Illinois is the First State to Eliminate Cash Bail
The Illinois Supreme Court ruled this week that the elimination of a judge’s ability to impose cash bail on defendants facing criminal charges is constitutional, lifting an injunction on the provisions that were to ordinarily take effect at the beginning of this year. Illinois was set to become the first state in the country to eliminate cash bail as part of the controversial “SAFE-T Act” or Pretrial Fairness Act as it is sometimes referred to, which was slated to take effect January 1, 2023. However, soon after the legislation was signed into law by Governor Pritzker, prosecutors and sheriffs in 64 counties filed lawsuits seeking to have courts rule the elimination of cash bail unconstitutional, with a judge in Kankakee County ruling that the Act was unconstitutional because it attempted to amend the Constitution of Illinois without submitting the change to a public vote as required. While the decision was appealed, the Illinois Supreme Court stayed that section of the bill’s enforcement while it took up the case to ensure even application of the effects of the bill until it could weigh in on the matter. With their ruling, the law is now set to take effect across the state.
Court Sets New Date for Implementation
Giving courts 60 days to anticipate and prepare for implementing the provision, the Court ruled that it will take effect September 18, 2023, in all counties. Crucially, the elimination of cash bail does not abolish pretrial detention. Instead, it limits the circumstances and tools which a judge can order a defendant to be detained pending trial (or a guilty plea or other dismissal short thereof), but with certain carve-outs. The bill directs judges to favor release for defendants charged with a crime, particularly those charged with misdemeanors, traffic offenses, and nonviolent crimes, but allows for denial of pretrial release for “non-probational” offenses (typically the most serious crimes such as first-degree murder, armed robbery, stalking, certain gun offenses, etc.) if the judge finds that the defendant presents a danger to the community or a certain individual. In addition, although judges typically cannot order pretrial detention for misdemeanors and the other low-level offenses under the new law, if a defendant is already on pretrial release, probation, or parole, the judge is allowed to hold said individual on any charge. Individuals accused of serious crimes and/or those who have a criminal record will still need experienced defense attorneys to ensure their pretrial release, particularly in light of new changes that will create uncertainty and misunderstandings as the sweeping provision takes effect.
