Illinois Will Be The First State to Eliminate Cash Bail After New Illinois Law Takes Effect In 2023

On January 1, a laundry list of laws impacting the Illinois criminal justice system will go into effect, including one eliminating the state’s cash bail system, making it the first in the nation to completely get rid of cash bail.

The broad 700-page criminal justice reform bill, originally passed in January of 2021 called SAFE-T Act (Safety, Accountability, Fairness, and Equity – Today), addresses a large range of issues statewide including prison policy, policing, and pretrial court processes and pretrial detainment protocols. 

The SAFE-T act will mean that a judge cannot order payment of bond before release for any criminal defendant but other fees and charges can still be accumulated. 10% of every bond in most counties in Illinois used to be retained by the courts after the rest of the bond was returned.

The issue the law is hoping to tackle is a national one, with the U.S. Commission on Civil Rights releasing a January 2022 report on the civil rights implications of cash bail finding that between 1970 and 2015, there was a 433 percent increase in the number of individuals who have been detained pre-trial.

The report found that  60 percent of defendants are detained pre-trial because they can’t afford to post bail and the effects of pre-trial detention can include “an increased likelihood of being convicted, an increased likelihood of housing insecurity, detrimental effects on employment, and an increased likelihood to engage in criminal conduct in the future.”

“More than half-a-million unconvicted people sit in jails across the nation awaiting trial,” said Norma V. Cantú, Chair of the U.S. Commission on Civil Rights when the report was released.  “Presumption of innocence is the bedrock of our criminal justice system, with liberty the rule and pre-trial detention intended to be a ‘carefully limited exception, under the current bail system, it has become the norm,” Cantú said.

The first in the nation law has seen multiple amendments since it was originally passed, including a December amendment effectively ending cash bail.

“I’m pleased that the General Assembly has passed clarifications that uphold the principle we fought to protect: to bring an end to a system where wealthy violent offenders can buy their way out of jail, while less fortunate nonviolent offenders wait in jail for trial,” Governor JB Pritzker said when the cash bail amendment was effectively added in early December of this year.

The December amendments also focused on the court authority in controlling electronic monitoring and escape, amending guidelines for trespassing violations, and the creation of a grant program that is supposed to aid overworked public defenders. 

“This legislation builds on the foundation we set in the SAFE-T Act by making certain that provisions are clearer, more effective, and less difficult to implement,” Democratic State Representative Eva-Dina Delgado said,”Institutional barriers within the criminal justice system have disproportionately affected people in the communities that I represent and this legislation addresses that disparity.”

Some police forces and politicians have come out in opposition to the law including a call earlier this year to completely repeal the cash bail ban legislation, partially due to a lack of consensus on its effectiveness of reducing crime, lessening racial inequality within the criminal justice system and a large amount of misinformation circulating around the issue.

“One major reform is that all defendants shall be presumed eligible for pre-trial release. This puts the burden on the state to prove, by ‘clear and convincing’ evidence, that the defendant has committed an offense and poses a real and present threat to public safety” wrote former Riverside, Illinois Police Chief Tom Weitzel.

“Officers simply will not file felony charges when they believe offenders will not be held accountable or have bond assigned to them in court,” Weitzel said in September, “One can debate the merits of that, but it will happen unless there is some modification in the SAFE-T Act.” 

Although there is no national consensus on how to tackle bail reform and pre-trail detention practices across the country, scholars like law professors Wendy R. Calaway and Jennifer M. Kinsley emphasize the need for action in a scholarly piece they wrote on bail reform:

“The policies and practices around pretrial detention have contributed to the country’s mass incarceration numbers; created a crisis for local jail management; generated unsustainable budgets; and raised important questions about race, class, and the constitutional implications of incarcerating people because they are too poor to pay a money bond,” Kinsley and Calaway wrote.