Cash bail to be argued before state Supreme Court this week

The Illinois Supreme Court will hear on March 14 arguments challenging and defending a 764-page state law and one controversial section of it called the no-cash-bail provision.

Signed into law by Governor JB Pritzker on Jan. 22, 2021, the Illinois Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act phased in substantial reforms of the state’s criminal justice system. Among these would be 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 law, which addresses 265 separate statutes, was amended in December 2022.

Support in court for the no-cash-bail provision seems almost geographically split, with the officials of many downstate counties opposing it and Cook County and those in other northern/suburban counties supporting it or remaining neutral.

Evanston advocates of eliminating cash bail say it would make the system fairer, because pretrial detention will be determined by the seriousness of the crime and danger to the community rather than by the availability of economic resources. The Evanston Police Department is watching and awaiting the Supreme Court ruling.

Background

In the waning days of 2022, law enforcement representatives from more than half the counties in Illinois challenged the constitutionality of the no-cash-bail provision. Most of these are outside of the Chicago metropolitan area; Cook County officials are standing by the no-cash-bail provision of the SAFE-T Act.

Opponents of the no-cash-bail section have challenged that section – as well as the entire act – saying it violates the State Constitution. Supporters of the measure say that it corrects a long-standing inequity.

On Dec. 28 of last year, a circuit court judge sided with the challengers, and State Attorney General Kwame Raoul immediately appealed the matter directly to the State Supreme Court.

A Constitutional violation or a system correction?

In Illinois at present, most people charged with certain crimes – and who are considered to be a flight risk or a danger to the community – may post a bond or put up cash or collateral to guarantee they will show up for trial.

While prosecutors and defense lawyers can make arguments, the decision about whether to grant bail, as well as the amount of bail, has been the exclusive province of judges.

The lawsuit charges that the legislature violated the system of checks and balances by usurping a judicial prerogative. Defenders of the Act and others say the law corrects an unfair system that too often means that the amount of money a person has rather than the seriousness of the offense determines who stays in jail and who resumes a normal life until the trial.

Under the SAFE-T Act, the presumption is that a defendant will be released without bail. To be detained pending trial, a defendant must be charged with at least one of certain offenses specified in the act, and the state must prove by “clear and convincing evidence” that the defendant is a flight risk and also poses a real and specific threat to another person or persons in the community.

More than half the counties in the state challenge the act

Just before the no-cash-bail provision was to take effect, representatives of 64 of the state’s 102 counties – mostly state’s attorneys but some sheriffs as well – filed suit to block its enforcement, alleging that the act as a whole and the no-cash-bail provisions violate various provisions of the Illinois constitution.

Judge Thomas W. Cunnington of the 21st Circuit, located in Kankakee, consolidated the cases and ruled on Dec. 28, that the no-cash-bail provisions of the SAFE-T Act “violate this separation of powers principle underlying our system of governance by depriving the courts of their inherent authority to administer and control their courtrooms and to set bail.”

“Bail exists,” he wrote, “as it has for centuries, to balance a defendant’s rights with the requirements of the criminal justice system, assuring the defendant’s presence at trial, and the protection of the public” and “[T]he provision eliminating monetary bail in all situations in Illinois prevents the court from effectuating the constitutionally mandated safety of the victims and their families.”

Further, he said, “[T]he appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat.”

A measure, such as the elimination of cash bail, that goes against the Constitution should be put before the voters to weigh in on amending the Constitution, he said: “The court finds that had the legislature wanted to change the provisions in the Constitution regarding eliminating monetary bail as a surety, they should have submitted the question on the ballot to the electorate at a general election and otherwise complied with the requirements of Art. XIV, Sec. 2.”

The state defends the act …

Using a Supreme Court rule that allowed him to bypass the appeals court, Attorney General Raoul appealed to the Illinois Supreme Court.

He framed the issues as follows:

1. Whether the Illinois Constitution prevents the legislature from eliminating money bail because under Article 1 Section 9, criminal defendants are, with certain exceptions, “bailable” or under Article 1 Section 8, certain rights are guaranteed to victims or crimes; and

2. Whether the Illinois Constitution prevents the General Assembly from enacting legislation that governs the circumstances of pretrial detention. 

The state’s position, according to the attorney general’s brief before the Supreme Court, is that the SAFE-T Act does not violate the separation of powers doctrine, because the new law still allows judges the discretion to set or deny bail.

“Among the act’s principal goals is the reform of the procedures governing pretrial release—i.e., procedures that govern whether a criminal defendant who has been charged with a crime is detained or released pending trial,” the state’s brief said.

“The act accomplished that goal in two primary ways: It ended the use of monetary bail in Illinois, and it established a new set of procedures governing a court’s decision whether to detain an individual before trial,” it continued.

As does Cook County

No Cook County official was a plaintiff. Instead, on Dec. 29, the day after Judge Cunningham’s ruling, a post on the website of Cook County State’s Attorney Kim Foxx endorsed the reforms of SAFE-T Act, including the elimination of cash bonds.

“As leaders in Cook County’s criminal court system,” the statement read in part, “we remain committed to the principles of pretrial fairness and the elimination of money bond. The historic reforms in the Pretrial Fairness Act represent an important step toward improving community safety, addressing decades of harm to Black and Brown communities, and guaranteeing equal justice for all under the law—not only for those who can afford to pay. … The SAFE-T Act and the Pretrial Fairness Act were thoughtfully drafted to prioritize safety for victims, accused people and entire communities. We look forward to the Illinois Supreme Court’s review and clarification regarding the constitutionality of these laws.”

The signatories to the post on Foxx’s webpage are the Cook County Office of the President, the Law Office of the Cook County Public Defender, the Cook County Justice Advisory Council, the Cook County State’s Attorney’s Office and the Clerk of the Circuit Court of Cook County.

In Evanston …

“I do support these reforms,” State House Majority leader Rep. Robyn Gabel of Evanston told the RoundTable. She said she had seen films about people in pretrial detention – “often for petty crimes. What happens is that they end up in jail; they lose their jobs, their homes, their families. It doesn’t seem fair to me.”

The James B. Moran Center for Youth Advocacy works with youth and young adults who are in challenging legal situations, helping to keep them from the criminal justice system.

Tom Verdun, director of legal services at the Moran Center, said the system of cash bail “disproportionately affected low-income people in our communities” and has cascading effects on the community as a whole.

As an example, he said, if a family member contributing to the financial support of the family is “taken away because they don’t have money – prior, even, to conviction – that not only affects the individual, but it also affects the family, which, I would argue, also affects the community as a whole.

“If a breadwinner in the family can continue to work and continue to support the family, then not only does the family stay together, but maybe they’re able to maintain their apartment. If the breadwinner is in custody, there’s no income. Now you possibly have small children and other family members who may become homeless. … Or if a young person is in custody, now they’re no longer in school. And chances are once they get out, they probably are not going to go back. So there’s just a cascading effect of what happens when a person is taken into custody, and how that affects them and the family of people close to them – and, again, the entire community.”

Collateral consequences may go beyond the economic, Verdun said.  

“Research shows that [people detained for not being able to post bail] are more likely to plead guilty to an offense, even if they may have a legitimate legal defense to the case,” Verdun said. This is “partially due to the fact that in a court system the size of Cook County’s, things tend to move very slowly.

“It could be months before the case can go to trial. And so an individual may be willing to accept a plea bargain – to probation, time served, etc. – even though it may result in conviction with possibly long-lasting collateral consequences, in order to get out of custody and back to the family. All of those things have an effect on not only the individual, and it’s simply because they don’t have the cash to post for bail.

“I believe that when any one family is impacted with impacts the entire community. … Our philosophy is that not only are we helping the individual clear their record … but that is beneficial to the community at large. If somebody can give them employment, can help them and or their families, that’s clearly good for them. But it’s also it’s also good for the community where one of us succeeds, all of us succeed.”

The Safer Foundation in Chicago offers job readiness training and placement educational programming for those re-entering society from prison. Kevin Brown, senior director for external affairs and community partnerships at the Safer Foundation, said of no-cash-bail provision, “We think it promotes public safety from the standpoint of giving poor and disenfranchised citizens the opportunity to defend themselves and totally exercise their constitutional rights.

“What happens now is if a person is arrested, people have the opportunity to post a bond. And so it becomes an equity issue, where people who are poor don’t have an opportunity to post one.

“And what we currently have is a system where those individuals who have the financial means to actually be released from jail have the opportunity to work with their attorneys on the outside to address the issue that they’re accused of, whereas, when a person doesn’t have the financial resources, they are kept or held.”

The decision to hold someone in jail pending trial is currently up to the judge, but often the financial resources of the accused, rather than seriousness of the crime, Brown said, pave the way out of pretrial detention.

Those defendants detained pending trial and later acquitted would have been jailed for months – or more – for crimes they did not commit.

Addressing some of the fears about ending cash bail, Verdun 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 that they feel it’s necessary, and the state can ask for detention if they choose. So there are safeguards.”

Similarly, said Gabel, “This gives judges more power. They can hold a dangerous offender now [even if the person has enough money to post bail]. It’s a way to be more fair.”

The Evanston Police Department is taking a wait-and-see approach. Commander Ryan Glew said, “I know there are concerns from both sides.”

Evanston’s Police Department, he said, is “aware of concerns that law enforcement has [such as that] no-cash-bail will be a facilitator, potentially, for crime and street crime. And that will negatively impact communities, especially communities, lower income, or have at-risk populations for victimization.

“So we’re aware of those concerns, but what we’re going to do is independently observe and evaluate as the process unfolds. And then we’re going to evaluate our observations in the context of intelligence-led policing.

“As we always do, even in times when there’s not a pending legislation, we need to provide the best police service we can for all of our communities. And sometimes, especially, those are at a higher risk of victimization.”

California, New Jersey and New York have each reformulated their requirements for cash bail. Should the Illinois Supreme Court uphold the no-cash-bail portion of the SAFE-T Act, it will be the first state to wholly end cash bail.