The Illinois Supreme Court on July 18 upheld the Pre-trial Fairness Act that eliminates cash bail for criminal defendants awaiting trial.
The landmark decision makes Illinois the first state in the nation to halt the use of cash bail.
“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,” Supreme Court Chief Justice Mary Jane Theis said in the court’s opinion.
“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.”
The law will go into effect in the state on September 18.
Gov. J.B. Pritzker approved of the state Supreme Court’s decision.
“We can now move forward with historic reform to ensure pretrial detainment is determined by the danger an individual poses to the community instead of by their ability to pay their way out of jail,” the Democrat said in a statement.
Under the new law, criminal defendants will not have to pay a specific amount to be released from jail as they await trial. However, judges can decide that a defendant poses too much of a threat to the community to allow release, or that the defendant can be released with conditions such as avoiding contact with a particular person or not visiting a certain place, according to the Bail Project.
Proponents of eliminating cash bail describe it as a penalty for the poor, 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. Supporters also said the change will make the criminal justice system more fair for defendants and victims alike.
“Someone’s experience with the criminal justice system should not vary based on their income level,” said Illinois Attorney General Kwame Raoul, who defended the SAFE-T Act.
Critics warn that violent criminals will be released pending trial, giving them license to commit other crimes.
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 fiat.
Kankakee County State’s Attorney Jim Rowe, the lead plaintiff in the lawsuit, called the ruling “terribly detrimental to public safety” but pledged to abide by it.
The Illinois Fraternal Order of Police said the decision “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. Many of those offenders will commit crimes again within hours of their release,” Illinois FOP State Lodge President Chris Southwood said in a statement.
“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.”
In spring 2020, the Illinois Supreme Court Commission on Pretrial Practices strongly endorsed bail reform, noting it found that a defendant who can’t afford bail sees his or her life unravel within days—loss of a job, loss of child custody, health problems without access to medication.
What’s more, the commission found that it tends to generate spurious plea deals. Defendants reason that pleading to a lower-level offense gets them out of jail sooner.
Critics have argued that bail is a time-honored way to ensure defendants released from jail show up for court proceedings.
