Illinois Supreme Court Upholds Legislative Abolition of Cash Bail

On my drive home yesterday, I heard a news story on the radio. The report indicated that the Illinois Supreme Court had just upheld a law completely eliminating financial conditions of release in the Prairie State – apparently making it the first state in the country to abolish cash bail. The story didn’t detail the legal arguments at issue in the case, or even who had challenged the law. Given the national interest in bail reform, I thought the Illinois case might be a harbinger of things to come elsewhere, so I looked into it. This post briefly summarizes what I learned.

What the Illinois legislature did. The path to the elimination of cash bail in Illinois dates back at least to 2017, when the state supreme court convened a Commission on Pretrial Practices. The Commission issued its report in 2020. The group recommended several changes to the pretrial release system then in effect, including that “[j]udicial bail decisions shall presumptively favor nonfinancial release” and that no defendant should be detained due to an inability to pay money bail.

After George Floyd was killed in 2020, the Illinois Legislative Black Caucus introduced bills designed to reform the criminal justice, education, health care, and economic systems of the state. The omnibus criminal justice reform bill, commonly known as the SAFE-T Act, is the bill at issue in the recent court decision. See Ill. Pub. Act 101-0652. The bill is 764 pages long and addresses topics including police use of force, body-worn cameras, reporting of deaths in custody, and much more. It also – in the words of the summary on the legislature’s website – “Amends the Code of Criminal Procedure of 1963. Abolishes cash bail. Provides for pretrial release and eligibility for that release. Amends various Acts to make conforming changes.”

In a bit more detail, the bill eliminates financial bail as a possible condition of pretrial release. A defendant may be detained prior to trial if he or she is charged with a serious felony and the state establishes that he or she “poses a real and present threat to the safety of any person or persons or the community” or there is “a high likelihood of willful flight to avoid prosecution.” Otherwise, the defendant must be released with no financial conditions. Other conditions, such as various kinds of supervision and monitoring, remain possible.

Who challenged the law. The prosecutor and sheriff of Kankakee County, Illinois filed a lawsuit in state court asserting that the bill violated the Illinois constitution in multiple ways. They alleged that the bill as a whole violated certain procedural requirements of the state constitution, such as the “three readings requirement” and the “single subject rule.” Likely of greater interest to readers of this blog, they also contended that the bill violated state constitutional provisions referring to bail, state constitutional provisions concerning victims’ rights, and the state constitution’s separation of powers provisions (by infringing on judges’ inherent authority to determine release conditions).

Many other prosecutors and sheriffs subsequently filed similar suits. In fact, one press report suggests that only two of the 102 local prosecutors in Illinois – both from the Chicago area – supported the bill. The various lawsuits were consolidated with the original Kankakee County case.

Lower court ruling. In December 2022, Kankakee County Chief Judge Thomas Cunnington rejected the plaintiffs’ procedural claims but agreed that the elimination of cash bail violated the state constitution. The judge noted that the Illinois Constitution provides that “[a]ll persons shall be bailable by sufficient sureties” and that victims’ perspectives must be “considered in denying or fixing the amount of bail.” The judge concluded that eliminating cash bail altogether rendered these provisions meaningless. Further, he determined that the legislature had infringed on the inherent authority of judicial officials to set conditions of pretrial release.

Illinois Supreme Court ruling. The Illinois Supreme Court agreed to review the case. Yesterday, it issued this opinion reversing Judge Cunnington. The vote was 5-2, with all the Democrats on the court in the majority and the two Republicans in dissent.

The court first rejected the idea that the bill was incompatible with the state constitution’s reference to “bail[] by sufficient sureties.” The court noted that the quoted phrase does not reference monetary sureties, and it concluded that in 1818, when the phrase originated, monetary bail was “all but unknown.” Thus, the state constitution did not enshrine the practice of money bail.

The court then turned to the victims’ rights issue. It reasoned that in the provision regarding victim input on “fixing the amount of bail,” the term “amount” “connotes quantity and does not only mean a quantity of money but rather, consonant with the bail clause, a quantity of sufficient sureties.” In a footnote the court offered an alternative rationale: “To the extent that ‘amount’ may imply an amount of money, the crime victims’ rights clause simply reflected the reality of Illinois’s bail system at the time it was adopted. That reality has changed.”

Finally, as to the separation of powers, the majority noted that “the legislature has long regulated the bail system,” including by specifying over 100 factors for courts to consider in making bail decisions. The court saw this as proper and as consonant with the fact that the legislature has mandated many other aspects of criminal procedure.

The dissenting jurists focused exclusively on the victims’ rights issue. They reasoned that eliminating money bail is incompatible with giving victims input on the “amount of bail.” In the words of the dissenters, “Under the pretrial release provisions of the Act . . . there is no set of circumstances in which the safety of crime victims and their families can be considered in setting the amount of bail [as] the amount of bail is effectively set at zero for all cases under the Act.”

Where do things go from here? The court’s opinion indicates that the law will take effect on September 18, 2023. All the claims in the litigation were state constitutional claims, so I don’t see a path to review by the Supreme Court of the United States. In other words, as far as Illinois goes, the next step is moving ahead with the elimination of money bail. The bill does not limits its application to those newly charged with crimes. Defendants currently under financial release conditions are entitled to hearings to reconsider those conditions.

It will be interesting to see how the Illinois courts interpret the flight risk and danger provisions of the new law, and whether the new law actually results in a significant change to the proportion of defendants who are detained prior to trial. Equally important is whether there will be a measurable impact on public safety. The National Institute of Justice has funded a grant to examine the latter question.

I will also be curious to see whether bail reform initiatives in other states are challenged on similar grounds to those at issue in the Illinois case. We don’t appear to be on the precipice of a statewide elimination of money bail here in North Carolina, but even lesser or local changes could potentially be the subject of litigation.

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