, or any other felony that involves the use or threat of physical force or violence against an individual.
But the latest proposal adds non-probationable felonies, forcible felonies, hate crimes, attempts of crimes that are otherwise detainable, and others to the so-called detention net — crimes that qualify a suspect for detention. Additions include offenses that require jail or prison time, and not probation; all forcible felonies; hate crimes, animal torture and DUI causing great bodily harm. Judges may also choose to release such suspects.
“We still have a detention net that is very clear, judges have discretion within that detention net,” Illinois State Sen. Robert Peters, who filed the amended bill, said. “But again, the intent and the core parts of this legislation remain intact.”
What is the SAFE-T Act?
Emerging after the Minneapolis police beating death of George Floyd in May 2020, the SAFE-T Act sets rigorous new training standards for law enforcement, spells out rules for police use of force in immobilizing troublesome suspects, requires body cameras on all police by 2025 and more. Authored by the Illinois Legislative Black Caucus, the act was approved by the Illinois General Assembly last year, bringing "significant changes" to things like police training policies, police accountability, transparency in law enforcement and the rights of detainees and prisoners, according to Sen. Elgie R. Sims, Jr., who sponsored the bill.
Among the changes it was set to bring were the elimination of monetary bail, a requirement that all police officers wear body cameras by 2025, a ban on all police chokeholds, new guidelines for "decertification" of police officers, and an end to suspended licenses for failure to pay, among several other things. It also bans police departments from purchasing military equipment like .50 caliber rifles and tanks, increases protection for whistleblowers, and adds to rights for detainees to make phone calls and access their personal contacts before police questioning.
Detainees, prisoners and all those who interact with police officers would have the expectation of prompt medical care while in custody, with special accommodations made for pregnant women. Charges of resisting arrest must cite a justification for the original arrest that was allegedly resisted against under the measure, as well.
The bill was amended prior to Jan. 1, when it was set to take effect, however.
The amendment focused largely on clarifying language on several fronts, including whether defendants detained prior to Jan. 1 would be released once the legislation goes into effect, and making clear which crimes would qualify for pretrial detention.
For a full list of what's included in the bill, click here.
What has the response been?
Supporters of the bill, which was pushed forth by Illinois Democrats, say the elimination of cash bail is a step towards fairness in an unbalanced system.
Proponents describe it as a penalty on poverty, suggesting that the wealthy can pay their way out of jail to await trial while those in economic distress have to sit it out behind bars.
Raoul noted that "someone’s experience with the criminal justice system should not vary based on their income level."
"The SAFE-T Act was intended to address pervasive inequalities in the criminal justice system, in particular the fact that individuals who are awaiting criminal trials – who have not been convicted of a crime and are presumed innocent – may spend extended periods of time incarcerated because they cannot afford to pay cash bail. The law ensures that the decision about whether people are detained pending trial is not based on whether they can afford to pay for their release," he said in a statement.
Cook County State's Attorney Kim Foxx echoed that sentiment.
"Today’s ruling ends the cash bail system, replacing that system with a detention process based on community safety and not on the financial fitness of defendants," she said in a statement.
Opponents, however say the elimination of cash bail neglects victims of crime.
Critics have argued that bail is a time-honored way to ensure defendants released from jail show up for court proceedings. They have warned that violent criminals will be released pending trial, giving them license to commit other crimes. Democrats, however, agreed to changes to the bill before it was set to take effect, adding clarifications on numerous crimes that would still be subject to detention hearings.
"Today’s ruling by the Supreme Court confirms Illinois’ status as the state of lawlessness and disorder. The court ignored the pleas of nearly every prosecutor in the state of Illinois, Democrat and Republican, that the elimination of cash bail will put dangerous criminals back on the street, instead of keeping them in jail or forcing them to post cash bail as they await trial," the Illinois Fraternal Order of Police said in a statement. "Many of those offenders will commit crimes again within hours of their release. And who will have to arrest those offenders again and again? The police officers whose jobs have been made immeasurably more difficult by all of the new anti-law enforcement measures that are in place. Today’s ruling is a slap in the face to those who enforce our laws and the people those laws are supposed to protect.”
But some state officials have pushed back on concerns of dangerous offenders being released due to the change.
"Let me reiterate this: we will still jail defendants prior to trial, and the defendants we do hold will be the dangerous weapon offenders, drug traffickers, child molesters, murderers, and domestic abusers who will no longer be able to use their own cash (or their accomplice’s cash) as an escape hatch from justice," Rinehart said in his statement. "Our communities will be safer because of today’s ruling."
Illinois Gov. J.B. Pritzker had said he was confident the act will be found to be constitutional by the justices.
“I’m pleased that the Illinois Supreme Court has upheld the constitutionality of the SAFE-T Act and the elimination of cash bail," Pritzker said in a statement. "We can now move forward with historic reform to ensure pre-trial detainment is determined by the danger an individual poses to the community instead of by their ability to pay their way out of jail. My thanks to Attorney General Raoul’s office and the many people who worked tirelessly over the last months to defend these important reforms. I look forward to continuing to work with the General Assembly and our many other partners as we transition to a more equitable and just Illinois.”
The Associated Press contributed to this report
