Illinois Supreme Court halts abolition of cash bail hours before criminal justice reform was to take effect

The justices issued their order Saturday evening to maintain the status quo across the state while they review the new law’s constitutionality.

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Illinois Attorney General Kwame Raoul, pictured at a September 2021 news conference in the Loop.

Illinois Attorney General Kwame Raoul, pictured at a September 2021 news conference in the Loop.

Ashlee Rezin/Sun-Times

The Illinois Supreme Court halted the abolition of the cash bail system in the state on Saturday, just one day before that landmark criminal justice reform was poised to take effect.

The bail system overhaul — written into law as the Pretrial Fairness Act and the most controversial provision of the state’s widely scrutinized SAFE-T Act — was thrown off this week when a Kankakee County judge sided with authorities in 64 counties who sued to stop it from taking effect.

In his ruling, Chief Judge Thomas Cunnington wrote that “the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat.”

Illinois Attorney General Kwame Raoul on Friday appealed to the Illinois Supreme Court to overturn Cunnington’s decision, which would only have affected the counties that brought the suit.

Meanwhile, state’s attorneys in DuPage and Kane counties asked the top court to issue an order providing clarity with the state seemingly headed into the new year with more than half the state maintaining the old cash bail system and the remaining 38 counties — including Cook — ushering in a cashless bail era.

The state Supreme Court ordered on Saturday that the Pretrial Fairness Act won’t go into effect until further notice “in order to maintain consistent pretrial procedures throughout Illinois.”

It’s unknown how long the temporary stay will remain in place: The Supreme Court has not set a date to hear arguments on Raoul’s appeal and it wasn’t clear when the justices would take up the case.

A spokesman for the court said there would be an expedited briefing process for attorneys to file briefs before the justices will hear oral arguments.

Raoul said he appreciated the court’s haste to address the issue and said it was “important to note that the order issued today by the court is not a decision on the merits of the constitutionality of the SAFE-T Act.”

In a statement, Gov. J.B. Pritzker said he was confident the act would be found to be constitutional and looked forward to the justices’ review.

The Pretrial Fairness Act “reflects long overdue reforms that will make Illinois families safer and prevent violent offenders from being able to buy their freedom just because they are wealthy enough,” he said.

In a joint statement, DuPage and Kane counties state’s attorneys Robert Berlin and Jamie Mosser said: “We are very pleased with the Illinois Supreme Court’s decision. The equal administration of justice is paramount to the successful and fair administration of our criminal justice system.”

The bail reforms are just one part of the SAFE-T Act, a wide-ranging set of criminal justice reform measures signed into a law by Pritzker last year, 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.

But eliminating cash bail proved to be the most controversial piece. If it had taken effect, the Pretrial Fairness Act would have made Illinois the first U.S. state to completely eliminate cash bail.

Cook County Public Defender Sharone Mitchell said he was “disappointed that this historic and transformative law will not take effect as planned,” and called the lawsuit that led to the delay “frivolous.”

Under the reforms, judges would no longer be able to set a monetary bail that a person charged with a crime could post to be released while their case was pending, a system that critics of cash bail say is inherently unfair and a risk to public safety.

“With every passing day that money bond remains in place, Illinois will continue to punish people for being poor,” Illinois Network for Pretrial Justice said in a statement Saturday. “It is essential that the Supreme Court moves quickly to ensure the law’s full implementation and prevent any more Illinoisans from being forced to pay a ransom to free their loved ones from jail while they await trial.”

Under the Pretrial Fairness Act, judges would continue to be tasked with evaluating whether the defendant is a public threat or a flight risk and either order them released with conditions specified by the court or detained in jail.

But while supporters say it would make the justice system more equitable, opponents claim it could leave more dangerous people on the street.

Throughout this past election season, Republicans pounced on the Democratic-written SAFE-T Act and bail abolition, aiming to paint liberal opponents as soft on crime.

According to data from other jurisdictions that have already largely eliminated cash bail, defendants have continued to show up for their court dates at a high rate and largely haven’t picked up new charges while on release. Studies also appear to show that the elimination of cash bail does not have a significant impact on crime overall.

Read the Illinois Supreme Court’s order:

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