UPDATED 5:47 P.M.
SPRINGFIELD, Ill. (Capitol News Illinois) โ A landmark criminal justice reform that eliminates cash bail in Illinois is constitutional, the stateโs Supreme Court ruled Tuesday, paving the way for the change to take effect Sept. 18.
The 5-2 decision โ handed down on partisan lines โ means that an individualโs wealth will no longer play a role in whether they are incarcerated while awaiting trial. Judges can still order someone to be detained as they await trial, but the new system will instead be based on an offenderโs level of risk of reoffending or fleeing prosecution.
With the new lawโs implementation, Illinois will become the first state in the U.S. to fully eliminate cash bail โ and all provisions of the SAFE-T Act criminal justice reform will have taken full effect.
Short for Safety, Accountability, Fairness and Equity-Today, the wide-ranging measure was an initiative of the Illinois Legislative Black Caucus that passed in the wake of a nationwide reckoning with racism in the criminal justice system following the murder of George Floyd by a Minneapolis police officer.
The act reformed police training, certification and use-of-force standards, expanded detainee rights, and gave the attorney generalโs office authority to investigate alleged civil rights violations by law enforcement. It also requires body cameras at all police departments by 2025. Some larger departments are already required to use body cameras under the law.
The state Supreme Court had postponed the scheduled Jan. 1 implementation of pretrial detention provisions pending its ruling, which was issued Tuesday.
State Rep. Justin Slaughter, a Chicago Democrat who sponsored the 2021 measure in the House, said in a virtual news conference after Tuesdayโs court decision that the pretrial detention overhaul will addresses an โoverly punitive criminal justice systemโ for impoverished Illinoisans โ especially those in Black and brown communities.
Itโs a system, Slaughter said, that often forces innocent individuals to take plea deals โ and to accept a criminal record โ to obtain their freedom when they donโt have money to post bail.
โSo this is not about being tough or soft on crime,โ he said. โThis is about being smart on crime, reworking our system, streamlining our system to address those higher-level, more violent, dangerous alleged offenses. Itโs not about having someone unnecessarily sit in jail.โ
Legal arguments
While opponents of the new law have argued it will strain smaller court systems and hinder judicial discretion to detain individuals, the lawsuit centered on the meaning of two mentions of โbailโ in the Illinois Constitution and the interplay between branches of government.
The Supreme Court ruled on a set of consolidated cases filed against Illinois Attorney General Kwame Raoul, Gov. JB Pritzker and the stateโs Democratic legislative leaders by stateโs attorneys and sheriffs from over 60 counties.
The lawsuit specifically cited Article VIII of the state constitution, which states, โall personsโ accused of crimes โshall be bailable by sufficient sureties.โ Any changes to the language, the lawsuit argued, would require a constitutional amendment to be approved by voters.
While a Kankakee County judge ruled with the stateโs attorneys and sheriffs late last year, Chief Justice Mary Jane Theis, writing for the majority, said the lower court misinterpreted the state constitution..
โThe 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,โ she wrote.
She added that the โbailable by sufficient suretiesโ language in the current 1970 constitution mirrors the stateโs original 1818 constitution. Theis noted that when the 1818 version was written, the concept of monetary bail was โall but unknown.โ
Theis also noted the General Assembly first published โa comprehensive system concerning pretrial releaseโ in 1963 and has since amended bail regulations โmore than 20 times.โ
โIf the legislature could reconsider bail over the course of so many years, it could do so again in 2021 without offending separation of powers principles,โ Theis wrote.
The high courtโs two Republican justices dissented.
Justice David Overstreet, of the 5th District in southern Illinois, wrote that he believed the General Assemblyโs elimination of cash bail was โin direct violationโ of the constitution.
He said that was particularly true in reference to Section 8.1 of the Crime Victimsโ Bill of Rights, which notes that a crime victim and their family has a right for their safety to be considered โin denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.โ
Overstreet argued that eliminating cash bail would โnullifyโ that right, claiming that in bypassing a constitutional amendment, lawmakers โimpermissibly usurped the ultimate sovereign power in this state, i.e., the citizens.โ
โTherefore, this court has an absolute obligation to declare the pretrial release provisions of the Act to be invalid and unenforceable no matter how beneficial the abolishment of monetary bail may be,โ Overstreet wrote, joined by Justice Lisa Holder White.
Theisโ majority opinion, however, said that the pretrial release provisions โexpressly take crime victims into account.โ
โAs we have already mentioned, those provisions require a court to consider the โnature and seriousness of the real and present threat to the safety of any person or persons that would be posed by the defendantโs release,โ including crime victims and their family members,โ she wrote.
โPresumptionโ of pretrial release
The pretrial detention changes โ often referred to as the Pretrial Fairness Act, or PFA โ will create a โpresumptionโ in favor of pretrial release, meaning โthe state bears the burden of establishing a defendantโs eligibility for pretrial detention,โ Theis wrote.
Advocates say the intent of that provision is to divert lower-level nonviolent offenders from pretrial incarceration while giving judges authority to detain individuals accused of more serious crimes if they are deemed dangerous or at risk of fleeing prosecution.
Another facet of the reform entitles defendants to a more intensive first appearance in court. During that appearance, defendants will now have a right to legal representation and prosecutors can detail their reasons for continued detention.
The new hearings replace standard bail hearings, which often last less than five minutes and end with a judge deciding the conditions of release, including how much money the defendant must post to be released.
The list of offenses for which a judge can impose pretrial detention drew controversy following the lawโs 2021 passage, culminating in intensely hyperbolic and often misleading rhetoric amid the 2022 general election campaign.
In December 2022, lawmakers passed an amended version of the pretrial detention overhaul that expanded the list of crimes for which judges can order pretrial detention, adding hate crimes, felony animal torture, aggravated DUI causing bodily harm and other offenses if the defendant is deemed dangerous. More serious charges were eligible for detention in all versions of the bill.
Advocates for the bail reform have also noted that it gives judges greater authority to detain individuals accused of crimes such as domestic battery and violations of orders of protection prior to trial than does prior law.
Kaethe Morris Hoffer, the executive director of the Chicago Alliance Against Sexual Exploitation, spoke in favor of the reform at a virtual news conference Tuesday.
โI want to be clear โ safety and interests and voices of people who have endured rape and violence in the sex trade have never been prioritized when the criminal legal system is asked to make decisions about the liberty of people who are accused of serious crimes of violence. The PFA changes that,โ Hoffer said, referring to the pretrial detention overhaul.
While the new law directs law enforcement officers to cite and release anyone accused of a crime below a Class A misdemeanor, they would maintain discretion to make an arrest if the person is a threat or if making the arrest is necessary to prevent further lawbreaking.
Contentions continue
After the courtโs decision, Senate Republican Leader John Curran, of Downers Grove, issued a news release calling for a special session to clarify more parts of the bill in the 60 days before it takes effect. The proposed special session would need approval from Democratic legislative leaders or the governor, none of whom have publicly indicated support for the idea.
Curran said heโd support widening judicial authority to detain individuals accused of all felonies, including the crime of burglary.
Decemberโs amendment allows a judge to order detention for residential burglary or burglary โwhere there is use of force against another person.โ But simple burglary โ such as someone stealing change from a car or stealing from a business โ is still not detainable based on an offenderโs risk of danger to the community.
โThereโs no magic to the actual cash bail,โ Curran said in a phone interview. โBut to handcuff judges in the system we replace cash bail with is equally going to lead to bad outcomes.โ
Lake County Stateโs Attorney Eric Rinehart was one of two stateโs attorneys in Illinois who backed the SAFE-T Act alongside Cook County Stateโs Attorney Kim Foxx. He said in a virtual news conference Tuesday that the new law will give judges authority to incarcerate even non-violent offenders if they violate the conditions of pretrial release.
โI think something that got lost in the lies and misinformation from last fall was that people couldnโt be held at all, no matter what they did, after having been arrested for nonviolent offense,โ he said. โAnd thatโs simply not true.โ
While Foxx and Rinehart both noted they were preparing for months to implement the pretrial detention changes and have the resources to do so, Curran said he was worried about smaller counties being overburdened in implementing the law.
He noted that many smaller jurisdictions will lose revenue from cash bail payments when the system is eliminated โ a point that reform advocates have repeatedly noted shows a flaw in the system.
โWe have to look at how weโre going to fund our court system,โ Curran said. โAll the movements have been pulling money out of the courthouse, and weโre going to have to look for ways to actually make sure it is funded to implement this law.โ
State Sen. Robert Peters, D-Chicago, said at the virtual news conference that any calls for a special session were โmore about politics than policy.โ In the fall when considering the amendment, Peters said, lawmakers โhad extensive meetings with all sides,โ leading to the changes that brought some law enforcement groups to a point of neutrality.
(Reporting by Jerry Nowicki, Capitol News Illinois)
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of print and broadcast outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.
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SPRINGFIELD, Ill. (Capitol News Illinois) โ A landmark criminal justice reform that eliminates cash bail in Illinois is constitutional, the stateโs Supreme Court ruled Tuesday, paving the way for the change to take effect Sept. 18.
The 5-2 decision โ handed down on partisan lines โ means that an individualโs wealth will no longer play a role in whether they are incarcerated while awaiting trial. Judges can still order someone to be detained as they await trial, but the new system will be based on an offenderโs level of risk of reoffending or fleeing prosecution, rather than their ability to afford bail.
The list of offenses for which a judge can revoke pretrial release became a point of controversy in the two years following the lawโs 2021 passage until it was amended in late 2022. Ultimately, lawmakers settled on a system that aims to divert lower-level nonviolent offenders from pretrial incarceration while giving judges greater authority to detain individuals they deem dangerous or at risk of fleeing prosecution.
A group of stateโs attorneys and sheriffs challenged the lawโs constitutionality based on the fact that the Illinois Constitution directly references โbailโ in two sections, including one that states, โall personsโ accused of crimes โshall be bailable by sufficient sureties.โ
โThe 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,โ the majority wrote in their opinion. โOur constitution creates a balance between the individual rights of defendants and the individual rights of crime victims. The Actโs pretrial release provisions set forth procedures commensurate with that balance.โ
The high courtโs two Republican justices dissented. Justice David Overstreet, of the 5th District in southern Illinois, wrote in his dissent that he believed the General Assemblyโs elimination of cash bail was โin direct violationโ of the constitutionโs bill of rights and another section of the document pertaining to crime victimsโ rights.
โTherefore, this court has an absolute obligation to declare the pretrial release provisions of the Act to be invalid and unenforceable no matter how beneficial the abolishment of monetary bail may be,โ Overstreet wrote, joined by Justice Lisa Holder White.
The law was scheduled to take effect on Jan. 1 of this year, but on Dec. 31 the justices issued an order postponing its implementation until they had time to rule on the case. Their Tuesday ruling noted that their stay will be lifted in 60 days, on Sept. 18.
This story will be updated.
(Reporting by Jerry Nowicki, Capitol News Illinois)
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of print and broadcast outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.
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SPRINGFIELD, Ill. โ The Illinois Supreme Court says โcashless bailโ doesnโt violate portions of the Illinois State Constitution.
In a ruling posted Tuesday, four justices affirmed the decision, one specially concurred, and two dissented.
The opinion said that eliminating the stateโs bail system did not violate the rights of crime victims as outlined in the state constitution, or the separation of powers clause.
The order said an emergency stay issued in January will be lifted as of September 18th.
60 stateโs attorneys filed suit to try and stop the act, not including Peoria County.
CLICK HERE to read the full ruling (PDF).
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