Just hours before a law to end cash bail in Illinois was due to take effect on January 1, the state’s Supreme Court suspended it. The decision followed a legal challenge filed by over half of the state’s counties. As supporters of the reform conduct an appeal, the law’s future is in question—and with it, the fates of thousands of defendants held in jail each year for being unable to afford bail.
Illinois Governor JB Pritzker (D) had originally signed the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act in February 2021. This package of criminal justice reform bills includes numerous policing measures, to increase accountability, ban chokeholds and the purchase of military equipment, and more. It also included the Pretrial Fairness Act, to phase out cash bail until ending it in 2023.
People arrested and charged would no longer be required to pay money bail to get out of jail while awaiting trial. Instead, courts would have to demonstrate that someone should remain in jail based on the severity of the charge, their perceived risk of skipping court, or other factors.
The law sets the bar for detaining a defendant higher by requiring courts to put in writing, at each court date, why they think it is necessary. The law also makes changes to use of electronic monitoring bracelets, requiring courts to demonstrate that a defendant poses a clear danger; and every day under home confinement would be counted as credit towards a future sentence.
“It is high time that Illinois abolish a system that punishes people—most of them Black and Brown—for being poor.”
Amid political controversy over the legislation, Gov. Pritzker signed lawmakers’ amendments in December 2022. These set the timelines between arrest and trial, allowed judges to order detention for a greater number of charges, and added a requirement that prosecutors give evidence if they believe a defendant threatens public safety.
Advocates have long protested how the cash bail system means people are detained or released based purely on their ability to pay—in other words, punishing poverty. Many thousands of people in Illinois have been penalized in this way. In Cook County alone (which contains Chicago), about 2,600 people were kept in jail in 2019 because they couldn’t afford bail or didn’t have a home to qualify for electronic monitoring.
“Money bond is a deplorable practice, and it is high time that Illinois abolish a system that punishes people—most of them Black and Brown—for being poor,” stated the Cook County Public Defender’s Office.
Nationwide, about 400,000 people are detained pretrial at any moment, legally presumed innocent. Pretrial detention has exploded in recent decades, and one third of people currently incarcerated are held in county or city jails.
Appeal Against “Unconstitutional” Ruling
Despite the passage of the recent amendments to the Illinois legislation, political and legal opposition to ending cash bail continued. Sixty-five of the state’s counties sued to stop the law taking effect. And on December 28, the 21st Circuit Court judge in Kankakee County ruled the law to be unconstitutional. It was deemed to violate sections of the state consitution including the Separation of Powers clause, the Victims Rights Act and a line stating that “All persons shall be bailable by sufficient sureties.”
“In our organization’s analysis of the law, the question around the constitutionality of the decision rests on the definition of what it means to be ‘bailable’,” Meghan Guevara, executive partner of the Pretrial Justice Institute, which supports the law, told Filter. “It’s also a common misuse of the term that bail equals money; what it means in terms of legal history and how it’s defined in federal law is that bail is a right to consideration for pretrial release.”
Advocates’ hopes now rest on an appeal against the Circuit Court judge’s decision, filed by the office of the Illinois Attorney General.
The Circuit Court judge’s decision didn’t affect the state’s 37 counties that did not sue. So the ruling would essentially have created two sets of rules for Illinois residents based on location.
And it was that prospect of the law being applied unequally in different counties—rather than the constitutional merits of the law itself—that led to the Illinois Supreme Court putting it on hold for the entire state on December 31. The court stated that it was suspending the Pretrial Fairness Act “in order to maintain consistent pretrial procedures throughout Illinois.”
Supporters of the law have vowed to fight on.
“We have worked tirelessly for the last few years to implement a system that prioritizes safety over wealth, ensuring that those who are presumed innocent are treated as such,” said State Senator Robert Peters (D) in a statement shared with Filter. Peters filed the original Senate bill that ultimately led to the current legislation. “Despite the opposition, I remain dedicated to this cause, and I am prepared to keep fighting for equity and justice in our state systems, regardless of the outcome. Our communities deserve better.”
Advocates’ hopes now rest on an appeal against the Circuit Court judge’s decision, filed by the office of Illinois Attorney General Kwame Raoul. The state Supreme Court has said it will expedite the appeal process, and AG Raoul promised to “[mount] a robust defense of the constitutionality of the law and [ensure] that it goes into effect across the state.”
“At the end of the day, money bond is a practice of racial oppression.”
Nationwide, measures to eliminate cash bail continue to be attacked, but advocates can point to their effectiveness. For example, a New Jersey law that ended cash bail in favor of a “risk-based” system slashed jail populations, while rates of recidivism and court appearances remained stable.
“At the end of the day, money bond is a practice of racial oppression,” Guevara said. “There’s a lot of these practices that persist, that continue to be upheld and supported when reforms are put in place. We know this is going to continue to be a fight—but we also have examples we can look to that show these policies work.”
Photograph via PublicDomainPictures.net