Illinois Supreme Court upholds law eliminating pretrial cash bail

Illinois officially became the first state to eliminate cash bail as a condition of pretrial release from jail. The Illinois Supreme Court upheld a law abolishing cash bail on Tuesday, July 18.

The law was originally set to take effect Jan. 1, 2023. It was part of the SAFE-T Act, passed in 2021, which aimed to overhaul the state’s criminal justice system following the police killings of George Floyd and other members of marginalized groups.

“I’m pleased that the General Assembly has passed clarifications that uphold the principle we fought to protect: to bring an end to a system where wealthy violent offenders can buy their way out of jail, while less fortunate nonviolent offenders wait in jail for trial,” Gov. JB Pritzker, D-Ill., said in a statement announcing his signing of the bill in December of 2022. “Advocates and lawmakers came together and put in hours of work to strengthen and clarify this law, uphold our commitment to equity, and keep people safe.”

Opponents to eliminating cash bail in Illinois argued bail is a time-honored way to ensure defendants released from jail show up for court proceedings. They also warned that violent criminals will be released pending trial, giving them license to commit other crimes.

The lawsuit challenging the law was brought by county state’s attorneys and sheriffs. A Kankakee County judge found that since the Illinois constitution mentions “bail,” it would take a constitutional amendment approved by voters in order to eliminate cash bail. Tuesday’s Supreme Court ruling reversed the lower court ruling.

“First, the trial court ignored the plain language of the constitution. The bail clause does not include the term ‘monetary,’ so it did not cement the practice of monetary bail, however long-standing and prevalent across Illinois, into our constitution,” the state Supreme Court wrote in its opinion. “Second, the trial court correctly recognized that the bail clause strikes a finely constructed balance between the interests of criminal defendants in pretrial release and the interest of the state ‘obtaining the greatest possible assurance’ that the defendant will appear for trial… as well as the state’s interest in public safety, but the court incorrectly assumed that abolishing monetary bail undermines the state’s interest. The court appeared to believe that monetary bail is the only way to assure a defendant’s presence and to protect the public. In doing so, the court elevated the system of monetary bail over the plain language of the bail clause.”

While other states and cities have made changes to their cash bail systems, Illinois is the first state to outright abolish it. In 2014, New Jersey replaced its cash bail system with a risk assessment process that gauged the potential danger to the community a defendant posed if released. New York and Alaska have also taken steps to curtail cash bail.