Illinois becomes first state to end cash bail

CHICAGO (CBS)-- Illinois is now the first state to fully abolish cash bail as the SAFE-T Act went into effect Monday.

Monday was a big day at places like the Cook County Jail and others across the state, as inmates are now able to petition the court to review their case as this ruling has taken effect. Defendants already being held on cash bail will be able to request a hearing to determine if they should be released.

Moving forward, those detention decisions will no longer involve putting up money in exchange for release, but will focus on the seriousness of the charges against them, and on whether they are considered a danger to the public or a risk of fleeing prosecution.

A provision of the criminal justice reform law known as the SAFE-T Act was supposed to eliminate the use of cash bail across the state on Jan. 1, but the state's highest court put that provision of the SAFE-T Act on hold after prosecutors and sheriffs in 64 counties filed lawsuits claiming the law was unconstitutional, and a Kankakee County judge ruled in their favor.

In a 5-2 ruling in July, the state's highest court overturned a ruling by a Kankakee County judge that the law ending cash bail was unconstitutional. 

"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," Justice Mary Jane Theis wrote in the ruling.

Proponents of the end to cash bail have said defendants shouldn't be forced to stay in jail simply because they can't afford to pay their bail.

"The money bond system wrongly tied access to financial resources to pretrial freedom. The result has been countless individuals – mostly from Black and Brown communities – spending days, weeks, months, years in jail just for being poor," said Cook County Board President Toni Preckwinkle.

They have also said the new process of having judges decide whether a defendant should remain in custody if they are a danger to the public or pose a risk of fleeing prosecution should result in more dangerous people being detained because they won't be able to pay to get out of jail.

"This bill, this law was worked on in conjunction with advocates – victims' rights advocates, domestic violence advocates, those who have been impacted by this system – who have seen people who have been able to pay their way out of jail and cause harm. This effort to detain those who hold a real threat to our public rather than detain those who are simply poor is the right thing to do," said Cook County State's Attorney Kim Foxx, who has been a vocal supporter of ending cash bail.

Opponents of the law have said judges need more discretion than currently allowed to decide whether a defendant should remain in jail.

Special Assistant State's Attorney Alan Spellberg, representing Will County State's Attorney James Glasgow, argued that the pretrial release provisions of the SAFE-T Act "unduly interfere with the judiciary's authority to set bail."

However, the Illinois Supreme Court ruled that "the legislature has long regulated the bail system."

The Illinois Fraternal Order of Police also blasted the Illinois Supreme Court's decision upholding the end to cash bail in July, saying it "confirms Illinois' status as the state of lawlessness and disorder."

"The court ignored the pleas of nearly every prosecutor in the state of Illinois, Democrat and Republican, that the elimination of cash bail will put dangerous criminals back on the street, instead of keeping them in jail or forcing them to post cash bail as they await trial. Many of those offenders will commit crimes again within hours of their release," Illinois FOP State Lodge President Chris Southwood said at the time. "And who will have to arrest those offenders again and again? The police officers whose jobs have been made immeasurably more difficult by all of the new anti-law enforcement measures that are in place. Today's ruling is a slap in the face to those who enforce our laws and the people those laws are supposed to protect."

CBS 2 Legal Analyst Irv Miller said the change means criminal defendants will no longer have to pay a specific amount of money to be released from jail as they await trial. But there's still a chance they'll remain locked up if a judge believes they're a danger to the public, a risk of fleeing prosecution, or charged with a serious enough felony.

"You may be detained, you may be locked up based upon your being a risk of flight, or the crime is so outrageous. Typically, the most serious crimes in Illinois, we don't want people actually running back out on the street. So the legislature drew a line as to where people should be detained, and where people should be released, but they also drew the line that people don't have to post money to get out of jail. That's not an issue," he said.

While the SAFE-T Act brings an end to cash bail in Illinois, Theis noted that judges still have the ability to decide whether criminal defendants should remain in custody ahead of trial.

The first day without cash bail in Cook County Criminal Court

As CBS 2's Chris Tye reported, experts called the end of cash bail the biggest change in Illinois courtroom procedures in a generation.

At the George N. Leighton Criminal Courthouse on Monday, things went pretty smoothly. Hearings that used to last two to three minutes went 10 to 12, so there are some new pressures on the court system. 

The first appearances will continue to run longer— because judges need to hear more detail as a case begins to determine whether the defendant should be released ahead trial or not.

The nation is watching as Illinois removes money from the equation that determines who should and shouldn't remain behind bars ahead of trial.

"The decision of whether somebody's going to be incarcerated pretrial is probably one of the most important decision to happen in criminal cases," said Cook County Public Defender Sharone R. Mitchell Jr. "It's probably only second to only straight innocence or guilt."

Inside court at 26th and California on Monday, grizzled judges were observing in jury boxes as the new normal rolled out.

"This is the most significant change of procedure that frankly has occurred in my career," said CBS 2 Legal Analyst Miller. "I've never seen such a change of this magnitude that basically turned the system upside-down." 

Let's try and turn what's at play right-side up. One of the first hearings in what was once bond court Monday was the case of Cortez Murphy.

Prosecutors said Murphy, who was on an electronic ankle monitor for a burglary charge, damaged the monitor last week and fled from police as his bracelet siren activated.

Prosecutors also said Murphy he hid Behind a refrigerator to avoid capture, and had four instances in his past of failure to appear in court.

Murphy's defense attorneys countered that he was going to see an aunt who has since died. Defense attorneys said he was found at the home of a relative ahead of starting a new job next week.

With those factors at play, the judge Murphy was a "high-level flight risk," and his release was denied. Details, not dollars, determined that Murphy will stay locked up.

In another courtroom, Esmeralda Aguilar, 24, was charged with pepper-spraying a police officer during Mexican Independence Day celebrations - was released with warnings by a judge.

"Most criminal lawyers; most judges that I've talked to, actually, don't like this law, OK?" Miller said. "The concept is good. The fact somebody shouldn't be held in jail because they can't afford to get out - that shouldn't be the case. But I'm not sure that the legislature did it in a way that I think makes it easy for lawyers, judges, and litigants to try to figure out what's going on."

As for the thousands in Illinois sitting in jail only because they can't afford bail, they are required to have a hearing within 90 days - and depending on the charge, as soon as seven days.

"We stand ready to file a motion, or do whatever the client thinks is in his or her best interests," Mitchell said.

Whether this is a good or bad change may take years to determine.  There will likely be modifications to the new law as rea-world cases expose its strengths and weaknesses.