Illinois will become the first state in the U.S. to completely abolish the system of cash bail, after the Illinois Supreme Court ruled the state’s law accomplishing that goal does not violate the state constitution’s so-called “bail clause,” in part, because the meaning of “bail” in that clause is left up to state lawmakers to decide, the court’s majority said.
In the 5-2 ruling delivered July 18, the Democratic supermajority on Illinois’ high state court rejected the challenge to the provisions in the controversial, sweeping criminal justice reform legislation known as the SAFE-T Act, brought by a collection of Illinois county prosecutors.
In the decision, the high court gave courts in Illinois 60 days to scrap their traditional cash bail-based pretrial proceedings, and begin complying with the provisions of the SAFE-T Act in full when dealing with people charged with crimes, the state Supreme Court ruled.
Mary Jane Theis
| illinoiscourts.gov
The majority opinion was authored by Chief Justice Mary Jane Theis, with concurrence from her fellow Democratic justices P. Scott Neville, Joy V. Cunningham, Elizabeth Rochford and Mary K. O’Brien.
Republican justices David K. Overstreet and Lisa Holder White dissented.
In the ruling, the court’s majority said they believed the authors of the Illinois state constitution would have agreed that Gov. JB Pritzker and his allies in Illinois’ Democratic supermajority were within their constitutional authority to not only reform the cash bail-based system of pretrial release, but to scrap it altogether, without amending the state constitution.
“Legislative latitude in regulating pretrial release … was a fundamental underpinning of the bail clause,” Theis wrote for the majority. “The legislature has once again engaged in the process of bail reform, and its efforts are consistent with the drafters’ intent.”
They said the state constitution's right to "bail by sufficient sureties" was never intended to be used by courts to require criminal defendants to pay money to secure their release from jail while awaiting trial. Rather, they said, the use of cash bail was merely a tool that lawmakers allowed courts to use when balancing the rights of criminal defendants to remain free pending conviction at trial, and the rights of the public to remain safe from known criminal threats.
So, they said, lawmakers are free to take that tool away from judges now, and require courts to come up with other ways of trying to compel defendants to return to court to stand trial.
In the dissent, Overstreet and Holder White said the decision tramples on the language of the state constitution, which guarantees a right to “bail by sufficient sureties.”
The dissenting justices said that language means the framers of the state constitution intended for the courts to be able to use such tools as cash bond to both allow most criminal defendants to be released from jail while they await trial, and for the courts and prosecutors to meaningfully compel those same defendants to return to court throughout the pretrial and trial proceedings.
With this in mind, they said, lawmakers cannot just simply redefine “sufficient sureties” to mean whatever they wish it to mean. Rather, lawmakers wishing to redefine the bail clause should be required to actually amend the constitution to rewrite the bail clause, as at least one other state, New Jersey, has done.
“The right is not defined in these terms as the majority suggests,” Overstreet said. “Instead, the drafters used specific language, constitutionally binding the safety of victims and their families with the judicial act of setting the ‘amount of bail.’
“If our constitution has any meaning, the constitutional bond between these two policies simply cannot be severed by legislative decree or judicial fiat. The constitutional bond can be broken only by the same method that it was created.”
The decision overturns a ruling from Kankakee County’s chief judge, who had declared the so-called Pretrial Fairness Act had trampled the state constitution.
In that ruling, Kankakee County Chief Judge Thomas Cunnington found the state in abolishing cash bail through the SAFE-T Act had trampled both the powers granted to the judicial branch of state government and had essentially rewritten the state constitution “by legislative fiat.”
The ruling backed the contentions of a group of county state’s attorneys, who had asserted Pritzker and state lawmakers had essentially written bail out of the state constitution, despite language in the state’s charter document appearing to guarantee a system of bail and assuming the existence of bail amounts that can be set, denied or otherwise “fixed” to balance the rights of criminal defendants against the need for public safety and the rights of crime victims.
Following Judge Cunnington’s ruling, the Illinois Supreme Court had placed the abolition of cash bail on hold, until they could rule. That stay will now expire on Sept. 18, giving courts 60 days to comply with the law.
The constitutional challenge was led by Kankakee County State’s Attorney James Rowe, a Republican, and Will County State’s Attorney James Glasgow, a Democrat, on behalf of at least 64 county state’s attorneys and sheriffs from throughout the state.
The challenge landed in state court in 2022, as the provisions of the new state law abolishing cash bail were poised to take effect on Jan. 1..
Supporters of those provisions, including Pritzker and Illinois' Democratic legislative leaders, have argued the elimination of cash bail is needed to restore balance to the state’s criminal justice system. They argue the system has been marred by systemic racial discrimination. Proponents of bail elimination assert the cash bail system has particularly harmed Black and Latino populations, by forcing people of color who come from low-income households and have been charged with crimes to remain in jail while they wait months or years for their case to be sent to trial.
The state’s attorneys said they brought the challenge to speak for the people of Illinois. They have argued the law jeopardizes public safety by allowing criminals to remain free and potentially continue to commit crime as they await trial on other charges.
Further, the state’s attorneys argued, the law, by redefining the longstanding understanding of the term “bail,” denies Illinois citizens their constitutional rights to vote on whether to effectively rewrite the state constitution.
In response, Illinois Attorney General Kwame Raoul argued the state constitution imposed no limits on the ability of state lawmakers to redefine the term “bail.”
Raoul and his attorneys said the state constitution merely requires state lawmakers to maintain some kind of system of determining who should be held in jail prior to trial, to “safeguard defendants’ rights to seek pretrial release.”
They said the law allows judges to hold criminal defendants in jail if the court determines them to be a risk to public safety or that they are likely to flee before they stand trial. So, the attorney general argued, the law passes constitutional scrutiny.
The state’s attorneys argued that interpretation of the bail clause is too narrow, as it does not include any recognition of the powers and duties given to courts and prosecutors to ensure criminal defendants can’t continue to commit crimes while they await trial, flee or otherwise ignore the charges against them.
Prosecutors argued cash bail – the threat of economic loss to defendants or others who posted bond on their behalf – stands as the only real kind of guarantee that courts can enforce to make sure those charged with crimes ultimately stand trial.
In explicitly declaring the abolition of cash bail constitutional, the majority decision did not address Raoul’s contention that the state’s attorneys standing under the law to bring the challenge.
Raoul had argued that the law only applied to criminal defendants, so only a criminal defendant could challenge the law on constitutional grounds.
Several justices, however, including the dissenting justices and Justice O’Brien, in a special concurrence, said they believed the state’s attorneys had acted within their authority to bring the challenges.
Nonetheless, O’Brien sided with her Democratic colleagues on the greater question of the constitutionality of cash bail.
O’Brien and her colleague, Justice Rochford, were elected last November, thanks in large part to hefty support from the state’s Democratic establishment, including Pritzker, who donated $1 million to each of their campaigns.
Their election increased the Democratic majority on the court from 4-3 to 5-2.