Illinois is first state to eliminate cash bail, a penalty affecting low-income communities most

By John O’Conner

On July 18, 2023

SPRINGFIELD, Ill. (AP) — Illinois became the first state in the nation to eliminate cash bail as a condition of pretrial release from jail on Tuesday when the state Supreme Court upheld the constitutionally of the law abolishing it.

The 5-2 ruling overturns a Kankakee County judge’s opinion in December that the law violated the constitution’s provision that “all persons shall be bailable by sufficient sureties.” Chief Justice Mary Jane Theis, writing for the majority, decreed that the law honors the constitution’s balance between the rights of victims and defendants.

Proponents of eliminating cash bail describe it as a penalty on poverty, suggesting that the wealthy can pay their way out of jail to await trial while those in economic distress — particularly people of color — have to sit it out behind bars. A pandemic-era increase in crime spurred debates on bail reforms.

While other states and municipalities have enacted changes to cash bail, notably New Jersey, Illinois is the first to abolish it. Instead, judges can decide that a defendant poses too much of a threat to the community to allow release, or that defendant can be released with conditions such as avoiding contact with a particular person or not visiting a certain place, according to the Bail Project.

Critics have argued that bail is a time-honored way to ensure defendants released from jail show up for court proceedings. They warn that violent criminals will be released pending trial, giving them license to commit other crimes.

Abolishing bail was part of an expansive criminal justice overhaul adopted in 2021 known as the SAFE-T Act. It was a piece of the groundbreaking “four pillars” agenda of the Illinois Legislative Black Caucus, approved with the aim of improving the lives of marginalized communities following the police killings of George Floyd and others in the previous year.

A Kankakee County judge, ruling on a lawsuit brought by county state’s attorneys and sheriffs, found that because the constitution mentions “bail,” it would take a constitutional amendment approved by voters to make such a change.

Theis countered in her opinion of the case, known as Rowe v. Raoul, that the constitution “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.”

Theis said that the charter “creates a balance” between the rights of defendants and victims and the law abolishing bail “sets forth procedures commensurate with that balance.”

When the Supreme Court received the direct appeal from the local court, it stopped the scheduled Jan. 1, 2023 implementation of the law. Theis ordered that it take effect in 60 days, on Sept. 18.

Gov. J.B. Pritzker, on a trade mission to the United Kingdom, hailed a “transition to a more equitable and just Illinois.”

“We can now move forward with historic reform to ensure pre-trial detainment is determined by the danger an individual poses to the community instead of by their ability to pay their way out of jail,” the Democrat said in a statement.

Justice David K. Overstreet dissented, arguing that the law violates the constitution’s Crime Victims Bill of Rights, which voters added in 2014. He said it gives victims the right “to have their safety and the safety of their family, considered in denying or fixing the amount of bail.” Changing that requires voter approval, not just legislative fiat.

Kankakee County State’s Attorney Jim Rowe, the lead plaintiff in the lawsuit, calling the ruling “terribly detrimental to public safety” but pledged to abide by it. Another plaintiff, Kankakee County Sheriff Michael Downey, noted the decision was divided along party lines.

“This opinion will embolden criminals even more which is what our governor seems to want,” Downey said.

New Jersey essentially eliminated cash bail in 2014, replacing it with a risk assessment process which gauged the potential danger to the community a defendant posed if released. But there are instances where cash bail is still allowed, as is the case in other states which have curtailed the practice, such as New York and Alaska.

In spring 2020, the Illinois Supreme Court Commission on Pretrial Practices strongly endorsed bail reform, noting that found that a defendant who can’t afford bail sees his or her life unravel within days — loss of a job, loss of child custody, health problems without access to medication.

What’s more, the commission found that it tends to generate spurious plea deals. Defendants reason that pleading to a lower-level offense gets them out of jail sooner.

Joining Theis in her opinion were Justices P. Scott Neville Jr., Joy V. Cunningham and Elizabeth M. Rochford. Justice Mary K. O’Brien specially concurred with her own opinion.

Justice Lisa Holder White joined Overstreet in his dissent.

This piece was republished from The Associated Press.