Illinois’ unprecedented move to eliminate cash bail — finalized by Tuesday’s landmark state Supreme Court decision — drew cheers from national reformers and put local court officials on the clock to completely revamp the way they make pretrial decisions.
The state’s highest court Tuesday gave the Constitutional sign-off to legislation that means money will no longer play a role in determining whether people accused of crimes are held in jail while awaiting trial. Instead, they can only be held if they’re charged with certain crimes and a judge determines them a danger to the public or a threat to flee.
Insha Rahman, vice president at the Vera Institute, a national organization that works to end mass incarceration, said she thinks Tuesday’s decision will embolden other states to make reforms, by showing that such laws can withstand political backlash. Rahman said she was hopeful Illinois would prove that eliminating bail can make things more fair without risking public safety.
“We can do the thing that many of us in the criminal justice reform world say often, which is: We can have both safety and justice,” she said.
Locally, the opinion drew cheers from many Democratic politicians, with Illinois House Speaker Emanuel “Chris” Welch, D-Hillside, sharing photos on social media of his and Gov. JB Pritzker’s gleeful faces upon learning about the decision.
TFW you learn Illinois is no longer criminalizing poverty! These snapshots show the exact moment Gov. Pritzker and I received the Supreme Court decision that makes Illinois the first state in the nation to ensure violent offenders can no longer buy their way out of jail. This is… pic.twitter.com/rOqZEi93Mh— Speaker Emanuel “Chris” Welch (@SpeakerWelchIL) July 18, 2023
Cook County court leaders and the top prosecutor for north suburban Lake County also supported the end of cash bail, but otherwise state’s attorneys throughout Illinois pushed back against the legislation.
McLean County State’s Attorney Erika Reynolds was one of many Illinois prosecutors who joined in the legal challenge to the new law, claiming the change violated the state’s constitution. Hours after the decision was handed down, Reynolds said she took an oath to uphold the law even if she disagrees. But she stood by her original concerns about public safety.
“There are going to be instances where we think detaining somebody is appropriate under the facts, and we’ll be unable to do so,” she said.
“We have to have more resources”
The new law will mean major changes in court operations. For example, state’s attorneys will have to present more information and evidence to hold someone in jail. They will also have to notify victims of detention hearings. And many predict that without the cudgel of pre-trial detention, fewer defendants will strike plea deals, meaning more criminal trials. All that will take more resources.
Leading up to the original implementation deadline on Jan. 1, 2023, the state Supreme Court held training sessions to help county court systems prepare. Reynolds said her office has been readying itself for months and is in a fairly good position. But she said she still has concerns about resources because of what will now be asked of state’s attorneys.
“It’s no secret that across the state, there is an attorney shortage. That is not unique to my office or any state’s attorney’s office. That is an issue with not only state’s attorneys offices, but public defenders’ offices across the state, this will exacerbate that problem,” Reynolds said. “We have to have more resources available to us than we currently do.”
DuPage County State’s Attorney Bob Berlin said his county has what they need, but he worries about areas with fewer resources. “It is going to be a real issue in some of the smaller counties,” he warned.
“We’ll need more public defenders to assist with those hearings. We likely will need more judges to handle the hearings,” said State Rep. Patrick Windhorst, R-Metropolis, a former state’s attorney from southern Illinois’ Massac County.
Sarah Staudt, an attorney with the Illinois Network for Pretrial Justice, said she actually expects counties will save money because of shrinking jail populations.
“If the court system needs more resources, that’s a really good place to get resources from,” she said.
“A nationwide system … built on a cash bail”
Advocates for eliminating cash bail said they believe the change could improve public safety, by not allowing dangerous people to pay their way out of jail — and by helping courts devote more resources to serious crimes.
Staudt said detaining people in jail can also destabilize their lives and make it more likely they will commit a crime in the future.
“We know that the best way to ensure universal public safety is to use jail as little as possible, and only use it in situations where there’s a real and present threat to public safety. And that’s exactly what the Pretrial Fairness Act does,” Staudt said.
Jennifer Bishop-Jenkins has lost family members to murder and she played a key role in passing Marsy’s Law for Illinois, which enshrines the rights of crime victims.
“And so the first thing I needed to do was go and look at the language of what has been now approved by the Illinois Supreme Court. And it does very clearly lay out factors that would protect public safety, and that would protect victims and persons in the community.”
Law enforcement organizations stood against the measure while it was originally debated in the statehouse and continued standing against it as lawmakers made changes to try and appease some concerns.
Jim Kaitschuk, executive director of the Illinois Sheriff’s Association, said he was disappointed in the Supreme Court’s decision.
“We’ve had a system that has been built on this. It’s not just Illinois but a nationwide system that has been built on a cash bail system,” he said.
And Kaitschuk said law enforcement officers will have their own issues navigating implementation of the new law. He said police will still be able to remove suspects from a situation where they’re causing a disturbance — but they’ll have to start evaluating whether they can be held in jail.
“If we had somebody that was arrested for disorderly conduct, we would want to remove them from the situation where they were at,” Kaitschuk said about the concept of “cite and release.” “So we would take them to the jail, have them booked, and then they would be released at that point in time … we’re going to have to work with our judges and state’s attorneys to try to figure out exactly what’s that mechanism that we’re going to utilize [to determine whether they’re held]?”
Berlin, the DuPage County prosecutor, said he is not opposed to ending cash bail. However, he doesn’t think the current law gives judge’s enough discretion to hold a person awaiting trial.
“What I have consistently said is that, look, if you’re going to eliminate cash bail, you have to give judges the ability to detain in any criminal case, because it may just be a criminal damage to property. But what if the police find that the person has a list of people they want to kill? That person is a danger to the community.”
Berlin said reforms to the law, since it was originally passed, make more offenses detainable, but it still does not go far enough.
Meanwhile, Donald Hackett, secretary of the Illinois Fraternal Order of Police, expressed concern that repeat offenders would get released and cause officers more strain. He also worried some correctional officers at jails would lose their jobs because of the dropping population.
“Morale went down several more notches” with the Supreme Court decision, he said.
Opponents of cash bail have pushed back on the idea that releasing more people pre-trial will mean an increase in crime. Loyola University researchers studied a change in Cook County policy in 2017 that increased the number of people released from jail while awaiting trial and found it “was not associated with any significant change in new criminal activity, violent or otherwise.”
“Trailblazers for the entire country”
Reformers across the country are looking to Illinois to see if this kind of massive change can be done successfully. And they have a lot riding on local courts implementing the changes effectively.
Illinois State Rep. Justin Slaughter, D-Chicago, said Illinois lawmakers are “trailblazers for the entire country.”
Rahman said Illinois will provide a test case for how these laws can work, which she believes will “add to the body of growing research that having a system that’s based on safety and not money is actually better for public safety and also more fair.”
Rahman acknowledged that eventually a terrible case will happen, in which a person released pre-trial under the new law commits an act of violence. She said she is hopeful the press will not only focus on those stories, and instead highlight people helped by the changes.
“For every one terrible incident there are thousands and thousands of successful cases,” Rahman said.