Illinois Supreme Court upholds law eliminating cash bail
A landmark criminal justice reform that eliminates cash bail in Illinois is constitutional, the state’s Supreme Court ruled Tuesday, paving the way for the change to take effect Sept. 18.
The 5-2 decision – handed down on partisan lines – means that an individual’s wealth will no longer play a role in whether they are incarcerated while awaiting trial. Judges can still order someone to be detained as they await trial, but the new system will be based on an offender’s level of risk of reoffending or fleeing prosecution, rather than their ability to afford bail.
McLean County reaction
WGLT is working to get reaction from McLean County stakeholders to Tuesday's ruling.
"Here in McLean County, we were fully prepared to implement the act before the (Illinois) Supreme Court put it on hold," Eleventh Judicial Circuit chief judge Casey Costigan told WGLT. "We are fully prepared to move forward with things on Sept. 18."
McLean County State's Attorney Erika Reynolds and former Sheriff Jon Sandage, both Republicans, were among those in law enforcement who challenged the law’s constitutionality.
Reynolds called the decision "disappointing" in a statement.
"As a party to the lawsuit and a member of this community, I remain steadfast in my original concerns for the safety of the community and the lack of consideration for crime victim’s rights under the SAFE-T Act provisions," Reynolds said. "Even under those provisions, the McLean County State’s Attorney’s Office will do everything in our power to best serve the citizens of McLean County while protecting victim’s rights."
The Bloomington Police Department said it will "continue working with the McLean County State's Attorney's Office and other stakeholders to ensure our agency is prepared upon the SAFE-T Act implementation."
“Required procedural changes were identified and training completed after the Act was passed. However, due to the delay in the Act’s implementation our officers will receive refresher training and the necessary procedural changes will be implemented to ensure that we are operating in accordance with the law,” said Bloomington Police Chief Jamal Simington. “Our women and men will continue working with the community to uphold the law and improve the quality of life in Bloomington.”
McLean County public defender Ron Lewis said he is unavailable for comment.
Advocates who have lobbied for an end to cash bail say the court's ruling will not lead to more violent criminals on the streets, as its critics allege.
Candice Byrd, a leader with Black Lives Matter Bloomington-Normal and member of the Illinois Network for Pretrial Justice, called it an unrealistic perception that judges will release violent criminals from custody while awaiting trial.
“Reducing the pretrial incarceration has brought us to a closer future where communities are going to be much safer and people are actually going to be supported during this time,” Byrd said.
Byrd said no-cash-bail advocates will be watching to make sure judges don't go too far in holding some defendants.
The law allows judges to deny pre-trial release for certain offenses such as domestic battery and stalking or if a judge believes the defendant poses a threat to the community or to another person.
Local lawmaker reaction
State Rep. Dennis Tipsword told WGLT he's disappointed in the ruling. Tipsword is also chief deputy of the Woodford County Sheriff's Department. The Metamora Republican's 105th House District includes northeast Normal and communities such as Towanda, Lexington and El Paso.
"We took an oath to serve and protect. We will still find a way to protect our communities after Sept. 18 but it just won't be the way it is today. That's clear now after today's ruling. We will find a way to go on. Now what that will look like remains to be seen," said Tipsword.
Tipsword said the tight two-month deadline to implement the law will require courts and police agencies to scramble to flesh out outlines for new procedures that until now were hypothetical.
State Senate Republican Leader John Curran called for a special session to address flaws in the SAFE-T Act following the court decision. Tipsword said he was part of a House Republican working group that made more than 20 proposals to tweak the act during the spring session. Those went nowhere in the Democratic-controlled chamber.
"At that point in time we were not trying to gut and replace the SAFE-T Act, I guess you could say. We were just trying to make some working changes to it, and we were not even heard on that. So I am not optimistic at all on that," said Tipsword.
Gov. JB Pritzker said he was pleased with the ruling.
“We can now move forward with historic reform to ensure pre-trial detainment is determined by the danger an individual poses to the community instead of by their ability to pay their way out of jail," Pritzker said in a statement. "My thanks to Attorney General Raoul’s office and the many people who worked tirelessly over the last months to defend these important reforms. I look forward to continuing to work with the General Assembly and our many other partners as we transition to a more equitable and just Illinois.”
U.S. Rep. Darin LaHood, a Republican who represents parts of Bloomington-Normal, also criticized the ruling Tuesday.
"Under Governor J.B. Pritzker, Illinois has become less safe and violent crime is on the rise," LaHood said in a statement. "Instead of giving law enforcement the tools they need to go after criminals, Governor Pritzker’s soft-on-crime policies, like ending cash bail, hinder cops from keeping communities safe. With morale of law enforcement at an all time low in Illinois, police departments across our state are struggling to recruit officers because of policies like the SAFE-T Act. The Illinois Supreme Court’s ruling is misguided, it will harm law enforcement, and make Illinois less safe."
Legal history and the court's ruling
The list of offenses for which a judge can revoke pretrial release became a point of controversy in the two years following the law’s 2021 passage until it was amended in late 2022. Ultimately, lawmakers settled on a system that aims to divert lower-level nonviolent offenders from pretrial incarceration while giving judges greater authority to detain individuals they deem dangerous or at risk of fleeing prosecution.
A group of state’s attorneys and sheriffs challenged the law’s constitutionality based on the fact that the Illinois Constitution directly references “bail” in two sections, including one that states, “all persons” accused of crimes “shall be bailable by sufficient sureties.”
“The Illinois Constitution of 1970 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,” the majority wrote in their opinion. “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 high court’s two Republican justices dissented. Justice David Overstreet, of the 5th District in southern Illinois, wrote in his dissent that he believed the General Assembly’s elimination of cash bail was “in direct violation” of the constitution’s bill of rights and another section of the document pertaining to crime victims’ rights.
“Therefore, 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,” Overstreet wrote, joined by Justice Lisa Holder White.
The Illinois Network for Pretrial Justice (INPJ) celebrated the ruling, calling cash bail “one of the most glaring injustices in our criminal justice system.”
“We are excited to work with stakeholders across Illinois to reduce pretrial jailing and build safer communities,” the group said in a statement, which was shared by Black Lives Matter Blono.
INPF predicts ending cash bail will reduce crime, by enabling defendants awaiting trial to continue to work, maintain housing and custody of their children.
“Ending wealth-based jailing will ensure that families are no longer forced to forego paying rent or to pool funds together to free their loved ones from county jails and will keep desperately needed resources in our communities,” the group’s statement added.
The law was scheduled to take effect on Jan. 1 of this year, but on Dec. 31 the justices issued an order postponing its implementation until they had time to rule on the case. Their Tuesday ruling noted that their stay will be lifted in 60 days, on Sept. 18.
This story will be updated.
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of print and broadcast outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.