No, the jail doors won’t open Jan. 1. Here’s what to know about end of cash bail in IL

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When cash bail ends on Jan. 1 in Illinois, what happens to the people who were already being held in jail on bond? And what will it mean for people who are accused of a crime in the new year?

Bail reform is part of state legislation known as the Safety, Accountability, Fairness and Equity-Today Act, or SAFE-T Act.

With three months until it takes effect, people working in and around the court system are raising questions about implementation based on its wording — what it says and what it doesn’t mention at all.

The law is the subject of more than 20 lawsuits from prosecutors across the state seeking to alter or repeal it. And legislators have suggested they will make changes to it as they prepare to return to Springfield for November’s veto session.

Here’s what to know about the end of cash bail in Illinois, including some of the main questions state officials are discussing:

What is cash bail and why is it being abolished?

Bail has to do with detaining people accused of crimes in a county jail before their trials. Under a cash bail system, people can be released from jail if they pay an amount of money set by a judge known as a bail bond.

The intent of the SAFE-T Act is to detain people accused of crimes only if they are considered a danger to others or a flight risk. Opponents say they fear the new system could make communities unsafe. Supporters of the new law say that, with a cash bail system, people could be unnecessarily jailed because they can’t afford to pay bond.

A nonpartisan task force helping to implement the changes has also highlighted research on the effects of detaining someone in jail during a town hall meeting on the SAFE-T Act. The group is called the Illinois Supreme Court Pretrial Implementation Task Force.

“Even if a person is only arrested and goes in for a day or two days, that can be very disruptive and in some cases can result in a person losing their job. It can result in somebody not being able to see their kids,” Kane County Chief Judge Clint Hull, a task force member, said during the July town hall.

“And ultimately, what the research has demonstrated over time is that people who end up detained, even for a limited period of time, are likely to have worse outcomes that are worse for them but are also worse for us. The data shows that when a person is detained, it actually increases the risk that the person is going to commit new offenses, not decrease.”

Will people held in jail on bond be released when cash bail ends Jan. 1?

No, they won’t be automatically released because the law doesn’t say that it should be applied retroactively to people charged with crimes before Jan. 1.

This could be an area of the law that legislators change in November. One proposal put forward by State Sen. Scott Bennett, D-Champaign, would clarify that the law applies to anyone charged on or after Jan. 1.

If a decision doesn’t come from the General Assembly, it could come from an Illinois judge, according to Robbin Stuckert, a retired judge and chairperson of the Pretrial Implementation Task Force.

“The legislation is silent as to retroactivity, and when a statute is silent, it is incumbent upon a judge or judiciary through a motion to make that determination,” Stuckert said during a town hall meeting in June. She added that a judge’s decision would also be subject to review.

Who can be held in jail before their trial, starting Jan. 1?

Prosecutors have filed lawsuits arguing they don’t have clarity on this question, including Madison County State’s Attorney Tom Haine.

Here’s a look at what the law says:

One sentence in the 764-page law sums up its intent: “Detention only shall be imposed when it is determined that the defendant poses a specific, real and present threat to a person, or has a high likelihood of willful flight.” The law says “threat” can include but is not limited to injury or intimidation, and willful flight means planning or attempting to intentionally evade prosecution.

But prosecutors, including Haine, have pointed out that the law also places limits on when they can argue a person is a public safety threat.

The law states: “Pretrial release (awaiting trial from home rather than a jail cell) may only be denied when a person is charged with an offense listed in Section 110-6.1 or when the defendant has a high likelihood of willful flight.”

The law details three categories of offenses, according to the Loyola University Chicago Center for Criminal Justice Research:

  • Forcible felonies that would require prison time if the person were convicted. Examples include first-degree murder, armed robbery, home invasion, aggravated vehicular hijacking, aggravated battery with great bodily harm and sex offenses.

  • Weapon offenses, such as illegal firearm possession, unlawful discharge of a firearm and unlawful sale/delivery of a firearm.

  • Domestic violence offenses and violations of orders of protection.

Loyola is conducting research to estimate the potential effects the law will have. It will also later study the process and effects of the first year’s implementation.

Second-degree murder, robbery, burglary, arson, kidnapping and aggravated battery are crimes often cited by the SAFE-T Act’s critics, who argue people accused of those offenses won’t be jailed starting next year.

But there are circumstances when people charged with those crimes could be detained before their trials, including if a prosecutor argues they are a flight risk or if they are alleged to have used a gun during the commission of the crime.

Political mailers designed to look like newspapers are helping to spread misleading information about this list of crimes in neighborhoods and across social media.

Prosecutors can make the flight risk argument about anyone charged with a Class 3 felony or more serious felony offense.

Second-degree murder is a Class 1 felony. Robbery, arson and kidnapping are Class 2 felonies. Burglary and aggravated battery can be classified as more or less serious — Class 3 at the lowest — depending on the circumstances.

Citizens and officials across the state have expressed concern that the end of cash bail could make communities less safe. Loyola University recently published research that challenges the assumption the system keeps dangerous people behind bars.

Researchers found that under the current cash bail system, most people don’t await trial in jail. In the 20th Judicial Circuit, which includes St. Clair, Monroe, Randolph, Washington and Perry counties, they estimated:

  • 16% of people with pending felony cases at year-end between 2017 and 2019 were in jail custody.

  • 4.7% were at home with supervision such as electronic monitoring.

  • 79% were at home with no supervision.