No Cash Bail in the Land of Lincoln

What just happened?

It only took 896 days after its passage, but the Illinois Supreme Court finally upheld the constitutionality of the “no cash bail” provisions of the SAFE-T act. The act is an extensive package of changes to the criminal justice system including bail reform, police reform, and sentencing reform.  The full opinion is found here.

This decision means that the largest bail reform effort in the nation finally has the green light and all courts in all 102 Illinois counties must comply with the requirements of the no cash bail requirements by September 18, 2023. 

While the majority opinion, concurrence, and dissent spend quite a bit of time discussing the proper standing for the plaintiffs to have brought the case, the legal analysis of the case is pretty simple. The Illinois State Constitution gives crime victims a constitutionally protected right to have their safety, and the safety of their family, considered in “denying or fixing the amount of bail.” The question is—if there can be no monetary bail, how can the safety of a victim be considered in setting the “amount” of bail? In short, the 5 judges in the majority don’t interpret “the amount of bail” as necessarily relating to money and the 2 dissenting judges do. Since 5 is more than 2, Illinois is now a no-bail state.

What are the new bail rules in Illinois?

The court summarizes the new normal as follows:

The [SAFE-T] Act’s pretrial release provisions center on the abolition of monetary bail. (“the requirement of posting monetary bail is abolished”). Instead of monetary bail, the Act’s pretrial release provisions, as amended by the Follow-Up Act, establish a default rule that all persons charged with an offense shall be eligible for pretrial release on personal recognizance, subject to conditions of release that the trial court deems appropriate, such as electronic monitoring or home supervision. Although the Act eliminates monetary bail and provides that “[a]ll persons charged with an offense shall be eligible for pretrial release before conviction”, the pretrial release provisions allow the State to seek, and the trial court to order, pretrial detention of criminal defendants in certain specified cases. The court may order a defendant detained pending trial if the defendant is charged with any of an array of enumerated felony offenses and “poses a real and present threat to the safety of any person or persons or the community.” The court may also order a defendant detained pending trial, if the defendant has been charged with an enumerated offense or any felony “other than a Class 4 offense” and if the court concludes there is “a high likelihood of willful flight to avoid prosecution.” Under this new statutory scheme, “[a]ll defendants shall be presumed eligible for pretrial release,” and the State bears the burden of establishing a defendant’s eligibility for pretrial detention. [citations removed]

Put more succinctly, the requirement of cash bail is abolished and all persons charged are eligible for pretrial release subject to conditions deemed appropriate by the court (including, but not limited to electronic monitoring or home supervision). However, the court may order pretrial detention depending on the offense charged and 1) a real and present threat to the safety of another or 2) a high likelihood of willful flight to avoid prosecution. The burden of proof for any pretrial detention lies with the state. 

What does it mean?

To say this represents a massive change to the pre-trial process is an understatement. In Illinois, between 200,000-300,000 individuals are admitted to jail on an annual basis (mostly only for a brief period) with a daily census around 15,000.

Traditionally, most counties have not had the resources to operate a formal pretrial supervision program. Less than 20,000 defendants were enrolled in some form of pretrial supervision prior to 2022.

Illinois has a new Office of Statewide Pretrial Services, but that office is still in the implementation phase as it expects to provide electronic monitoring for between 500-750 defendants across the state for all of 2023. 

On average, the counties in Illinois collectively process over $150M in bond payments each year. With those payments ending in September, it’s worth considering where that money currently goes. Presently, about 70% of those funds end up paid to the county as fines or fees, around 5% is paid to victim restitution, and the balance is paid to attorneys or refunded to the defendant.

Whatever happens come September, the counties will have a much more difficult time recovering these fees and fines. This impact is more than negligible as these fees can make up to 15% of a circuit clerk’s annual revenue. 

Who’s happy, unhappy?

Happy -- Governor J.B. Pritzker, Lt Governor Juliana Stratton, Attorney General Kwame Raoul, House Speaker Emanuel Welch, Senate President Don Harmon, Democratic Party Chair Lisa Hernandez.

Unhappy — Madison County state’s attorney Tom Haine and Sheriff Jeff Connor, state reps. Kevin Schmidt, Charlie Meier, David Friess, Amy Elik, Jason Plummer, Erica Harriss, Terri Bryant, Tony McCombie, Senate Leader John Curran, Fraternal Order of Police President Chris Southwood, Sheriff’s Ass’n Director Jim Kaitschuk, US Rep, Mary Miller.

At this point, Illinois Democrats generally approve of abolishing cash bail, while Illinois Republicans and law enforcement do not.  Either way, they are all going to be managing and living with the outcomes of the ruling soon enough.

Is Illinois ready to eliminate cash bail?

Yes and no.  A number of counties report that they are ready, but some are not.  No doubt there will be a lot of meetings in every county between now and September 18, 2023.

At this point, the Office of Statewide Pretrial Services is working on getting up to speed, but the state has not provided mobile supervision which can help provide accountability, assistance and data at scale for all type of pre-trial release. 

In contrast, Illinois’ neighbor Missouri has provided mobile supervision through RePath to every Missouri county following its own Supreme Court rule impacting cash bail.  Courts in Missouri have ordered over 16,000 pre-trial participants to mobile supervision with RePath in the past two years and found reduced pre-trial incarceration, reduced failures to appear, improved accountability, and millions of dollars of savings at both the state and county level.  There are a lot of unknowns in Illinois, but there is no question that mobile supervision can be part of the solution starting immediately.