Illinois is eliminating cash bail this year—if its supreme court lets it.

In 2021, the state enacted the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act, which Paul Mauro has previously discussed in City Journal. The hastily enacted law contained a host of criminal-justice provisions ranging from the sensible to the shocking—from requiring cops to use body cameras (albeit with an impractically intricate set of rules), to declaring that an escape from electronic monitoring doesn’t count until someone has been in violation for 48 hours. After further debate and public pushback, some of the worst elements of the law (including the electronic-monitoring provision) were clarified, revised, or eliminated through several rounds of amendments.

But the most notable part remained. The elimination of cash bail was set to go into effect on New Year’s Day. At first, most of the controversy over that provision centered on obvious questions, such as whether the new system would make it unduly difficult for judges to detain offenders who pose a safety threat or won’t return to court. The law creates a presumption in favor of release that can be overcome with “clear and convincing” evidence to support detention or conditions.

But now the big debate is legal, pertaining to whether various provisions of the Illinois constitution actually mandate the existence of cash bail. Elected state’s attorneys from about 60 counties challenged the law, and as the New Year approached, the judge handling the consolidated cases found the no-bail provisions unconstitutional. To avoid a situation where the policy went into effect in some counties but not others, the Illinois supreme court simply put the provisions on hold until it can settle the matter.

The decision from circuit judge Thomas W. Cunnington lays out the strongest legal arguments against the elimination of cash bail, while rejecting some more aggressive claims that would have invalidated the entire statute, not just the bail provisions.

The Illinois constitution explicitly mentions bails in two places. In one, it declares that “All persons shall be bailable by sufficient sureties,” except in cases involving certain severe offenses “where the proof is evident or the presumption great” (amendments over the years have broadened the list of exceptions). In the other, the constitution grants to crime victims “the right to have the safety of the victim and the victim’s family considered in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.” The document also explicitly requires the separation of powers, declaring that the three branches are “separate” and that “no branch shall exercise powers properly belonging to another.”

The no-bail law’s opponents hold, essentially, that these provisions create a system where judges require bail of “sufficient sureties” for pretrial release while considering the safety of crime victims in setting the amount, and that if the legislature doesn’t like that, it should amend the state constitution, not just pass a statute stripping another branch of government of the ability to do what the constitution says. Additionally, per Illinois case law, the judiciary has an inherent power to decide matters of court administration, of which setting bail to ensure a defendant’s return is one.

But these arguments have weak points, as a carefully written brief from the defendants shows. The Illinois constitution certainly countenances the existence of bail, but the relevant question is whether it requires it. The guarantee that all persons are “bailable by sufficient sureties,” for instance, is part of the state bill of rights and found in many other state constitutions. Its purpose is to guarantee defendants a right to pretrial release. The SAFE-T Act is, of course, far more friendly to defendants than the previous system was, and the release conditions still allowed can count as “sureties,” defined in Black’s Law Dictionary as “formal assurance; esp., a pledge . . . given for the fulfillment of an undertaking.”

Similarly, despite its explicit reference to “denying or fixing the amount of bail,” the crime-victim provision was meant to ensure victims’ interests are considered as judges go about their duties, not to “usher in substantive changes to the criminal justice system—or constitutionalize existing statutory schemes relating to pretrial release or any other matter of criminal procedure.”

And while Illinois case law does support an inherent right of the judiciary “to deny or revoke bail when such action is appropriate to preserve the orderly process of criminal procedure,” the state legislature has “long asserted its authority to determine the standards and procedures governing pretrial release without constitutional challenge,” in statutes dating back to 1964. This is similar to the way that legislatures set punishments for crimes while judges actually impose the sentences. The SAFE-T Act does limit judges’ discretion when it comes to pretrial release, but not “unduly” so.

Finally, legal arcana, such as standing, justiciability, and facial versus as-applied challenges, could give the court some options for punting—letting the law go into effect for now but be challenged again later.

A decision should come soon, as Illinois’ highest court is expediting the matter. In the weeks ahead, it’s poised to decide whether the state will embark on the ambitious and risky experiment its legislators have adopted—or if the state constitution forbids it.

Photo: Devrimb/iStock


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