What would happen if cash bail ended in Illinois?

Beginning Jan. 1, 2023, cash bail is scheduled to be abolished in Illinois.

The measure that would eliminate it, the Pretrial Fairness Act [PDF], part of the SAFE-T Act, has been on the books since early 2021, giving the justice system two years to plan for the major overhaul of the state’s pretrial detention system.

It’s 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. It is currently No. 1 on Snopes Hot 50 list of urban legends, under the heading, "Does Illinois’ SAFE-T Act Make Some Violent Crimes Non-Detainable Before Trial?" A meme from WCFN News says the law creates a category of "non-detainable offenses" - a phrase that doesn't appear in the law.

One of the controversial sentences that does appear in the law is, “Detention only shall be imposed when it is determined that the defendant poses a specific, real and present threat to a person, or has a high likelihood of willful flight.”

According to opponents, that means people accused of forcible felonies such as second-degree murder, robbery, burglary, arson, kidnaping and aggravated battery could go free unless a judge decides they are a flight risk or a threat to another individual.

Ironically, under current law, Illinois does that kind of thing all the time, even with inmates convicted of these felonies - it's called probation. The Pretrial Fairness Act, of course, only applies to people awaiting trial. But it makes the assumption that if convicted felons can sometimes be released early, then maybe people who haven't been convicted yet can be released too.

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Gov. JB Pritzker stated at a news conference in August, “As 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 – it could be, by the way, a wealthy drug dealer – doesn’t have an easy time getting bail compared to somebody who maybe commits shoplifting and for [the lack of] a couple of hundred dollars [for bail] is stuck in jail.”

At the other end of the spectrum of opinions, GOP candidate for governor  candidate Darren Bailey has pushed for a full repeal of the law, saying that its supporters "care more about making life easier for criminals." At a news conference with county sheriffs earlier this month, Bailey didn’t offer any alternative amendments that he would 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.

Republican John Cabello, a Rockford police detective running to represent Roscoe and Rockton in District 90 of the Illinois General Assembly , said the Illinois General Assembly had passed a "Criminal Justice Reform bill that hampers law enforcement and makes legal what should be illegal. I will work to repeal that legislation either in part or in whole..." When he was a state representative before, he tried to speak against the bill and says he was not allowed to.

But then, besides cash bail, the SAFE-T Act has other provisions which Cabello could object to. It also affects other aspects of the criminal justice system, such as "pre-arrest diversion, policing, pretrial, sentencing, and corrections," says the Illinois Criminal Justice Information Authority, which is responsible for implementing much of the law. Cabello has not yet responded to our request for comment.

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Many opponents of the Pretrial Fairness Act are not necessarily opposed to eliminating cash bail. Many of them agree that lack of money can unjustly keep low-income people in jail, not because they're dangerous or a flight risk (or even guilty), but only because they don't have enough money for bail.  Winnebago County States Attorney J Hanley, though he strongly criticizes the Pretrial Fairness Act, says that Illinois "would do well to model its pretrial fairness law after New Jersey’s 2017 move to a cashless bail system," which gives judges more discretion to keep people behind bars when they feel it's justified.

Both opponents and advocates of the reform agree that, beyond simply ending cash bail, the Pretrial Fairness Act 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’s 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.

“It is frustrating because many aspects of the statute are not clear,” retired Judge Robbin Stuckert, who chairs the Pretrial Implementation Task Force, said at a July town hall meeting. “They may be vague, gray areas. And again, we are charged by the Supreme Court to assist with implementation.”

The law’s sponsors in the General Assembly said they are working with the task force on legislation clarifying some of those matters – particularly when it comes to detainable offenses – 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, the SAFE-T Act 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 just before 5 a.m. 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, addressing law enforcement concerns about use of force standards, clarifying some pretrial matters and changing language about police body cameras. But provisions regarding cash bail have not been amended since the bill’s 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’s level of risk of reoffending or fleeing prosecution.

Keith Grant, a Lake County public defender and Pretrial Implementation Task Force member, said that citing and releasing people committing less serious offenses provides better outcomes, saves taxpayer money and frees officers to remain on the beat.

“We find that when defendants are detained even for as little as, research shows, three days, they can become destabilized to the point of lacking all of the social netting resources that they would have otherwise had,” Grant said. “Keeping people in custody when they don't need to be actually creates a risk of harm to the community.”

The Loyola University of Chicago’s Center for Criminal Justice Research analyzed Illinois State Police data that showed that from 2020 to 2021, individuals jailed pretrial in Illinois spent an average of 34 days incarcerated. Even if they were later acquitted, after missing a month of work, they might find they have no job to go back to.

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’t 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’ three largest counties.

Of those detained, 82 percent were being held on felony charges and 89 percent were being held pretrial.

The new law abolishes cash bail and provides for a presumption in favor of release 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.

“Do they pose an obvious threat to the community or any person or are they a risk to… their own safety?” he said. “In both situations, if they are, the police – despite the fact that this isn't the most serious offense – (do) have the discretion to bring that person in to try to make sure that they can identify and address that issue.”

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’s 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.

“One 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,” 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 “immediate” detention hearing which could coincide with the defendant’s first appearance in court. If a continuance is requested and granted, the court would have 48 hours in serious felony cases to hold such a hearing [PDF].

The court would have the authority to detain an individual pending a continuance.

For pretrial detention to be ordered, the state must prove “by clear and convincing evidence” 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’s risk to that person or persons.

It’s 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’s 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’s Attorney Bob Berlin, who said he was not opposed to ending cash bail in principle.

“I want to stress, this is very fixable,” Berlin said. “I'm not one of the people out there saying ‘Oh, repeal, repeal, just get rid of it.’ We can fix this. And we can fix it before January 1.”

John Curran – an implementation task force member, GOP state senator and former assistant Cook County state’s attorney – said he also didn’t oppose ending cash bail, but he saw several shortcomings with the system replacing it.

He, Berlin and other state’s 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’ law.

“The first big difference is New Jersey doesn't limit the number of offenses that are detainable,” Berlin said in an interview. “New 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.”

While the PFA does not create categories of offenses that are “non-detainable” under every circumstance, it does, as written, create circumstances in which a judge would have no statutory authority to detain a defendant, such as a trespasser, if he doesn’t have a prior record or present a risk of fleeing prosecution.

Another Loyola University study 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 anti-domestic violence groups. Stalkers can still get arrested for trespassing, and if convicted, sentenced to 1-6 months in jail and a maximum $500 fine.

But most defendants would be eligible for release. “If post-COVID trends continue,” the report reads, “that 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.”

Detention standards

Curran’s and Berlin’s concern lies in the language beginning on page 370 of the 764-page SAFE-T Act 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 such as trespassing 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 “for which a sentence of imprisonment, without probation, periodic imprisonment or conditional discharge, is required by law upon conviction.”

Page 370 of the SAFE-T Act shows one of the conditions in which a judge can revoke pretrial release.

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 “willful flight” from prosecution.

The willful flight standard, unlike the dangerousness provision, can be applied to anyone committing a crime greater than a Class 4 felony – which includes many property crimes and offenses such as aggravated DUI and driving on a revoked license – who is deemed by a judge as “planning or attempting to intentionally evade prosecution by concealing oneself.”

Page 334 and 335 of the SAFE-T Act shows what prosecutors must prove to detain an individual as a risk of willful flight of prosecution.

But because the law states that past non-appearances in court are “not evidence of future intent to avoid prosecution,” Berlin said it will be difficult to prove.

“I mean, you’ve gotta show that they’ve got a ticket to get out of town,” 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.

“If someone's going to cooperate with the prosecution in a nonviolent case, we don't want a situation where they're being detained,” Staudt said.

Sen. Robert Peters, a Democrat and Senate co-sponsor of the law, said he’s open to discussions about amending the bill’s willful flight standards and detainable offense language based on the Pretrial Implementation Task Force’s recommendations.

“Any time you take human life and you're saying I'm going to take away their freedom, that should be somewhat of a higher standard,” he said. “What I again will say is that I'm willing to have conversations about the practices of this.”

Rep. Justin Slaughter, a Chicago Democrat and the law’s House sponsor, said language regarding detainable offenses in the existing bill is “misleading” and “unclarified,” and his plan is to address it in follow-up legislation this fall.

“We will have a system that prioritizes public safety, and we will have a system (in which)… there's no such thing as a non-detainable person,” 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’s been pushing for such changes since January 2021, noted another section of the bill states that “at each subsequent appearance” in court, a judge must find that continued detention of a defendant is necessary “to avoid the specific, real and present threat to any person or of willful flight from prosecution to continue detention of the defendant.”

Curran said that will make it more difficult to detain an individual after their first appearance by leaving out a community safety standard that’s 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.

“There is nothing in the law that requires those suspected of crimes be let out of prison when it goes into effect,” Pritzker’s 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’s silence on the matter leaves it to interpretation in court.

“Every meeting that I go to… the first thing they say to me, ‘What happens January 1?’ and I say, ‘I don't know,’” she said.

For Berlin, the response is “to be determined,” 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’ 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 Office of Statewide Pretrial Services, a sprawling new entity that will provide pretrial services in at least 68 counties. It’s 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.

“We have no idea what will happen in veto session (when lawmakers next return to the Capitol),” Stuckert said in an interview. “But we're prepared to do whatever we can … to prepare all justice system partners for any changes that may come to fruition in a (follow-up bill).”

Slaughter said lawmakers are working with the task force to address concerns. He’s currently sponsoring House Bill 5537, 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 – an outcome unlikely with Democrats in control of the General Assembly and governor’s office at least through the PFA’s effective date.

At a Sept. 14 news conference, Pritzker reiterated he supports the new law but didn’t say when changes would happen or to what extent they are necessary.

“Are there changes or adjustments that need to be made? Of course,” he said. “And there have been adjustments made and there will continue to be. Laws are not immutable.”

This article was written by Capitol News Illinois bureau chief Jerry Nowicki, with additional reporting by Michael McGinnis. 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.