• Ben Szalinski
    JUL 18, 2023


    Supreme Court to issue cash bail ruling at 9 a.m. Tuesday  

    The Supreme Court is set to post a ruling at 9 a.m. on Tuesday.

    Two-and-a-half years after it was first passed by lawmakers, the Illinois Supreme Court will announce the final fate Tuesday morning of a proposal to end cash bail Illinois.  

    Illinois lawmakers voted to eliminate cash bail in January 2021 as part of the sweeping criminal justice reform package called the SAFE-T Act. The change was set to take effect on Jan. 1 this year, but the state Supreme Court stepped in days before to block the law and allow a multitude of legal challenges from mostly Republican state’s attorneys to move through the court system.   

    Related: State’s attorneys ask Supreme Court to preserve cash bail as state argues General Assembly’s changes are consistent with constitution   

    The Supreme Court heard the case of Rowe v. Raoul on March 14 as Republican Kankakee County State’s Attorney Jim Rowe led a challenge on behalf of 60 state’s attorneys who argued the lawmakers didn’t have the power to eliminate cash bail.   

    “The simple way for the legislature to accomplish all of these reforms: take the question, put it on a ballot, propose it to the people, let them vote on it in an election,”Rowe told the court.    

    Article 1, Section 9 of the Illinois Constitution says “all persons shall be bailable by sufficient sureties” except if charged with a capital offense or situations where a life sentence could be imposed.   

    Related: Deciphering the Pretrial Fairness Act: What the law does  

    State officials defending the law have pushed back and said the Pretrial Fairness Act, the portion of the SAFE-T Act that eliminates cash bail, is compliant with the constitution because it still sets conditions of release for a person after they’re arrested, and bail doesn’t have to be monetary.   

    Under the law, people charged with misdemeanors and some felonies can be released with a ticket for a court appearance without having to go to jail and post bond. State’s attorneys can petition the court to hold people charged with forcible felonies in jail while they await trial. If the judge rules a person should be held, they will not be able to bond their way out of jail.      

    The law does not list non-detainable or detainable offenses, but rather lists forcible felonies, including domestic violence, stalking and any crime with a firearm. Prosecutors will have to convince a judge a person is a threat to society or a flight risk if they are released from jail before trial, most often following forcible felony charges. People charged with nonviolent felonies such as retail theft or drug possession will be more likely to be released under the changes.  

    The Pretrial Fairness Act was an initiative of the Legislative Black Caucus that aimed to create a more equitable legal system after racial justice protests in 2020. The act gives Illinois the distinction of being the first state to entirely eliminate cash bail in favor of a risk-based pretrial detention system.  

    The change was a major point of controversy in the 2022 election. Republican candidates led by gubernatorial candidate Darren Bailey and attorney general candidate Tom DeVore used the proposed law to argue Democrats were pushing policies that would worsen crime because people didn’t have to post bail to get out of jail. Democrats pushed back trying to correct frequent misstatements by Republicans about the law, but they also used the fall 2022 veto session to fix problems in the Pretrial Fairness Act.  

    While partisan politicians argued about the merits of the law, the Illinois Supreme Court convened a task force to create guidelines for criminal justice systems around the state to implement the law when it took effect on Jan. 1. The Pretrial Implementation Task Force has issued a series of flow charts and other directions for counties to use to implement the law, which could begin as early as Tuesday if it is upheld by the Supreme Court.   

    Democrats hold a 5-2 majority on the Supreme Court, which has prompted supporters of the proposal to express confidence the court will approve eliminating cash bail. During the March hearing, some Democratic justices even doubted the state’s attorney’s legal standing in the case.  

    “Are you saying everyone, every lawyer in the state of Illinois, has standing to challenge a statute they just don’t like?” Chief Justice Mary Jane Theis, a Democrat, asked Rowe.  

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