Illinois set to be first state to end cash bail after state Supreme Court ruling
Illinois is set to become the first state in the nation to eliminate cash bail after the state Supreme Court ruled Tuesday that a landmark criminal justice reform law did not violate the state’s constitution.
The opinion was released more than six months after the Pretrial Fairness Act was halted by the justices just hours before it was to go into effect Jan. 1 in response to legal challenges. The high court said the law should now go into effect in September.
In its 5-2 ruling, the court said the state’s constitution “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. 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 majority rejected claims that the Legislature had overstepped its authority by eliminating bail through the act, writing that “the legislature has long regulated the bail system.”
The court’s only two Republican justices dissented, saying “the legislature’s abolishment of monetary bail is in direct violation of the plain language of our constitution’s bill of rights and, more specifically, the vested rights of crime victims. ... 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.”
The bail system overhaul was one of the most controversial provisions of the widely scrutinized SAFE-T Act, a major bill that mandated wide-ranging reforms to policing, court proceedings and victims’ rights in the state.
The court’s ruling stems from a flurry of lawsuits last year brought by roughly 60 sheriffs and state’s attorneys who argued that eliminating cash bail would reduce public safety, put law enforcement in harm’s way and violate the state’s constitution.
In December, Kankakee County Chief Judge Thomas Cunnington agreed with the groups and ruled the cash bail provision unconstitutional, though his ruling would have only applied to counties that had sued.
An appeal by Illinois Attorney General Kwame Raoul sent the matter to the state Supreme Court, and the justices ordered that the entire Pretrial Fairness Act wouldn’t go into effect until further notice “in order to maintain consistent pretrial procedures throughout Illinois.”
In the ruling Tuesday, Chief Judge Mary Jane Theis said Cunnington’s decision ignored the plain language of the bail clause in the state’s constitution, which never included the term “monetary, so does not cement the practice of monetary bail, however long-standing and prevalent across Illinois, into our constitution.”
Raoul released a statement Tuesday morning saying “someone’s experience with the criminal justice system should not vary based on their income level. The SAFE-T Act was intended to address pervasive inequalities in the criminal justice system, in particular the fact that individuals who are awaiting criminal trials — who have not been convicted of a crime and are presumed innocent — may spend extended periods of time incarcerated because they cannot afford to pay cash bail.”
Cook County State’s Attorney Kim Foxx, who supported the bail reform, said the ruling “is a monumental milestone toward achieving equal justice for all in Cook County and Illinois. ... Ending cash bail is in line with our values and is a critical step toward economic and racial justice in Cook County and Illinois.”
But McHenry County State’s Attorney Patrick Kenneally, an opponent of the bail act, called the ruling ”a sad reflection of state of ideological capture in our three branches of government. ... We at the state’s attorney’s office will continue to do everything within our power to ensure that dangerous offenders remain behind bars pre-trial or that other measures, such as electronic monitoring, are in put in place to minimize risk.”
Despite a two-year ramp-up before bail reform was to go into effect, opponents waited until late last year to mount a serious effort to overturn the law, as well as a political pressure campaign before last year’s statewide elections.
In the weeks before the election, opponents derided the SAFE-T Act as a “purge law” and claimed it would make the state — with a particular focus on Chicago — less safe by releasing more violent criminals to prey on the public.
Supporters of the Pretrial Fairness Act said its provisions would simply remove cash bail as a condition that could be set by a judge when considering whether someone was likely to return to court for their hearings or posed a danger to the public.
Studies of jurisdictions that have nearly eliminated cash bail have shown no significant increase in crime generally, nor by defendants released while awaiting trial. In some cases, defendants were more likely to return to court.
The elimination of cash bail does not mean people charged with crimes cannot be held in custody pending trial.
Under the act, the courts will continue to hold detention hearings for people accused of serious crimes to determine whether someone poses a safety risk if released and whether someone is likely to show up for their hearings — the same considerations that now often determine cash bail.
People charged with misdemeanors and other minor offenses will be released without bail or pretrial conditions. In more serious cases that meet standards where a person can be held in custody, prosecutors will be required to request a person be detained and make arguments on public safety and the risk of flight.
In cases where prosecutors seek to hold a person in custody, the defendant’s attorneys will be given more time to prepare for the hearing.
The decision on whether a person should continue to be held in custody pretrial can also be revisited by the court at future hearings.
Cook County had planned to move forward with bail reform on Jan. 1 until the justices halted its implementation. ”I feel very confident that we will be ready to go in 60 days,” Pretrial Division Presiding Judge Marubio said Tuesday.
Until Sept. 18, judges will continue to set bail in cases in Cook County, just as they had been doing up until Dec. 31, Marubio said.
DuPage County State’s Attorney Robert Berlin, the lone Republican appointee on a state Senate panel that recommended revisions to the bail reforms in the SAFE-T Act last fall, said changes adopted in the December veto session largely addressed “glaring deficiencies” and expanded judges’ discretion to detain defendants who might pose a danger to the public if released.
Berlin did not join the lawsuit that led to Supreme Court case because of the potential conflict with his role on the panel.
“At this point, I would say (the public) shouldn’t be panicked,” Berlin told the Sun-Times. “With the amendement (passed in December) I am confident that violent criminals are going to be detained.”
Berlin said he expected an influx of defendants seeking hearings when the law takes effect, and that his office will petition judges to hold any person his office deems a threat to public safety.
He also noted that even multimillion-dollar bail amounts are not a guarantee of safety. “I have seen people put up $200,000 and walk out of jail on a $2 million bond,” he said.
Berlin said he and his fellow state’s attorneys planned a conference call Tuesday afternoon to discuss options, but personally he felt that another lawsuit was not likely. “I think we need to move forward with the General Assembly and use the legislative process,” he said. “At this point, I’m not sure legally what else there is to do.”
Berlin said he would advocate for changes that would make the act resemble bail statutes in New Jersey, which largely did away with cash bail in 2017. New Jersey’s laws allow judges to set a cash bail when prosecutors show “clear and convincing evidence” people are likely to flee, threaten or intimidate others if set free before trial, or otherwise pose a threat to safety.
Harold Krent, a professor at IIT-Kent Law School who has studied the separation of powers, agreed there likely is no path for further challenges in the courts.
“There is no traditional injury they can point to that is going to get them through the doors of federal court,” he said. “This is a case where a state law was found constitutional under the state constitution. I’m not sure what their federal claim would be.”
The bail reforms were just one part of the SAFE-T Act, some of which have already taken effect. Other measures include requiring all police departments to equip officers with body-worn cameras by 2025, expanding services for victims of crimes and changing how people who are incarcerated are counted for redistricting maps.
Many Republican candidates made the SAFE-T Act a focus of law-and-order campaigning last year, but Democrats held off most challengers in what was expected to be a bruising midterm election for the party across the country and even expanded their majority on the state Supreme Court.
The elections of justices Elizabeth Rochford and Mary Kay O’Brien were believed to be significant to preserving Illinois’ strong abortion protections, as well as the future of the SAFE-T Act. Both justices sided with the majority of the court.
Justices Lisa Holder White and David Overstreet, the high court’s only Republicans, joined in the dissent.
Source: Chicago Sun-Times
