Illinois Supreme Court upholds law eliminating cash bail, sets Sept. 18 as start date for new system
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The Illinois Supreme Court on Tuesday cleared the way for the state to become the first in the nation to eliminate cash bail for criminal defendants awaiting trial, rejecting arguments from county prosecutors that the law violates the state constitution.
The 5-2 decision was split along party lines, with the two Republican justices, David Overstreet and Lisa Holder White, dissenting.
“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,” Chief Justice Mary Jane Theis wrote in the majority opinion. “Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims.”
Eliminating cash bail creates a system “commensurate with that balance,” the court ruled.
The justices gave trial courts 60 days to prepare for the new rules, with cash bail to be eliminated Sept. 18.
The court’s long-awaited ruling represents a victory for Democratic Gov. J.B. Pritzker, who faced fierce criticism over the policy from Republicans during his reelection campaign last year, including a barrage of sometimes misleading claims in TV ads and political mailers.
Pritzker made eliminating cash bail a priority during his first term and backed the Illinois Legislative Black Caucus in pushing its sweeping criminal justice overhaul in the wake of the police killing of George Floyd in Minneapolis in 2020.
“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,” Pritzker said in a statement Tuesday.
Republicans and some law enforcement groups condemned the ruling, which the Illinois Fraternal Order of Police said “confirms Illinois’ status as the state of lawlessness and disorder.”
The elimination of cash bail was part of the 764-page SAFE-T Act, which was signed into law by Pritzker in 2021 and includes a number of criminal justice measures meant to promote police accountability and create a more equitable court system.
The law also requires all police to wear body cameras by 2025 and creates a more robust system for decertifying officers who commit wrongdoing, among other changes. Those provisions were not affected by the legal challenges.
The bail portion of the law was set to take effect last Jan. 1, as lawmakers allowed counties a two-year ramp up to prepare for major procedural changes in how pretrial detention decisions are made.
The state Supreme Court stepped in New Year’s Eve with an eleventh-hour decision to halt implementation following a Dec. 28 ruling from a Kankakee County judge who found the measures were unconstitutional. That lower court ruling in a case that consolidated legal challenges from prosecutors in more than 60 mostly downstate counties led to confusion across the state about the decision’s impact.
The Supreme Court majority found that the trial court ignored the “plain language of the constitution” in multiple instances and that the prosecutors challenging the law did not meet the high legal bar for overturning a state statute.
“Statutes enjoy a strong presumption of constitutionality because the legislature is principally responsible for determining the public policy of our state,” Theis wrote.
The court rejected arguments that the elimination of cash bail would stymie the ability of courts to protect victims and their families, noting that the SAFE-T Act’s pretrial provisions take victims’ rights into account.
“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,’ ” Theis wrote.
In dissent, Justice Overstreet maintained that the end of cash bail is a “direct violation of the plain language of our constitution’s bill of rights and, more specifically, the vested rights of crime victims.” Overstreet wrote that Illinois law has long alluded to cash bail as “the primary means for a defendant to secure pretrial release in this state.”
“Throughout this period the legislature maintained the practice of defendants posting monetary bail to secure their pretrial release and maintained the circuit court’s corresponding duty to exercise its discretion in determining the ‘amount of bail,’ specifically in reference to monetary bail,” Overstreet wrote, with Holder White concurring.
Once the changes go into effect, judges will weigh the circumstances of each case and decide whether to release defendants with certain conditions or order them detained if the allegations meet certain thresholds.
Proponents of the controversial measure have said the reforms would right systemic wrongs and put an end to the incarceration of people for nonviolent charges only because they are too poor to post bail.
Detractors argued that it would allow too many dangerous criminals back on the streets, though studies in other jurisdictions that have reformed cash bail systems have generally not found high rates of recidivism for people released while awaiting trial.
While the majority of the prosecutors challenging the law are Republicans, two Democratic state’s attorneys — Kankakee County’s Jim Rowe and Will County’s James Glasgow — led the charge last fall with separate lawsuits.
The legal challenges came during a heated campaign season in which GOP challengers to Pritzker and Democratic Attorney General Kwame Raoul unsuccessfully sought to pin the blame for pandemic-era spikes in crime on the SAFE-T Act, even though its most controversial provision, the elimination of cash bail, had yet to take effect.
The high court heard arguments in the case in mid-March. Plaintiffs argued that the measure violates the separation of powers clause of the state constitution by allowing the General Assembly to take away the judiciary’s ability to set bail. They also argued that lawmakers should have sought a voter referendum on the issue to amend the constitution.
Lawyers with the Illinois attorney general’s office countered that the constitution holds no requirement for monetary bail and that lawmakers have long legislated courtroom issues.
Pritzker and other supporters have argued that the new policy will prevent people charged with violent crimes from being able to buy their freedom before trial because they have the means to make bail.
Under the new system, defendants will appear for two hearings: an initial hearing, also known as a conditions hearing, and, if prosecutors decide to pursue detention, another hearing designed to provide a more comprehensive look at whether someone should be released or detained pretrial.
Cook County Public Defender Sharone Mitchell said the high court’s decision means pretrial detention will be determined by “robust and individualized hearings.”
“This means that the decision on who goes to jail or who doesn’t will no longer rely on how much money your mother has, or your partner has, or your grandmother has, or your church has, or you have,” he said at a midday virtual news conference with other officials. “This will literally return tens of millions of dollars to communities that need it most.”
Cook County State’s Attorney Kim Foxx, who is not running for a third term, said “this moment standing on the right side of history is one that in my tenure as state’s attorney I am significantly, significantly proud.”
The SAFE-T Act passed the Democratic-controlled General Assembly without Republican support. Illinois Senate Republican leader John Curran on Tuesday called for a special legislative session to address the pretrial provisions’ “negative impact on the public’' before they go into effect in mid-September.
“While no person should be held in jail or let free because of their economic circumstances, the SAFE-T Act handcuffs law enforcement and judges making it more difficult for them to combat violent crime,” said Curran, of Downers Grove, a former Cook County assistant state’s attorney.
“Politically compelled public policy has never been in the best interest of the people,” House GOP Leader Tony McCombie of Savanna said in a statement. “Anyone that is familiar with the court system knows that this is not about the ability whether an offender can post bail, but a progressive movement to decriminalize crime and promote an environment for repeat offenders.”
Glasgow, the Will County state’s attorney, said the objective of the lawsuit “was never to stop principled bail reform, but to ensure our criminal justice system continues to protect the safety of the law-abiding citizens of Illinois from ruthless, violent criminals.”
Gray Noll, who heads the Illinois State’s Attorneys Association, said in a text message to the Tribune that prosecutors will “continue to do the job they were elected to do, make the community safer within the confines of the law.”
“It is certainly not Armageddon, but the SAFE-T Act does make it more difficult for state’s attorneys to do that job,” said Noll, the Republican state’s attorney for downstate Morgan County. Neither Noll nor the association was party to the lawsuit.
“No doubt, the implementation of the SAFE-T Act will make the job of prosecutors, judges and police more difficult,” Republican McHenry County State’s Attorney Patrick Kenneally, one of the plaintiffs, said in an email. “That said, we have no choice other than to accept the decision and move on.”
Kenneally also has sued the state over another of Pritzker’s signature policies: a sweeping ban on certain high-powered semi-automatic weapons and high-capacity ammunition magazines.
His case is pending in federal court, while a state Supreme Court ruling is still pending on a separate legal challenge to the gun ban brought by Republican state Rep. Dan Caulkins of Decatur.
The court heard arguments on that case in May after a lower court ruled the ban, prompted by the deadly mass shooting at Highland Park’s Fourth of July parade last year, violated the state constitution’s equal protection and special legislation clauses.
However, DuPage County State’s Attorney Robert Berlin, the lone Republican on a panel last year tasked with improving some of the pretrial provisions before they were originally supposed to go into effect in January, indicated that progress was made in the legislature in December in addressing many of the issues with the provisions. In a statement on Tuesday, Berlin said a system that allows judges to detain a person who they believe can pose a danger to the community — a key component of the pretrial provisions — is a positive thing.
“Such a system will improve public safety by ensuring that violent people are detained pretrial while those who are not a threat to the community are released,” he said.
