July 24 (Reuters) – (The opinions expressed here are those of the author, a columnist for Reuters.)
Illinois will make history in September as the first state in the country to eliminate cash bail, following a recent decision by Illinois Supreme Court to uphold criminal justice reform laws first enacted in 2021.
The July 18 ruling represents a major victory for civil rights activists in Illinois and for the ongoing reform movement fueled by the 2020 police killing of George Floyd in Minneapolis. Illinois’ historic reform addresses a glaring structural inequity built into the justice system, and the decision’s clear-cut analysis is a model for restructuring practices around the country to ensure the rights of the accused guaranteed in the U.S. and state constitutions.
Illinois’ new laws are meant to prevent people who haven’t been convicted from being jailed simply because they cannot afford a fine, a practice that remains ubiquitous in the U.S. despite a broad consensus that it violates fundamental notions of equal justice and often violates the Constitution.
Numerous legal scholars have also argued that racial disparities in bail and pretrial detention violate federal civil rights laws. And our cash bail systems almost certainly constitute violations of international treaties and laws the U.S. has ratified.
Tanya Watkins, a community organizer and executive director of Southsiders Organized for Unity and Liberation, told me she was glad the Illinois Supreme Court “upheld the will of the people and stood on the right side of history.”
“People are held in jail, and whether or not they have money determines if they get to go home or stay in a cage and wait for a court date – which can be a very long time,” Watkins said. “It’s incarceration that’s wealth-based and that can never be just.”
James Rowe, state’s attorney for Kankakee County and a plaintiff in the case, didn’t respond to a request for comment. A spokesperson for Illinois Attorney General Kwame Raoul, whose offices defended the legislation, pointed me to a statement commending the ruling.
Illinois’ law abolished the requirement of monetary bail, replacing it with a default rule that makes all charged people eligible for release before conviction, with exceptions for some serious felonies and for people who pose a threat or might flee. The new framework clearly establishes that the government must meet a burden of proof before jailing someone without a trial or conviction.
Those commonsense reforms were met with more than 60 different suits filed by mostly Republican prosecutors and sheriffs throughout Illinois, alleging numerous violations of the state Constitution.
Their legal positions were underlaid by the unsupported policy argument that bail reform puts dangerous criminals back on the street.
In fact, research conducted in 2022 by the NAACP Legal Defense Fund found that localities that enacted bail reform between 2015-2021 experienced a slightly lower increase in homicide compared with pre-pandemic averages than cities with traditional “tough-on-crime” policies (47% compared with 51%).
And researchers at Loyola University Chicago have found that a 2017 bail reform order issued by Cook County’s chief judge saved residents more than $31 million in bail payments, kept hundreds out of jail and had no effect on crime.
Still, law enforcement officials argued that the reforms represent a danger to the public.
The Illinois Supreme Court took up the case after a Kankakee County circuit court held in December that the bail reform laws violated the Illinois constitution’s bail clause, which requires that anyone who is jailed “shall be bailable by sufficient sureties.” It also said the laws violated separation-of-powers principles, and a 1992 constitutional amendment that established rights specifically for crime victims.
The Illinois Supreme Court dismissed those conclusions succinctly.
The lower court repeatedly “ignored the plain language of the constitution” and the bail clause – which says nothing at all about money – and instead “appeared to believe that monetary bail is the only way” to protect the public, Chief Justice Mary Ann Theis wrote for the 5-2 majority.
The trial judge also “appeared to forget that” the bail reform law does “expressly take crime victims into account” by requiring judges to consider threats to victims and their family members, and that the legislature has exercised legitimate power to regulate the bail system for decades.
To my mind, the court’s concise analysis is an indication of how flagrantly unconstitutional many cash bail requirements around the country are. (Most state constitutions include language similar to Illinois, which mirrors the federal constitution’s 8th Amendment.)
The former chief judge of New York state put the point plainly in 2015, commenting that it’s “so obvious” that the bail system “is totally ass-backwards in every respect.”
Indeed, the U.S. and the Philippines are the only two nations with for-profit cash bail systems, Udi Ofer, founding director of the Policy Advocacy Clinic at Princeton University, told me.
The Princeton clinic was briefing the United Nations Human Rights Committee on bail practices and related issues — the committee questioned the U.S. in 2019 about racial disparities in pretrial detention — when the Illinois Supreme Court’s decision came down, Ofer said. Illinois’ laws were cited as an example of commonsense reforms to ensure compliance with domestic and international norms.
“The biggest obstacle to bail reform right now is tough-on-crime politics,” Ofer said, adding that President Joe Biden’s administration “has been disappointing on the issue,” despite promising to end cash bail practices.
The Justice Department backpedaled on the issue in April. And the U.S. Supreme Court declined an opportunity to address it in June.
Despite those setbacks, the Illinois Supreme Court’s decision makes clear that cash bail reform can withstand constitutional challenges.
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