Cash bail to end in mid-September; supporters applaud the move, others remain wary

In a 5-2 decision, the Illinois Supreme Court on July 18 upheld the constitutionality of the portion of the Illinois SAFE-T Act that eliminated the requirement of cash bail. Now a judge rather than the defendant’s financial ability to post a cash bail will determine whether a defendant should return home or be held in jail pending trial.

brown wooden gavel on brown wooden table
The Illinois Supreme Court on July 18 upheld the elimination of a requirement for cash bail.

Credit: Ekaterina Bolovtsova on Pexels.com

The Illinois Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act, which addresses 265 separate statutes, was signed into law by Gov. JB Pritzker on Jan. 22, 2021, and amended in December 2022. Among the reforms to the criminal justice system that were phased in by the act was the elimination of cash bail for many types of crimes, a measure that was set to go into effect on Jan. 1 of this year.

The requirement of posting cash bail kept many low- and even medium-income criminal defendants in jail pending trial. Now, the “default rule” of the pretrial release provisions is that “all persons charged with an offense shall be eligible for pretrial release on personal recognizance,” Chief Justice Mary Jane Theis wrote in the majority opinion in the case, Rowe v. Raoul. Safeguards in the act protect the community, she wrote, balancing the rights of criminal defendants with those of the public.

The provision will now be effective Sept. 18.

Local support

Advocates in Evanston who supported the provision said they feel this is a step toward making the criminal justice system more equitable. The Evanston Police Department and other law enforcement officials have said they will implement needed changes to abide by the new law.

“The Illinois Supreme Court’s ruling today is a victory for all Illinois citizens and we support the Court’s decision,” Tom Verdun, director of legal services at the James B. Moran Center for Youth Advocacy, said in a press release. “It means that most individuals and families in Illinois will not have their lives upended if an individual or a family member is charged with a criminal offense.”

In March, Verdun told the RoundTable that collateral consequences of pretrial detention may go beyond the economic and can impact the entire community. He said research shows that people detained for not being able to post bail are more likely to plead guilty to an offense or accept a plea bargain even if they may have a legitimate legal defense to the case – just to get out of custody and return to their families.

He also said, “I think there is a misunderstanding that people feel like if the Supreme Court upholds the law, that the jail doors are going to be opened up and people aren’t going to be safe. But that is not true, because judges can make findings of fact, and detain people if they feel it’s necessary, and the state can ask for detention if they choose. So there are safeguards.”

The Moran Center statement noted that since 1972, when the center was founded, “the rate of pretrial detention [jailing someone before they go to trial] has multiplied more than 5x what it was forty years ago. The Pretrial Fairness Act is one step toward correcting the disparate impact of wealth-based jailing on Black families in Illinois. Ending money bonds disrupts the system of jailing individuals before trial because of their own economic barriers, which has been shown to lead to inequalities in justice and affect opportunities to success after incarceration.”

By email the YWCA Evanston-North Shore said it “firmly supports the Pretrial Fairness Act, as this transformative and historical legislation to end cash bonds will help domestic violence survivors. … [W]e recognize that the current cash bail system disproportionately impacts Brown and Black communities through over criminalization of both offenders and survivors. The Pretrial Fairness Act ensures that survivors of domestic violence will have greater access to notification and orders of protection and that poverty is no longer a driver of incarceration.”

‘In line with our values’

Cook County State’s Attorney Kim Foxx said in a prepared statement, “Today’s ruling ends the cash bail system, replacing that system with a detention process based on community safety and not on the financial fitness of defendants. … [The] ruling is a monumental milestone toward achieving equal justice for all in Cook County and Illinois. It is our responsibility to address the historic inequities in our justice system. Everyone deserves a fair shot at justice, regardless of their zip code, paycheck, or the color of their skin. Ending cash bail is in line with our values and is a critical step toward economic and racial justice in Cook County and Illinois, which is why I have supported and advocated for its end from the beginning.

“I will continue to support our court stakeholders as they prepare to implement the end of the cash bond.”

The Safer Foundation offers programs to help reintegrate people who have been in prison into society. A statement from President and CEO Victor B. Dickson said, “The Safer Foundation applauds the Illinois Supreme Court’s upholding of the pretrial fairness provisions of the SAFE-T Act. This is a victory for some of the most disenfranchised and vulnerable members of our society: Black and Brown individuals who are disproportionately detained by the criminal legal system. By eliminating cash bail, people of color who are often without sufficient funds to post bail will be treated the same as others with money – and will not linger in jail because their family does not have the resources to post bail. This community-driven solution is an example of how we all win when we allow policies to come from the community. We thank the many advocates, lawmakers, Governor Pritzker and the Court for this historic law.”

Evanston resident Kevin Brown is the senior director for external affairs and community partnerships at the Safer Foundation. In an interview with the RoundTable Brown said, “The people who advocated for this legislation are not attempting to harm the criminal legal system, how it works, how it operates. I think everyone is really trying to reform the system, so that it is responsive to the needs of people in our society, particularly those who are more disenfranchised, and those who are suffering from this, just the horrible things that come with a lack of, of resources and dollars.”

State Rep. Robyn Gabel (D-18th), who lives in Evanston and serves as the House majority leader in Springfield, told the RoundTable she had supported the measure and those who worked toward its passage. She sent a statement that said in part, “The Illinois Supreme Court upheld this law, putting the rule of law and smart policy ahead of political misinformation. The law will now give judges more power to hold dangerous offenders in jail because they’ll be making decisions on a public safety assessment – not simply the defendant’s access to cash. This ruling is a vindication of the ‘smart on crime’ approach I have prioritized. Now we need to put political games and partisan spin behind us and continue the work of implementing this important reform.”

Police will comply

Evanston Police Commander Ryan Glew said, “I’m not saying that we agree or disagree with the legislation, but regardless of what feelings might be, we have to thoughtfully, in a data driven approach, maximize our efforts to make and to have a safe community with a high quality life.”

He said the Police Department is looking internally to see what updating needs to be done and training to be conducted so that the department will be in compliance with the new law.

Asked whether the EPD felt the provision could lead to an increase in crime or, on the other hand, help stabilize neighborhoods, he said, “I would say that whenever there’s a change in the law, we look at how it relates to law enforcement. … We need to be vigilant as to what effect there may be on specific crimes and crime trends overall.”

Glew said he would not speculate on whether the provision would stabilize or destabilize neighborhood and families but that the department would be “vigilant about whatever changes the new provision has on the quality of life of the people in our community.”

“I think it’s important to know, regardless of the legislation that’s passed, it’s our job and commitment to make every effort to maximize safety and quality of life, for the community of Evanston.”

Ruling ‘a disappointment’

Laura King, president of the Illinois Association of Chiefs of Police, said in a letter to ILACP members the ruling “comes as a disappointment to law enforcement leaders across the state. … For it is us, those tasked with protecting public safety, who realize more than anyone else the true potential impact that a decision like this may have for our communities. And it is us who will have to navigate the unintended consequences of this new legislation. 

“While the news is discouraging, this is no time for us to allow our frustrations to get the best of us. Now is the time for us to do what we have been called on to do countless times before; adapt and overcome. Law enforcement will find a way to work within the restrictions imposed upon us. We must find a way to keep the faith in our system. Law enforcement leaders are experts at finding solutions. I am confident we will find a way to keep our communities and crime victims safe despite the challenges this ruling imposes.”

An analysis of the decision by legal adviser Don Zoufal accompanied King’s letter. In a section titled Law Enforcement Actions to Implement the Rowe Decision, he wrote, While the matters addressed by the Illinois Supreme Court’s opinion Rowe primarily govern actions of courts and state’s attorneys in establishing the conditions for bail and pretrial release, there will likely be impacts on operations of local law enforcement agencies. As an example, law enforcement agencies may need to assist in gathering information to support prosecutorial applications with respect to bail. Those actions require coordination between law enforcement agencies and state’s attorneys.”

Regarding the constitutionality of the law, Chief Justice Theis wrote, “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. 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.”

Justices P. Scott Neville Jr., Joy V. Cunningham, Elizabeth M. Rochford and Mary K. O’Brien joined Theis in upholding the act. Justices David K. Overstreet and Lisa Holder White dissented.

A RoundTable story on the act written in March, when the Supreme Court was about to hear the arguments, can be found here.

This story was updated on July 21 with the statement from the YWCA-Evanston/North Shore.

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