A crowd lobbying for the Pretrial Fairness Act in November. (Illinois Network for Pretrial Justice)
The Illinois Supreme Court ruled on Tuesday that a 2021 state law eliminating cash bail and strictly limiting pretrial incarceration in the state is constitutional, overturning a lower court's decision that had put the legislation in limbo.
With the green light from its highest court, Illinois will become the first state in the nation to abolish the use of money bonds, a practice that justice reform advocates have long said unfairly conditions pretrial liberty on wealth and weighs more heavily on low income defendants and especially people of color.
The court ruled 5-2 that the Pretrial Fairness Act, which was signed into law in February 2021 but never went into effect because of a legal challenge, doesn't violate the state constitution, and directed all courts statewide to end the use of cash bail on Sept. 18.
"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," Chief Justice Mary Jane Theis wrote for the majority.
In a challenge brought by Jim Rowe, the Kankakee County state's attorney, and a coalition of 58 state's attorneys and sheriffs, the circuit court of Kankakee County in December held that certain provisions of the law violated portions of the Illinois Constitution dealing with bail, victims' rights and the separation of power. The ruling effectively stalled the implementation of the law, which was supposed to kick in on Jan 1.
The Illinois Network for Pretrial Justice, a broad coalition of advocates that supported the legislation, hailed the state high court decision as a major victory that will make the justice system fairer, pointing out that money bond has disproportionately affected Black people.
"Today's ruling in favor of the Pretrial Fairness Act ensures that Illinois will end money bond, one of the most glaring injustices in our criminal legal system," the coalition said in a statement. "Ending money bond addresses both economic justice and racial justice issues in the pretrial system."
The Cook County Public Defender's Office, which serves low-income defendants in Chicago and its suburbs, said the decision was the strongest possible ruling upholding the constitutional arguments for ending money bonds.
"Using money as the determining factor in whether someone goes to jail or goes home was a broken policy that often produced terrible results," Cook County Public Defender Sharone R. Mitchell Jr. said. "By ending money bond, Illinois is now in position to make these serious decisions without stripping millions of dollars from the communities who can least afford it."
The Pretrial Fairness Act, which was passed as part of a wider overhaul touching several areas of the criminal justice system, is one of the boldest reforms to pretrial justice yet.
The law completely removes money bail for any type of offense and replaces it with an individualized process for judges to use in determining whether defendants should be incarcerated before trial.
The act identifies charges for which individuals can be detained and those for which they cannot. At the first court appearance following an arrest, a judge will determine whether a defendant is detainable. If yes, a prosecutor can move to detain the defendant.
At a detention hearing held immediately or within 48 hours of first the court appearance, during which the defendant may be detained, a judge will determine whether there is probable cause to believe the person committed the offense, whether the person poses a public safety or flight risks, and whether there are conditions that mitigate those risks.
Judges will be able to use a risk assessment tool that uses certain factors specific to each defendant, and they will have to incorporate other criteria, such as a person's ties to the community, role within a household and lack of past crimes.
"In general, what the system is now supposed to do is provide judges with a more comprehensive way to individualize the cases that come before them," Kareem Butler, a fellow at Chicago Appleseed Center for Fair Courts, told Law360. "Historically, what money bond has really done is serve in a lot of ways as a stand-in for that individualized decision making."
Every year, an average of 250,000 people are jailed in Illinois, many of them while they await trial, according to advocates' figures.
Advocates said eliminating money bonds is a matter of racial justice, calling the bail system a revenue generator that targets people of color the most: In 2020, Illinois collected more than $120 million in bond money.
Rep. Justin Q. Slaughter, D-Chicago, a chief sponsor of the broader bill called the SAFE-T Act, said pretrial incarceration has historically caught people of color in a cycle of poverty.
"When we look at this mass incarceration crisis, it's important that we address overly punitive criminal justice policies that push individuals, mainly black and brown people, communities, deeper into our system," he said. "If you're accused, but the courts deem you safe to remain in the community, this is a very big deal."
Butler said the implementation of the law will blaze a trail for other jurisdictions.
In recent years, other states have moved to drastically reimagine the justice system with the intent to solve inequalities and incarcerate fewer people.
New York and New Jersey passed laws that severely limited the use of bail but stopped short of abolishing it altogether. A nationwide increase in crime in 2021, as COVID-19 pandemic restrictions were lifted, has slowed and sometimes stymied the bail policy advocates' momentum, and some of those reforms were rolled back.
In the spring, New York's ambitious bail law, which went into effect in 2020, was curbed for the third time. Around the country, Texas, Indiana and Wisconsin have pushed for tougher bail policies.
Tuesday's ruling by the Illinois Supreme Court is sure to galvanize activists who have made abolishing money bail a priority nationwide.
"This is a really major victory for the hundreds of thousands of people who are locked up in our jails across the state every year, simply because they can't buy their freedom," Butler said. "This means a chance for people to be able to go home and spend time with their loved ones, a chance for people to really be able to give back to their communities and contribute. This is a huge, really monumental win for us."
Bail elimination supporters pointed to research in states that have changed their policies in recent years that has shown no increase in crime overall. At the same time, studies found evidence that spending even a short time in jails, which are typically unsafe and unsanitary, has the effect of pushing people to commit more crimes once they're out.
Kimberly Foxx, the state's attorney for Cook County, which includes Chicago, called the ruling "historic" and said it will make sure that people are not criminalized for things such as poverty. Foxx criticized her counterparts in other Illinois counties for not supporting the law.
"The fact of the matter is out of 102 state's attorneys, there were only two who said that this was the right thing to do," she said. Lake County State's Attorney Eric Reinhardt also supported the law.
In a statement posted on the Kankakee County State's Attorney's official Facebook page, Rowe, whose county south of Chicago is predominantly white, called the ruling disappointing and continued on his criticism of the law, which he called "terribly detrimental to public safety."
"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," Rowe said.
Chris Southwood, the president of Illinois Fraternal Order of Police, which represents about 34,000 officers, asserted in a statement that the ruling "confirms Illinois' status as the state of lawlessness and disorder."
"Many of those offenders will commit crimes again within hours of their release," he said.
During a press conference following the ruling, a group of bail reform supporters that included state's attorneys, politicians and victims' rights organizations blasted what they described as the efforts of right-wing officials to spread misinformation about the law.
"Despite what those on the right may have wanted you to believe there was strong support for eliminating cash bail in the northwest and western suburbs," said Sen. Ann Gillespie, a Democrat representing suburbs northwest of Chicago. "Propaganda disguised as newspapers designed to stoke fear in the suburbs largely failed."
--Editing by Brian Baresch.
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