By JERRY NOWICKI
Capitol News Illinois
jnowicki@capitolnewsillinois.com

SPRINGFIELD – A landmark criminal justice reform that eliminates cash bail in Illinois is constitutional, the state’s Supreme Court ruled Tuesday, paving the way for the change to take effect Sept. 18. 

The 5-2 decision – handed down on partisan lines – means that an individual’s 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 offender’s level of risk of reoffending or fleeing prosecution. 

With the new law’s implementation, Illinois will become the first state in the U.S. to fully eliminate cash bail – 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 general’s 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 Tuesday’s court decision that the pretrial detention overhaul will addresses an “overly punitive criminal justice system” for impoverished Illinoisans – especially those in Black and brown communities.

It’s a system, Slaughter said, that often forces innocent individuals to take plea deals – and to accept a criminal record – to obtain their freedom when they don’t have money to post bail.

“So this is not about being tough or soft on crime,” he said. “This is about being smart on crime, reworking our system, streamlining our system to address those higher-level, more violent, dangerous alleged offenses. It’s not about having someone unnecessarily sit in jail.”

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 “bail” 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 state’s Democratic legislative leaders by state’s attorneys and sheriffs from over 60 counties.

The lawsuit specifically cited Article VIII of the state constitution, which states, “all persons” accused of crimes “shall be bailable by sufficient sureties.” 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 state’s attorneys and sheriffs late last year, Chief Justice Mary Jane Theis, writing for the majority, said the lower court misinterpreted the state constitution..  

“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,” she wrote.

She added that the “bailable by sufficient sureties” language in the current 1970 constitution mirrors the state’s original 1818 constitution. Theis noted that when the 1818 version was written, the concept of monetary bail was “all but unknown.”

Theis also noted the General Assembly first published “a comprehensive system concerning pretrial release” in 1963 and has since amended bail regulations “more than 20 times.”

“If 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,” Theis wrote.

The high court’s two Republican justices dissented.

Justice David Overstreet, of the 5th District in southern Illinois, wrote that he believed the General Assembly’s elimination of cash bail was “in direct violation” of the constitution.

He said that was particularly true in reference to Section 8.1 of the Crime Victims’ Bill of Rights, which notes that a crime victim and their family has a right for their safety to be considered “in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.”

Overstreet argued that eliminating cash bail would “nullify” that right, claiming that in bypassing a constitutional amendment, lawmakers “impermissibly usurped the ultimate sovereign power in this state, i.e., the citizens.”

“Therefore, 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,” Overstreet wrote, joined by Justice Lisa Holder White.

Theis’ majority opinion, however, said that the pretrial release provisions “expressly take crime victims into account.”

“As we have already mentioned, those provisions require a court to consider the ‘nature and seriousness of the real and present threat to the safety of any person or persons that would be posed by the defendant’s release,’ including crime victims and their family members,” she wrote.  

‘Presumption’ of pretrial release

The pretrial detention changes – often referred to as the Pretrial Fairness Act, or PFA – will create a “presumption” in favor of pretrial release, meaning “the state bears the burden of establishing a defendant’s eligibility for pretrial detention,” 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 law’s 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.  

“I want to be clear – 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,” 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 court’s 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 he’d support widening judicial authority to detain individuals accused of all felonies, including the crime of burglary.

December’s amendment allows a judge to order detention for residential burglary or burglary “where there is use of force against another person.” But simple burglary – such as someone stealing change from a car or stealing from a business – is still not detainable based on an offender’s risk of danger to the community.

“There’s no magic to the actual cash bail,” Curran said in a phone interview. “But to handcuff judges in the system we replace cash bail with is equally going to lead to bad outcomes.”

Lake County State’s Attorney Eric Rinehart was one of two state’s attorneys in Illinois who backed the SAFE-T Act alongside Cook County State’s 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.

“I think something that got lost in the lies and misinformation from last fall was that people couldn’t be held at all, no matter what they did, after having been arrested for nonviolent offense,” he said. “And that’s simply not true.”

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 – a point that reform advocates have repeatedly noted shows a flaw in the system.

“We have to look at how we’re going to fund our court system,” Curran said. “All the movements have been pulling money out of the courthouse, and we’re going to have to look for ways to actually make sure it is funded to implement this law.”

State Sen. Robert Peters, D-Chicago, said at the virtual news conference that any calls for a special session were “more about politics than policy.” In the fall when considering the amendment, Peters said, lawmakers “had extensive meetings with all sides,” leading to the changes that brought some law enforcement groups to a point of neutrality.

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.