Illinois Supreme Court upholds end to cash bail; new system begins Sept. 18
CHICAGO (CBS) -- The Illinois Supreme Court has upheld a state law ending cash bail across the state, giving courts two more months before they must implement the change.
Illinois will now be the first state to fully abolish cash bail.
In a 5-2 ruling Tuesday morning, the state's highest court overturned a ruling by a Kankakee County judge that the law ending cash bail was unconstitutional. The end to cash bail will now go into effect across the entire state on Sept. 18, according to the Illinois Supreme Court ruling.
"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.
Justices David Overstreet and Lisa Holder White dissented from the ruling, calling the end to cash bail a "direct violation of the plain language of our constitution's bill of rights and, more specifically, the vested rights of crime victims."
"The people of Illinois exercised their ultimate sovereign power in 2014 when they vested crime victims with constitutionally protected rights. They did so by amending the bill of rights in our state constitution, setting out specific enumerated rights to be enjoyed by all crime victims in this state. Those enumerated rights include the explicitly defined right to have their safety and the safety of their families considered by the courts in 'denying or fixing the amount of bail,'" Overstreet wrote.
Illinois Attorney General Kwame Raoul, whose office defended the end to cash bail against the multiple court challenges, said he was pleased but not surprised with the high court's ruling.
"The court's decision today holds – as my office has consistently advocated – that the General Assembly had the authority to eliminate cash bail and replace it with a system in which people are detained pending trial only if they pose a threat to the public or are a flight risk. And it rejects the plaintiffs' argument that courts must retain the authority to set cash bail free of legislative regulation – an argument that would have called into question decades of criminal justice reforms in our state.
"Someone's experience with the criminal justice system should not vary based on their income level. The SAFE-T Act was intended to address pervasive inequalities in the criminal justice system, in particular the fact that individuals who are awaiting criminal trials – who have not been convicted of a crime and are presumed innocent – may spend extended periods of time incarcerated because they cannot afford to pay cash bail. The law ensures that the decision about whether people are detained pending trial is not based on whether they can afford to pay for their release."
Cook County State's Attorney Kim Foxx, who has supported the end to cash bail, called the ruling " 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," Foxx said in a statement. "I will continue to support our court stakeholders as they prepare to implement the end of the cash bond."
Both Foxx and Lake County State's Attorney Eric Rinehart joined victims' advocacy organizations in applauding the decision.
"Out of 102 state's attorneys, there were only two who said this was the right thing to do," Foxx said.
"This reform allows judges to make safety-based decisions that is individualized to a survivor of crime; that is individualized to a victim of crime," added Rinehart.
Some state lawmakers concurred.
"The phrase 'equal justice under the law' should be more than an aspirational statement, but the reality of our criminal legal system," said Illinois state Rep. Elgie R. Sims Jr. (D-Chicago).
"It means no disruptions with your job or education, no disruptions with your health," said Illinois state Rep. Justin Slaughter (D-Chicago). "If you're a mother or a father, it means no disruptions with your parenting situation."
Meanwhile, Lavatte Mayes has been hoping for an end to cash bail since her own 14-month stay at the Cook County Jail. She says she is still dealing with the repercussions, and she is happy that finances will no longer play a role in whether or not someone is detained.
"I don't think my family and other people, you know, that would surround me would have suffered as much as I had suffered because I couldn't afford to pay my bond," Mayes said.
In 2015, Mayes was charged for an altercation involving a family member. Because she couldn't pay her bond, she spent 14 months in jail separated from her children and unable to work.
"For 571 days, because I couldn't afford to pay my bond - which was the $25,000," Mayes said, "and it made me lose my home. It made me lose my business."
Mayes ultimately took a plea deal and was sentenced to no additional jail time. She is delighted to hear that in two months, cash bonds like hers won't exist in the state of Illinois.
"This is not a 100 percent get-out-of-jail-free card. We will still be going by the laws of this or the State of Illinois. It just helps people who are in lower incomes, be able to get up and go to work, take their kids to school, and all it is," Mayes said. "It's just that's what it is."
Critics — including other county states' attorneys, several sheriffs, and other law enforcement organizations across the state - are calling the ruling upsetting, disappointing, and detrimental.
The Illinois Fraternal Order of Police blasted the Illinois Supreme Court's decision, 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 in a statement. "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."
As CBS 2 Investigator Megan Hickey reported, Sept. 18 is going to be a huge day at the Cook County Jail and other jails across the state – as detainees will be able to petition the court officially for a review of their detention as the ruling takes effect.
Moving forward, those detention decisions will no longer involve putting up money in exchange for release.
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.
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.
The ruling by 21st Judicial Circuit Chief Judge Thomas Cunnington in late December found that the pretrial release portions of the SAFE-T Act violate the separation of powers clause of the Illinois Constitution, and would not take effect in 64 counties that had sued to block the abolishment of cash bail.
After the state appealed that ruling, the Illinois Supreme Court put the end to cash bail on hold statewide, to ensure consistent bail practices throughout the state while they considered the law's constitutionality.
The Illinois Supreme Court heard arguments from both supporters and opponents in March before announcing its ruling on Tuesday.
In overturning Cunnington's ruling, Theis called his reasoning "uneven."
"The trial court ignored the plain language of the constitution. The bail clause does not include the term 'monetary,'" so it did not cement the practice of monetary bail, however long-standing and prevalent across Illinois, into our constitution. 'Sufficient sureties' is not limited to sufficient monetary sureties, and we cannot append or supplement the constitutional text," she wrote.
Kankakee County State's Attorney Jim Rowe, who led the lawsuit that led to Cunnington's ruling, weighed in on the Illinois Supreme Court decision Tuesday morning.
"While this ruling is disappointing and the [SAFE-T Act] terribly detrimental to public safety, we must abide by the decision and will continue to do our best to serve the people of Kankakee County," he said. "Despite the defeat, I could not be more proud of all who fought the good fight. The people of Illinois deserve better than bail reform that is passed under cover of darkness at 4am when all the state was sleeping."
Briana Payton, senior policy analyst for the Chicago Appleseed Center for Fair Courts, was part of a coalition that worked to end cash bail in Illinois as part of the Illinois Network for Pretrial Justice. She said their efforts began as far back as May 2016, because of the number of people who were in jail simply because they couldn't afford to pay bail.
"The significance of this cannot be overstated. What really comes to mind and makes me emotional is just thinking about the people who have lost so much to wealth-based pretrial incarceration, who have sat in horrid and deadly conditions, separated from their families, losing their jobs, families being evicted, people's lives being completely upended because they couldn't pay a certain amount of money," she said. "Especially as a Black woman in this country, it really hurts my heart to think that we have still been putting price tags on people's freedom in 2023. And so I'm really hopeful that this ruling in Illinois and this change in Illinois opens up a wave of change across our country so that we can get rid of this archaic system."
Critics of the current cash bail system say it unfairly punishes poor defendants, often forcing them to spend months or years in jail before they go on trial, even if they are not a danger to the public.
During oral arguments in March, Illinois Deputy Solicitor General Alex Hemmer argued on behalf of the state, saying the bail clause in the Illinois Constitution grants defendants the right to seek pretrial release – while not requiring the state to maintain monetary bail or any other kind of rules governing how pretrial release is carried out.
Hemmer also argued the Illinois General Assembly has the right to regulate pretrial procedures – and are not constrained by the state Constitution from doing so.
But numerous county state's attorneys spoke against the SAFE-T Act. Kankakee State's Attorney Jim Rowe said matters of bail reform belong on the ballot for a vote of the people – as already happened in New Jersey and New Mexico.
He said the Illinois General Assembly passed legislation that conflicts with the Constitution – which would require a popular vote on a matter such as abolition of cash bail.
"They literally tried to drive the reform by following 764 pages of directions at 4 a.m., in the middle of the night, in the dark, with an hour to get there," he said.
Special Assistant State's Attorney Alan Spellberg, representing Will County State's Attorney James Glasgow, also 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."
Specifically, the justices pointed to changes in state law in 1963 regulating the criminal justice system, setting out standards for courts to determine how and when defendants can be kept in custody or released ahead of trial.
"The plaintiffs (or their predecessors in office) never faulted the legislature's earlier forays into this area. Presumably, they found those amendments palatable. However, the substance of the amendment is irrelevant. If the legislature could reconsider bail over the course of so many years, it could do so again in 2021 without offending separation of powers principles," Theis wrote.
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 court may order a defendant detained pending trial if the defendant is charged with any of an array of enumerated felony offenses and 'poses a real and present threat to the safety of any person or persons or the community,'" Theis wrote. "The court may also order a defendant detained pending trial, if the defendant has been charged with an enumerated offense or any felony 'other than a Class 4 offense' and if the court concludes there is 'a high likelihood of willful flight to avoid prosecution.'"
In ruling to uphold cash bail, the Illinois Supreme Court is giving lower courts across the state an additional 60 days to implement the new bail system, after putting the end to cash bail on hold earlier this year. The new bail provisions will now go into effect on Sept. 18.
Other provisions of the SAFE-T Act, including body camera requirements for police departments, and new police training mandates, went into effect as planned on Jan. 1.
Illinois Senate Republican Leader John Curran called on the Democratic-led state legislature to have a special session before Sept. 18 to make changes to the SAFE-T Act to address the concerns of police and prosecutors who have opposed the bail reforms included in the state law.
"While no person should be held in jail or let free because of their economic circumstances, the SAFE-T Act handcuffs law enforcement and judges making it more difficult for them to combat violent crime," Curran said in a statement. "It is possible to reform our cash bail system while keeping our communities safe and the legislature should return immediately to ensure that public safety is in no way jeopardized by the implementation of this reckless legislation before it takes effect."
When asked how many detainees could be released on Sept. 18, the Cook County Public Defender's office said they don't know the exact number because there is no centralized system collecting that data across the state. That is one of the things they will be working now that the law has the ability to take effect.