Illinois became the first state to abolish cash bail as a condition of pretrial release when a new law known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act took effect Monday.
In 2021, Illinois lawmakers passed, and the governor signed, a comprehensive package of criminal legal system reforms that changed the state’s statutory framework for the pretrial release of people charged with crimes.
Specifically, the new law eliminated monetary bail and created a default rule that “[a]ll persons charged with an offense shall be eligible for pretrial release” on personal recognizance, subject to conditions imposed by the trial court, such as electronic monitoring or home supervision.
The law allows prosecutors to seek—and judges to order—pretrial detention in certain specified cases. A defendant charged with an enumerated felony offense may be ordered detained if the court finds the person “poses a real and present threat to the safety of any person or persons or the community.”
The court may also order a defendant detained pretrial if they have been charged with an enumerated offense or any felony other than a Class 4 offense and if the court concludes there is “a high likelihood of willful flight to avoid prosecution.”
Under the new law, all defendants are presumed eligible for pretrial release, and will not be detained unless the prosecutor proves they qualify for pretrial detention.
On September 16, 2022, the prosecutor and sheriff in Kankakee County filed a lawsuit challenging the constitutionality of the new law’s pretrial release provisions. Prosecutors and sheriffs in 64 counties joined the suit against the governor, attorney general, and leaders of the Illinois House and Senate.
On December 28, 2022, the Kankakee County trial court granted the plaintiffs’ motion for summary judgment. The defendants appealed to the Illinois Supreme Court, which stayed the act’s provisions pending the outcome of the appeal.
On July 18, 2023, the state’s highest court reversed the lower court and upheld the new law.
“The Illinois Constitution of 1970 does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public,” Justice Mary Jane Theis wrote for the court. “Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims. The Act’s pretrial release provisions set forth procedures commensurate with that balance.”
The court ordered trial courts across the state to begin implementing the new law on September 18, by conducting hearings in the cases of people detained pretrial on cash bail to determine if they should be released.
In Cook County, where hearings reportedly got off to a smooth start, proponents of the SAFE-T Act said the new provisions allow judges to detain people who actually pose a danger to the public or a risk of fleeing prosecution.
“This bill, this law was worked on in conjunction with advocates—victims’ rights advocates, domestic violence advocates, those who have been impacted by this system—who have seen people who have been able to pay their way out of jail and cause harm,” Cook County State’s Attorney Kim Foxx told CBS. “This effort to detain those who hold a real threat to our public rather than detain those who are simply poor is the right thing to do.”
Cash bail has long been criticized as unfair and discriminatory. Last year, the U.S. Commission on Civil Rights found stark racial and gender disparities in cash bail systems, citing a study showing that bail amounts for Black men were 35% higher than for white men, and Latino men received bail amounts 19% higher than white men.
The number of people detained pretrial increased more than 400% between 1970 and 2015, the commission found. And with more than 60% of defendants detained pretrial because they cannot afford to post bail, the report also found that pretrial detainees make up nearly three-quarters of the 631,000 people jailed daily in the U.S.