By: Sarah Wejman
Edited By: claire quan and emily yang
In December of 2022, Illinois was on track to become the first state to eliminate cash bail for defendants awaiting criminal trials with the Pretrial Fairness Act. Under this law, presumption of release was made the default. Part of the larger Illinois Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act, additional issues addressed in the bill included limiting “when defendants can be deemed flight risks…and preventing police from arresting non-violent trespassers.” [1]
However, the progress of this legislation was impeded after a Kankakee County judge ruled that the Pretrial Fairness Act was unconstitutional. After dozens of state attorneys had filed lawsuits in efforts to prevent the elimination of cash bail, Circuit Judge Thomas Cunnington found that the act violated the separation of powers principle. In a 36-page opinion, Judge Cunnington stated that the Illinois Supreme Court affirmed judges’ “independent, inherent authority to deny or revoke bail to ‘preserve the orderly process of criminal procedure.’” [2] He further stated that the more appropriate way to go about changing the bail in the pretrial release process would be to allow the electorate of Illinois to vote to amend the state's constitution. [3] In the 65 counties from which attorneys represented in this case, cash bail was to remain.
However, the case was appealed, and as a result of policy inconsistencies among counties due to the pending decision, the Illinois Supreme Court issued a stay on the Pretrial Fairness Act on December 31, citing an effort to “maintain consistent pretrial procedures throughout Illinois.” [4] The remainder of the bill took into effect the following day.
The proposal and near passing of removing cash bail in Illinois was quite controversial. Proponents of the bill, having long awaited it, were extremely disappointed; they argued that the use of cash bail disproportionately favors the wealthy, forcing those who are not as financially well off to be imprisoned. According to the U.S. Commission on Civil Rights, over 60% of defendants are imprisoned before their trial because they are unable to afford bail. [5] Cook County Public Defender Sharone Mitchell expressed that “[t]he use of money as a determining factor in whether somebody is going to be in or out of jail before trial is really just an abhorrent practice.” [6]
For many individuals who are unable to afford the bail, prison time can be a majorly disruptive force. One individual, Lavette Mayes, a 52 year old mother of two from the South Side of Chicago, told ABC News the burdens she endured: “I lost my business. I lost housing. I lost transportation, my vehicles. I lost everything just in the 571 days that I was incarcerated [awaiting trial].” [7] She was arrested after engaging in a physical fight with her mother-in-law during a divorce, which resulted in a trip to the hospital for both of them. Despite having no previous record, her bail was set at $25,000. Consequently, she spent over a year in prison before being able to afford bail with the help of her family and a charity organization. Ultimately, she was released and put on home monitoring. [8] Previously, she had a clean record, and expressed her disbelief as to why she was assigned such a costly bail.
However, there were many who supported cash bail to start with and were adamant that it remain in place. Given concerns over Chicago’s crime rates, opponents of the bill feared it would release dangerous criminals back onto the street and fuel illegal drug use. Orland Park Mayor Keith Pekau stated, “[w]hen I said that this is the most dangerous law I've ever seen, I believe that.” [9]
Despite these concerns, the act proposed exceptions that would keep violent criminals in jail until trial. These would include cases where there was “force against another person”, such as murder, criminal sexual assault, robbery, burglary, home invasion, and vehicular invasion. [10]
Additionally, studies indicate that, in counties and cities with bail reform, there was no correlated rise in violent crime. A report conducted by the Major Cities Chiefs Association found that “out of the 66 largest police jurisdictions, 63 saw an increase in at least one category of violent crimes in 2020,” but the majority of these still had cash bail. [11]
One advocate against abolishing cash bail, Illinois State Senator John Curran (R-Downers Grove) was in concurrence with the opposition on the issue that wealth shouldn’t determine whether one should be released from prison while awaiting trial. However, he states that judges still need, “broad discretion in making determinations on public safety with regards to who is detained and who isn’t.” [12] Despite this being an important role that the judge should have, it can still be fulfilled without cash bail because the right for judges to imprison somebody who is deemed dangerous to the public would not be revoked.
Although eliminating cash bail can initially seem dangerous, the evidence thus far shows that the increase in crime is unrelated to whether cash bail is present; rather, most major cities have an increase in crime due to other reasons such as the pandemic and an increasing distrust in police. Furthermore, judges are still given the power to imprison those who are a threat to society or individuals before their trial. Despite the legislation being a violation of separation of powers, there is still opportunity for bail reform. Instead of worsening poverty by putting nonviolent offenders in prison before their trial and posting infeasible bails, Illinois should add the issue of cash bail to their ballot and let the people vote to amend the state’s constitution.
Notes:
Miller, Andrew. “Controversial SAFE-T Act Takes Effect in Illinois Minus Key Provision Stayed by Judge.” Fox News, January 1, 2023. https://www.foxnews.com/us/controversial-safe-t-act-takes-effect-illinois-minus-key-pro vision-stayed-judge.
Rowe v. Raoul, No. 22-CH-16 (2022).
Gorner, Jeremy, and Madeline Buckley. “Kankakee County Judge Finds That Elimination of Cash Bail Provision in SAFE-T Act Is Unconstitutional.” Chicago Tribune, December 28, 2022. https://www.chicagotribune.com/politics/ct-illinois-bail-lawsuit-ruling-20221229-hxjlwtg elnft5ew2lpcsma7wzy-story.html.
Miller, “Controversial SAFE-T Act”
The United States Commission on Civil Rights’ Office of Civil Rights Evaluation. “The Civil Rights Implications of Cash Bail,” January 20, 2022.
Miller, “Controversial SAFE-T Act”
Moeder, Nicole, Devin Dwyer, and Isabella Meneses. “Illinois Set to Become 1st State to Eliminate Cash Bail.” ABC News, December 19, 2022. https://abcnews.go.com/Politics/illinois-set-become-1st-state-eliminate-cash-bail/story?id =95421342.
Moeder, “Illinois Set to Become”
Moeder, “Illinois Set to Become”
Miller, “Controversial SAFE-T Act”
Masterson, Matt. “Cash Bail Is Ending (or Partially Staying?) in Illinois. Here’s What You Need to Know.” WTTW News, December 28, 2022. https://news.wttw.com/2022/12/28/cash-bail-ending-or-partially-staying-illinois-here-s-w hat-you-need-know.
Lybrand, Holmes, and Tara Subramaniam. “Fact-Checking Claims Bail Reform Is Driving Increase in Violent Crime.” CNN, July 7, 2021. https://www.cnn.com/2021/07/07/politics/bail-reform-violent-crime-fact-check/index.htm l.
Paddock, Blair. “Lawmakers Discuss Pros, Cons of Ending Cash Bail.” WTTW News, January 19, 2021. https://news.wttw.com/2021/01/19/lawmakers-discuss-pros-cons-ending-cash-bail.
BIBLIOGRAPHY:
Gorner, Jeremy, and Madeline Buckley. “Kankakee County Judge Finds That Elimination of Cash Bail Provision in SAFE-T Act Is Unconstitutional.” Chicago Tribune, December 28, 2022.
https://www.chicagotribune.com/politics/ct-illinois-bail-lawsuit-ruling-20221229-hxjlwtg elnft5ew2lpcsma7wzy-story.html.
Lybrand, Holmes, and Tara Subramaniam. “Fact-Checking Claims Bail Reform Is Driving Increase in Violent Crime.” CNN, July 7, 2021.
https://www.cnn.com/2021/07/07/politics/bail-reform-violent-crime-fact-check/index.htm l.
Masterson, Matt. “Cash Bail Is Ending (or Partially Staying?) in Illinois. Here’s What You Need to Know.” WTTW News, December 28, 2022.
https://news.wttw.com/2022/12/28/cash-bail-ending-or-partially-staying-illinois-here-s-w hat-you-need-know.
Miller, Andrew. “Controversial SAFE-T Act Takes Effect in Illinois Minus Key Provision Stayed by Judge.” Fox News, January 1, 2023.
https://www.foxnews.com/us/controversial-safe-t-act-takes-effect-illinois-minus-key-pro vision-stayed-judge.
Moeder, Nicole, Devin Dwyer, and Isabella Meneses. “Illinois Set to Become 1st State to Eliminate Cash Bail.” ABC News, December 19, 2022.
https://abcnews.go.com/Politics/illinois-set-become-1st-state-eliminate-cash-bail/story?id =95421342.
Paddock, Blair. “Lawmakers Discuss Pros, Cons of Ending Cash Bail.” WTTW News, January 19, 2021. https://news.wttw.com/2021/01/19/lawmakers-discuss-pros-cons-ending-cash-bail.
Rowe v. Raoul, No. 22-CH-16 (2022).
The United States Commission on Civil Rights’ Office of Civil Rights Evaluation. “The Civil Rights Implications of Cash Bail,” January 20, 2022.
https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf.
