SPRINGFIELD 鈥 Beginning Jan. 1, 2023, cash bail will be abolished in Illinois.
The measure that will eliminate it has been on the books since early 2021, giving the justice system two years to plan for the major overhaul of the state鈥檚 pretrial detention system.
It鈥檚 also given time for the measure to become politicized to a point where the reality of the law has become indistinguishable from the political rhetoric surrounding it.
鈥淎s I've said many times, what we want to make sure doesn't happen is that someone who's wealthy and commits a terrible violent crime 鈥 it could be, by the way, a wealthy drug dealer 鈥 doesn鈥檛 have an easy time getting bail compared to somebody who maybe commits shoplifting and for a couple of hundred dollars is stuck in jail,鈥 Gov. JB Pritzker .
But opponents and advocates of the reform agree that, beyond simply ending cash bail, the law seeks to reduce the number of people incarcerated before a guilty verdict by limiting the circumstances in which a judge can order pretrial detention.
Republicans and state鈥檚 attorneys have continued to fight for changes to the law, up to a full repeal, arguing that while the intent may be to empower judges to detain more dangerous individuals, the bill as written is too limiting.
A nonpartisan task force formed under the Supreme Court, meanwhile, is working to assist with implementation in the justice system ahead of Jan. 1 and has identified unclear or contradictory sections of the bill that lawmakers should reconsider before Jan. 1.
鈥淚t is frustrating because many aspects of the statute are not clear,鈥 retired Judge Robbin Stuckert, who chairs the , said at . 鈥淭hey may be vague, gray areas. And again, we are charged by the Supreme Court to assist with implementation.鈥
The law鈥檚 sponsors in the General Assembly said they are working with the task force on legislation clarifying some of those matters 鈥 particularly when it comes to detainable offenses 鈥 for potential passage this fall.
Pretrial detention
The provision to end cash bail, known as the Pretrial Fairness Act, was included in the SAFE-T Act criminal justice reform passed in a January 2021 lame duck session. Short for Safety, Accountability, Fairness and Equity-Today, was a broad-ranging initiative backed by the Illinois Legislative Black Caucus in the wake of a nationwide reckoning with racism in the criminal justice system following the death of George Floyd under the knee of a Minneapolis police officer.
It was passed by the Senate after an all-day session on Jan. 13, 2021, then cleared the House hours later. Pritzker signed it a month later.
It has been amended twice, about use of force standards, some pretrial matters and changing language about police body cameras. But provisions regarding cash bail have not been amended since the bill鈥檚 2021 passage.
The goal of the Pretrial Fairness Act was clear: to move away from the existing wealth-based system of pretrial detention in favor of one based on an offender鈥檚 level of risk of reoffending or fleeing prosecution.
Keith Grant, a Lake County public defender and , said that citing and releasing people committing less serious offenses provides better outcomes, saves taxpayer money and frees officers to remain on the beat.
鈥淲e find that when defendants are detained even for as little as, , three days, they can become destabilized to the point of lacking all of the social netting resources that they would have otherwise had,鈥 Grant said. 鈥淜eeping people in custody when they don't need to be actually creates a risk of harm to the community.鈥
The Loyola University of Chicago鈥檚 Center for Criminal Justice Research that showed that from 2020 to 2021, individuals jailed pretrial in Illinois spent an average of 34 days incarcerated.
The report predicted the numbers would decrease under the PFA for those committing lesser offenses while likely increasing for those held on more serious offenses because they can鈥檛 free themselves on bail.
The report further analyzed U.S. Department of Justice data which showed that in 2019, 50 percent of jail detainees in Illinois were Black compared to 15 percent of the population at large; 33 percent were white compared to 76 percent of the population; and 14 percent were Hispanic compared to 18 percent of the population. The racial disparity numbers were driven by Illinois鈥 three largest counties.
Of those detained, 82% were being held on felony charges and 89% were being held pretrial.
The new law abolishes cash bail and provides for for misdemeanors, traffic offenses and other petty offenses, provided a defendant is not deemed a risk to the community by the arresting officer.
Kane County Chief Judge Clint Hull, a task force member, said at a July town hall that the arresting officers will maintain similar discretion as they are afforded under current law.
鈥淒o they pose an obvious threat to the community or any person or are they a risk to鈥 their own safety?鈥 he said. 鈥淚n both situations, if they are, the police 鈥 despite the fact that this isn't the most serious offense 鈥 (do) have the discretion to bring that person in to try to make sure that they can identify and address that issue.鈥
In most cases, individuals committing misdemeanors or petty offenses will receive a citation from law enforcement and a court date within 21 days.
Pretrial hearings
After the initial arrest, as under current law, judges will determine whether detention continues.
Under current law, bail hearings typically occur within 72 hours of arrest and last less than five minutes. Prosecutors detail the defendant鈥檚 charges and may recommend a bail amount. The judge then decides the conditions of their release, including how much money, if any, the defendant must post before their release from custody.
Under the PFA, the hearings will be more intensive. Defendants are given a right to legal representation and prosecutors can detail their reasons for continued detention.
鈥淥ne of the primary goals of the law is to make sure that we're having in-depth, detailed hearings when we're taking away someone's freedom,鈥 said Sarah Staudt, an advocate with the Chicago Appleseed Center for Fair Courts, which worked with lawmakers on the bill.
Prosecutors wishing to keep an individual detained would petition the court for pretrial detention.
Upon petition, the law requires an 鈥渋mmediate鈥 detention hearing which could coincide with the defendant鈥檚 first appearance in court. If a continuance is requested and granted, in serious felony cases to hold such a hearing.
The court would have the authority to detain an individual pending a continuance.
For pretrial detention to be ordered, the state must prove 鈥渂y clear and convincing evidence鈥 that the defendant committed the crime, poses a specific threat to a person or persons and that no other pretrial conditions can mitigate the defendant鈥檚 risk to that person or persons.
It鈥檚 a heightened standard that prosecutors have warned may be too difficult to meet within the short timeline, but advocates say is necessary to protect a constitutional presumption of innocence.
For lesser offenses, the court would have 24 hours to conduct the same procedure. The PFA makes no exception for holidays or weekends.
Limits to detention
State鈥檚 attorneys have been the most vocal critics of the law as written, arguing that it leaves too little leeway for judges to detain dangerous individuals in certain circumstances.
Among them is Republican DuPage County State鈥檚 Attorney Bob Berlin, who said he was not opposed to ending cash bail in principle.
鈥淚 want to stress, this is very fixable,鈥 Berlin said. 鈥淚'm not one of the people out there saying 鈥極h, repeal repeal, just get rid of it.鈥 We can fix this. And we can fix it before January 1.鈥
John Curran 鈥 an implementation task force member, GOP state senator and former assistant Cook County state鈥檚 attorney 鈥 said he also didn鈥檛 oppose ending cash bail, but he saw several shortcomings with the system replacing it.
He, Berlin and other state鈥檚 attorneys have called on Illinois to emulate a system put in place in New Jersey in 2017, which eliminates cash bail but gives greater discretionary authority to judges to impose pretrial detention than does Illinois鈥 law.
鈥淭he first big difference is New Jersey doesn't limit the number of offenses that are detainable,鈥 Berlin said in an interview. 鈥淣ew Jersey allows judges to detain in any criminal offense, which would include misdemeanors. We believe that judges are in the best position to make decisions about who should be detained or not.鈥
While the PFA does not create categories of offenses that are 鈥渘on-detainable鈥 under every circumstance, it does, as written, create circumstances in which a judge would have no statutory authority to detain a defendant that doesn鈥檛 have a prior record or present a risk of fleeing prosecution.
estimated that a judge would not have been able to detain the defendant in 56 percent of arrests that occurred statewide in 2020 and 2021 had the PFA been in place.
From 2020 to 2021, according to the research, 193,387 people were admitted into jails statewide each year, with 90 percent held for some length pretrial. Due to varying lengths of pretrial detention, the report estimated there were between 13,827 to 15,994 people being held pretrial daily.
Once the PFA is implemented, between 44,000 and 70,000 individuals per year will be eligible for initial detention, the report estimated.
About 70 percent of those would be in relation to domestic violence or violations of order of protections, according to the study, which is one reason the SAFE-T Act had support from .
鈥淚f post-COVID trends continue,鈥 , 鈥渢hat means somewhere between 89,000 and 115,000 individuals per year could not be initially detained under the PFA once the law goes into effect on January 1, 2023.鈥
Detention standards
Curran鈥檚 and Berlin鈥檚 concern lies in the language beginning on page 370 of the which lays out the specific circumstances in which a judge can order pretrial detention.
The language allows a judge to deny pretrial release if a defendant is a danger to an individual or the community and is accused of non-probational offenses such as first-degree murder, as well as aggravated arson, residential burglary, stalking, domestic battery, certain gun offenses and several specified sex offenses.
While misdemeanors and other low-level offenses are generally non-detainable under the new law, all charges become detainable if the defendant is already on pretrial release, probation or parole.
The language also allows detention for individuals charged with a forcible felony 鈥渇or which a sentence of imprisonment, without probation, periodic imprisonment or conditional discharge, is required by law upon conviction.鈥
The task force has noted that language specifically excludes offenses for which a defendant is eligible for probation. Berlin said that means, under the law as written, judges cannot order pretrial detention of an individual accused of second-degree murder, drug trafficking, arson, robbery, aggravated battery, threatening a public official and other probational offenses unless prosecutors prove they are a risk for 鈥渨illful flight鈥 from prosecution.
The willful flight standard, unlike the dangerousness provision, can be applied to anyone committing a crime greater than a Class 4 felony 鈥 which includes many property crimes and offenses such as aggravated DUI and driving on a revoked license 鈥 who is deemed by a judge as 鈥減lanning or attempting to intentionally evade prosecution by concealing oneself.鈥
But because the law states that past non-appearances in court are 鈥渘ot evidence of future intent to avoid prosecution,鈥 Berlin said it will be difficult to prove.
鈥淚 mean, you鈥檝e gotta show that they鈥檝e got a ticket to get out of town,鈥 Berlin said.
Advocates, on the other hand, say the differentiation between the willful flight and dangerousness standards was intentional, although further changes may be forthcoming.
鈥淚f someone's going to cooperate with the prosecution in a nonviolent case, we don't want a situation where they're being detained,鈥 Staudt said.
Sen. Robert Peters, a Democrat and Senate co-sponsor of the law, said he鈥檚 open to discussions about amending the bill鈥檚 willful flight standards and detainable offense language based on the Pretrial Implementation Task Force鈥檚 recommendations.
鈥淎nytime you take human life and you're saying I'm going to take away their freedom, that should be somewhat of a higher standard,鈥 he said. 鈥淲hat I again will say is that I'm willing to have conversations about the practices of this.鈥
Rep. Justin Slaughter, a Chicago Democrat and the law鈥檚 House sponsor, said language regarding detainable offenses in the existing bill is 鈥渕isleading鈥 and 鈥渦nclarified,鈥 and his plan is to address it in follow-up legislation this fall.
鈥淲e will have a system that prioritizes public safety, and we will have a system (in which)鈥 there's no such thing as a non-detainable person,鈥 Slaughter said when asked about the goal of follow-up legislation at a Thursday news conference.
He declined to go into specifics due to ongoing discussions.
Curran, who said he鈥檚 been pushing for such changes since January 2021, noted another section of the bill states that 鈥渁t each subsequent appearance鈥 in court, a judge must find that continued detention of a defendant is necessary 鈥渢o avoid the specific, real and present threat to any person or of willful flight from prosecution to continue detention of the defendant.鈥
Curran said that will make it more difficult to detain an individual after their first appearance by leaving out a community safety standard that鈥檚 included elsewhere in the bill.
The task force identified the language as problematic, and advocates have said standardizing the language throughout the bill will be a goal of follow-up legislation.
Other concerns
Another problem, the task force and others have noted, is that the statute does not address what happens to those already held in lieu of bail when the calendar hits Jan. 1.
鈥淭here is nothing in the law that requires those suspected of crimes be let out of prison when it goes into effect,鈥 Pritzker鈥檚 spokesperson, Jordan Abudayyeh, said in a statement, suggesting that jurisdictions begin considering what happens to those individuals and scheduling hearings.
Stuckert, however, said the law鈥檚 silence on the matter leaves it to interpretation in court.
鈥淓very meeting that I go to鈥 the first thing they say to me, 鈥榃hat happens January 1?鈥 and I say, 鈥業 don't know,鈥欌 she said.
For Berlin, the response is 鈥渢o be determined,鈥 with his county considering holding hearings for affected individuals in the final months of 2022 while awaiting potential clarity from lawmakers.
As well, only 34 of Illinois鈥 102 counties currently have pretrial service offices, which play a major role in preparing pretrial investigations for release condition and detention hearings and ensuring individuals appear in court.
The Illinois Supreme Court, in August 2021, established an a sprawling new entity that will provide pretrial services in at least 68 counties. It鈥檚 working to hire the necessary staff for statewide implementation.
The task force also heard concerns that the tight deadlines laid out in the new law will create difficulties for small, rural counties, where court is not in session daily, jails are miles away and attorneys are in short supply.
Follow-up bill
Thus far, the implementation task force has been creating guidance documents that include flow charts for how defendants should be treated throughout the pretrial process as well as considerations for jurisdictions creating new policies ahead of Jan. 1.
鈥淲e have no idea what will happen in veto session (when lawmakers next return to the Capitol),鈥 she said in an interview. 鈥淏ut we're prepared to do whatever we can 鈥 to prepare all justice system partners for any changes that may come to fruition in a (follow-up bill).鈥
Slaughter said lawmakers are working with the task force to address concerns. He鈥檚 currently sponsoring , a 219-page bill that, among other changes, seeks to standardize the detention language. It was filed in January, has no cosponsors and likely does not represent a final bill.
While court officials like Berlin have engaged lawmakers regarding potential changes, several others have raised broader alarms and pushed for a full repeal 鈥 an outcome unlikely with Democrats in control of the General Assembly and governor鈥檚 office at least through the PFA鈥檚 effective date.
At a news conference with county sheriffs earlier this month, GOP governor candidate and state Sen. Darren Bailey pushed for a full repeal and didn鈥檛 offer alternative amendments he鈥檇 work to implement. He said he believed repeal would be possible because he believed the Pretrial Fairness Act was tied to unspecified property tax increases.
At a Sept. 14 news conference, Pritzker reiterated he supports the new law but didn鈥檛 say when changes would happen or to what extent they are necessary.
鈥淎re there changes or adjustments that need to be made? Of course,鈥 he said. 鈥淎nd there have been adjustments made and there will continue to be. Laws are not immutable.鈥
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government that is distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.
