Illinois will become the first state in the U.S. to halt the use of cash bail after the state Supreme Court on Tuesday upheld a law that was passed by the state legislature back in 2021. It will take effect in 60 days, on Sept. 18.
In a 5-2 ruling, the state’s highest court overturned a lower court’s earlier ruling that said the law was unconstitutional.
The elimination of cash bail was a provision of the SAFE-T ACT, a major criminal justice reform bill signed into law by Illinois Gov. J.B. Pritzker in early 2021. The portion of the bill eliminating cash bail had originally been slated to take effect on Jan. 1, 2023.
However, prosecutors and sheriffs in 64 counties filed lawsuits claiming the provision was unconstitutional. Last December, a Kankakee County judge ruled in their favor. The state appealed the district judge’s ruling, and the state Supreme Court subsequently put the measure on hold while it reviewed the case. It heard arguments in March.
Chief Justice Mary Jane Theis, writing for the majority, argued in her ruling Tuesday that the Illinois state 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,” but that it “creates a balance between the individual rights of defendants and the individual rights of crime victims.”
Justices David Overstreet and Lisa Holder White wrote in their dissent that the end to 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.”
Critics of the cash bail system say it unfairly punishes poor defendants, often forcing them to spend months or years in jail before they go on trial, even if they are not a danger to the public.
Under the new law, criminal defendants will not have to pay a specific amount to be released from jail as they await trial. However, they could be ordered to remain in custody if a judge believes they are a danger to the public, a risk of fleeing prosecution or are charged with a serious enough felony.
Illinois Attorney General Kwame Raoul, whose office defended the end to cash bail against multiple court challenges, said he was pleased, but not surprised, with the high court’s ruling.
“The court’s decision today holds — as my office has consistently advocated — that the General Assembly had the authority to eliminate cash bail and replace it with a system in which people are detained pending trial only if they pose a threat to the public or are a flight risk,” Raoul said in a statement.
Kankakee County State’s Attorney Jim Rowe, who spearheaded one of the major lawsuits against it, said in a statement Tuesday that “we must abide by the decision and will continue to do our best to serve the people of Kankakee County.”
The Illinois Fraternal Order of Police blasted the decision, saying it “confirms Illinois’ status as the state of lawlessness and disorder.”
When asked how many detainees could be released on Sept. 18, the Cook County public defender’s office told CBS Chicago it doesn’t have an exact number because there is no statewide centralized system collecting that data.
Republican John Curran, the state Senate’s minority leader, called on the Democratic-led state legislature to have a special session prior to Sept. 18 to make changes to the SAFE-T Act in an effort to address the concerns of police and prosecutors who have opposed the bail reforms.
“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,” Curran said in a statement. “It is possible to reform our cash bail system while keeping our communities safe and the legislature should return immediately to ensure that public safety is in no way jeopardized by the implementation of this reckless legislation before it takes effect.”
Other provisions of the SAFE-T Act, including body camera requirements for police departments and new police training mandates, already took effect as planned on Jan. 1.
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