Illinois set to be first state to end cash bail after state Supreme Court ruling

Landmark criminal justice reform isn’t unconstitutional, should take effect in September, justices ruled Tuesday.

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The George N. Leighton Criminal Courthouse at 2650 S California Ave in Little Village, Monday, May 9, 2022.

The George Leighton Criminal Courthouse at 2650 S. California Ave. in Little Village, pictured in May 2022.

Anthony Vazquez/Sun-Times file

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.

While other states have implemented similar reforms with varying degrees of success, Illinois will be the only one to completely do away with having to pay money to get released from jail.

The high court’s 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 lawmakers had overstepped their authority by eliminating bail, 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.

It sparked a flurry of lawsuits last year 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 not 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 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 and Public Defender Sharone Mitchell also released statements praising the court’s decision.

But McHenry County State’s Attorney Patrick Kenneally, an opponent of the bail act, called the ruling ”a sad reflection of the 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 pretrial or that other measures, such as electronic monitoring, are put in place to minimize risk.”

DuPage County State’s Attorney Robert Berlin was the lone Republican appointee on a state Senate panel that recommended revisions to the bail reforms in the SAFE-T Act last fall. He said the 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 lawsuits that led to the Supreme Court ruling 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 amendment [passed in December] I am confident that violent criminals are going to be detained.”

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.

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.

In the weeks before the last fall’s 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.

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.

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