What to expect when cash bail ends in Illinois

The Illinois Supreme Court ruled ending cash bail is constitutional. What does that mean for Illinois? It means ready or not, the system changes Sept. 18.

The Illinois Supreme Court on July 18 ruled as constitutional a new law making Illinois the first state to eliminate cash bail, and giving local law enforcement a Sept. 18 start date.

The Pretrial Fairness Act portion of the SAFE-T Act originally suffered from conflicting and layered standards for detaining suspects before trial, but was amended to attempt to address the concerns of prosecutors and law enforcement. The changes established a more uniform standard for pretrial detention and expanded the kinds of crimes that qualified for pre-trial detention as well as allowed judges to detain suspects who pose a threat to the public or to identifiable individuals.

These changes bring Illinois more in line with the bail reform enacted in New Jersey, which has largely been seen as a success even though it has had recent pushback.

Here’s what Illinois does now and what will change when the Pretrial Fairness Act ends cash bail starting Sept. 18.

What’s the law been on defendants being release before trial?

Under current law and until Sept. 18, all arrested persons, regardless of offense, are to be taken without unnecessary delay to the nearest judge in the county. The judge, among other things, determines the bail amount needed for the defendant to go free until trial.

The court has the right to release the defendant on his own recognizance, meaning no bail, given three conditions:

1. If it unilaterally finds the defendant will appear as required before or after conviction.

1. If the defendant does not pose a danger to any person or the community.

1. If the defendant complies with all conditions of bond. Those conditions are determined by a judge and typically include the requirement to obey the law, appear for court dates, to not leave the state without the permission of the court, and to not use drugs or alcohol or possess weapons. They could also include the requirement for electronic monitoring or for the defendant to avoid certain people or places.

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.

What changes Sept. 18?

The Pretrial Fairness Act changes the law by limiting pretrial detention to (1) forcible felonies, (2) any other felony in which the defendant poses a real and present threat to the safety of any person or persons or the community, or (3) if the defendant fulfills one of eight categories of offenses and meets the corresponding standard of threat to people or possibly the community. These include crimes such as stalking and weapons charges. Any other offenders would be issued a summons to appear within 21 days.

This revised act expands the number of offenses that qualify for pretrial detention and clarifies procedures required for denial of pretrial release. The new law allows defendants to be detained wherever they pose a threat to the community.

What will happen without cash bail?

While Illinois will be the first to abolish cash bail statewide, smaller jurisdictions have experimented with reducing their reliance on it, including Cook County. A study from the Prison Policy Initiative recorded positive results for public safety for four states and eight cities and counties that reduced or eliminated reliance on cash bail. These included state-level reforms in New Jersey and New York and city-level reforms in San Francisco and Washington, D.C.

In 2017 the chief judge of the Circuit Court of Cook County issued General Order 18.8A requiring courts to ascertain a defendant’s ability to pay bail and establishing a presumption of nonmonetary conditions for release, among other things. This order resulted in a 15% drop in the average daily jailed population between 2017 and 2023. In that same period, the average daily population subject to pretrial curfew with radio frequency monitoring went up 177%, from 353 to 976. Those subject to GPS monitoring went up 152% from 288 to 725 individuals.

In that time, 82% of felony defendants released have not been charged with any new offenses while out on bond, and over 96% have not been charged with a violent offense.

Cash bail was not originally intended to detain dangerous suspects but to ensure they showed up for court, even if holding people for bail would incidentally prevent defendants from committing additional crimes. 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. Avoiding pretrial detention also avoids costs related to unemployment and increased rates of defendants committing additional crimes, both of which are associated with time spent in jail awaiting trial.

More needs to be done

Despite the potential positives of eliminating cash bail, the law doesn’t directly address the serious crime issues facing Illinoisans. Chicago has seen a spike in crime, and the city’s four deadliest years since 2000 were between 2016 and 2022. Some of the increase is difficult to disentangle from the conduct of state’s attorney Kim Foxx, who dropped more cases during her first three years in office than her predecessor, Anita Alvarez, did in her last three, nearly across the board regardless of the offense. According to the Chicago Police Department, overall crime is up 37% from this time last year and 56% from 2019.

Prosecutors will need more time and resources to meet the additional requirements to show a defendant is a danger to the community and should be detained. The state needs to implement policies to deal with the problem of rising crime for the benefits of no-cash release to be realized.

Those policies and needed actions include:

• Calibrating release requirements to the offense and the defendant’s previous record

• Creating a stronger Truth in Sentencing law that requires serious and repeat offenders to serve their full sentences

•  Using Chicago’s home rule powers to enact policies that empower police, ensure accountability for more serious offenses and provide transparency to the public regarding the pretrial release of those suspected of serious offenses.