Understanding Illinois' First-Of-Its-Kind Law Nixing Cash Bail

By Joe Tabor and Perry Zhao | December 16, 2022, 5:26 PM EST ·

Joe Tabor

Perry Zhao

On Jan. 1, 2023, Illinois is set to become the first state[1] in the nation to completely eliminate cash bail statewide in what has been titled the Safety, Accountability, Fairness and Equity-Today, or SAFE-T, Act.

Other states have come close: Alaska passed cashless bail, only to later roll it back. Voters in California rejected a proposal to get rid of cash bail.[2] New Jersey has come the closest to eliminating the practice, but still has not completely eliminated it in the state.

Illinois' law will do that and more, making sweeping changes to the way criminal justice is handled in the state.

The SAFE-T Act was the source of plenty of controversy during the 2022 election cycle, becoming a favorite campaign issue[3] for those skeptical of criminal justice reform broadly and no-cash bail in particular. Criminal justice reform advocates pushed back,[4] labeling attacks on the bill as cynical fearmongering.

So who is right? As originally passed, the SAFE-T Act is a flawed piece of legislation that was rushed through[5] the Illinois General Assembly without proper debate. As a result, the language was confusing[6] and sometimes contradictory,[7] with significant issues that needed to be addressed.

Fortunately, state lawmakers amended the bill Dec. 1 to correct some of those issues before the law takes effect in January.

The omnibus bill made sweeping changes to how criminal justice operates in Illinois, aside from it all but eliminating cash bail. The law revises police use of force standards and procedures, reforms complaints and misconduct proceedings for police officers, amends the police officer certification and decertification process, and amends both pretrial and correctional proceedings.

This article provides a summary of some of the changes to the law beyond cashless bail. It also discusses the recently adopted amendment that fixed some of the previous issues in the bill.

Police Reforms

The SAFE-T Act implements several[8] reforms to how policing is done in the state and how police officers are held accountable for misconduct. The law:

Restricts the ability of police officers to negotiate residency requirements in cities of over 100,000 people;

Gives the Illinois Attorney General additional authority to investigate civil rights violations committed by police officers;

Allows anonymous complaints against officers and eliminates the requirement to sign a sworn affidavit;

Requires the retention of misconduct records, and requires increased reporting of crime statistics and use-of-force information by police departments;

Adds several restrictions to what constitutes a police officer's justified use of force, including banning chokeholds, clarifications on when deadly force is justified and on execution of search warrants; and

Requires all law enforcement agencies to use officer-worn body cameras by 2025.

Correctional Reforms

With regard to correctional reforms, the SAFE-T Act:

Reforms the felony-murder law so the defendant or someone acting with them must have caused a death in order to be charged with murder;

Loosens mandatory minimum sentences and supervised release terms; and

Eliminates prison gerrymandering by counting people in prison as living in their last-known place of residence for the purposes of legislative redistricting.

Pretrial Detention Reforms

Contrary to popular belief, the purpose of cash bail is not to detain dangerous suspects but to ensure they show up for court, even if holding people for bail will incidentally prevent defendants from committing additional crimes if they cannot afford to pay.

However, pretrial detention with or without bail can have additional harms, including an increased likelihood of recidivism, so that must be weighed against any immediate threat to public safety.

The elimination of cash bail and the amendments to the corresponding pretrial detention provisions is where the SAFE-T Act proves most controversial, and with good reason. Pretrial detention replaces bail to prevent the defendant from fleeing prosecution, but also serves to protect the public from the threat posed by dangerous defendants.

Before it was amended, the original SAFE-T Act set multiple standards for pretrial detention layered one on the other. These provisions would have made it difficult for prosecutors when petitioning to detain defendants that pose a threat to the public.

How the Current Law Works

Arrest

Under current law,[9] all arrested persons, regardless of offense, are to be taken without unnecessary delay to the nearest judge in the county.

The SAFE-T Act changes this[10] by limiting this procedure to solely offenses detainable under Section 110-6.1. Rather, these offenders would be issued a summons to appear within 21 days.

Initial Appearance in Court

Under the current law,[11] the judge determines, among other things, the bail amount needed for the defendant to go free until trial.

Release on Recognizance

Under the current law,[12] the court has the right to release the defendant on their own recognizance, meaning no bail, given three conditions: It unilaterally finds that:

1. The defendant will appear as required before or after conviction;

2. They do not pose a danger to any person or the community; and

3. They comply with all conditions of bond.

Monetary bail is only to be set if no other conditions of release will reasonably assure the defendant's appearance in court, presuming they pose no danger to any person or the community and comply with all conditions of bond. The state has the right to appeal any order of release on personal recognizance.

Pretrial Release and Bail

The current law[13] states all persons are bailable with certain exceptions, such as capital offenses, offenses that may warrant life imprisonment, felony offenses requiring imprisonment, and certain cases in which the defendant poses a real and present threat to the physical safety of anyone.

For bailable offenses, the court must account for[14] multiple factors when considering the bail amount, including the nature and circumstances of the charged offense, the motivation of the charged offense, potential gang affiliations of the defendant and the financial resources of the defendant.

The amount of bail shall be sufficient to assure compliance but not financially oppressive, considering the status of the defendant.

How the SAFE-T Act Change Things

Much of the confusion around the original SAFE-T Act came from the fact it imposes multiple layers of standards for pretrial detention contained in three separate subsections of the pretrial release section of existing law. That made it complicated to determine when a crime would or would not be eligible for detention.

Furthermore, it required prosecutors to prove a defendant posed a threat to a specific, identifiable person to deny pretrial release.

New Jersey,[15] the only other state that has come close to successfully eliminating cash bail statewide, does not place these stringent layers of standards on prosecutors.

The most recent amendment to the SAFE-T Act takes steps to address this issue.

Recent Amendment

Fortunately, changes were recently adopted in an amendment[16] to the act that was signed by Gov. J.B. Pritzker on Dec. 6. The amendment aims to address some of the many concerns of those opposed to the bill. Here are three things to know about this amendment.

1. The changes lessen the burden on prosecutors to detain dangerous defendants.

The SAFE-T Act requires in most cases that prosecutors identify a specific person or persons who are threatened by the release of a defendant before a judge can deny pretrial release. The changes will, in most cases, allow denial of pretrial release by showing a threat to the general community as well. This standard is like the one implemented in New Jersey.[17]

The amendment also expands the crimes that qualify to keep a person jailed before trial. It allows denial of pretrial release for any forcible felony where the defendant poses a threat to any persons or the community. In the original bill, forcible felonies subject to probation could be denied pretrial release only when there was a high likelihood the person would flee.

Finally, the bill removes some of the seeming contradictions in the Pretrial Fairness Act portion of the SAFE-T Act, clarifying procedures required for denial of pretrial release.

2. The revised bill expands support for public defenders.

The amendment creates a new public defender grant program to train and hire attorneys to assist county public defenders in pretrial detention hearings. The grant is to be funded by the state, subject to appropriation by the Illinois General Assembly.

The original bill also required that defense counsel be given adequate opportunity to confer with clients before any pretrial detention hearing; the amended bill allows the defense to confer with clients remotely without being recorded.

3. The changes were again rushed through the General Assembly, but not as quickly as the original SAFE-T Act.

This 308-page amendment[18] to the SAFE-T Act was adopted on Dec. 1, and the bill was voted on the same day,[19] without allowing the three days to read the amended bill that the spirit[20] of the Illinois Constitution's three-day reading provision would require.

However, unlike the original SAFE-T Act,[21] the amendment was filed three days before adoption and passage, giving lawmakers some time to review the actual text of the bill, if not much.

Conclusion

Cash bail and pretrial detention together impose an often unfair burden on poor defendants while allowing wealthy offenders to go free. Establishing a risk assessment system that mitigates that unfairness is a noble goal. But any such system must be clear and must balance the interests of the defendant with the risk to public safety.

While criminal justice reformers have been quick to celebrate the SAFE-T Act, the law was rushed through the legislative process. Some of the most important provisions when eliminating cash bail — those regarding pretrial detention — would have placed several confusing standards for prosecutors to meet to protect public safety.

Perhaps more importantly, these provisions would have required that the prosecution identify the threat posed to a specific identifiable person or persons, rather than to the general public, for a defendant to be denied pretrial release. This standard would have been higher than that of New Jersey, the only other state to come close to eliminating cash bail, without having to roll back its reforms.

Luckily, lawmakers were able to make last-minute fixes to the bill before it takes effect Jan. 1.

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Understanding Illinois' First-Of-Its-Kind Law Nixing Cash Bail