The future of cash bail in Illinois is in the hands of the state’s Supreme Court.
Illinois passed a law that eliminated the use of cash bail starting on January 1, 2023 as part of the SAFE-T Act. Under the law judges could no longer require people to pay money in order to leave jail while they await trial. Instead, judges could only keep a person behind bars pretrial if they meet criteria that shows they are likely to flee or pose a safety risk.
But prosecutors across the state filed lawsuits challenging the law’s constitutionality. After a lower court judge ruled in their favor, it was placed on hold until the Illinois Supreme Court could make a final decision. Here are five things to know before oral arguments in front of the Illinois Supreme Court on Tuesday.
1. A key question for justices is what the word “bail” actually means.
The Illinois constitution promises the right to bail to everyone, except people charged with certain offenses.
The state’s attorneys who are trying to overturn portions of the Safe-T act argue that when the constitution says people “shall be bailable by sufficient sureties”— that includes cash bail. So lawmakers can’t get rid of monetary bail without going through the difficult and cumbersome process of changing the constitution first.
But defenders of the SAFE-T Act say that definition of bail is wrong. In court filings they argue the language in the constitution simply means defendants have the right to freedom while they await their trial. They argue “bail” can be non-monetary and include other conditions that would make sure a person returns to court, for example, electronic monitoring.
2. Victim rights groups and criminal justice advocates say eliminating cash bail will make communities safer. A police group argues the opposite.
A coalition of 426 organizations and individuals filed a document with the Illinois Supreme Court arguing that the elimination of cash bail will make communities safer. That coalition includes victim rights groups like the Illinois Coalition Against Domestic Violence. They point to studies that show when reliance on cash bail was reduced in Cook County, there was no statistical effect on crime.
They write that when people are unable to pay bail, they “often lose their jobs, housing, health care, family and social ties, and potentially custody of their children.” And when people’s lives are destabilized, that makes communities less safe.
The Fraternal Order of Police Lodge 7, which represents over 11,500 sworn Chicago police officers, also filed a document with the court. They said eliminating cash bail would have a “drastic adverse impact on the work and safety of its members, their families, the community they serve, and the work of all law enforcement officers across Illinois.”
They say “less detention results in more crime, including violent crime.”
3. Arguments come in the midst of a mayoral election in Chicago, where public safety is front and center.
Chicago continues to face the stubborn problem of gun violence and Chicago voters say they’re most concerned about crime and public safety. Both candidates in the mayoral runoff, Paul Vallas and Brandon Johnson, have highlighted the issue of cash bail in Illinois.
Johnson is a proponent of the SAFE-T Act, which he says will “have a tremendous impact on people who languish in our criminal justice system simply because they cannot afford to pay bail.”
Vallas, on the other hand, has said ending cash bail will make things worse. He’s raised concerns that the SAFE-T Act will allow people charged with violent crimes or previous convictions back on the streets.
There is not a timeline for when the case will be decided.
4. The lower court judge who ruled against the SAFE-T ACT was Republican, but the Illinois Supreme Court is majority Democrat.
Kankakee Judge Thomas Cunningham is a Republican. But five of the seven Illinois Supreme Court judges were elected as Democrats.
Democrats pushed the SAFE-T act through the legislature and Democratic judges could be more friendly to arguments that protect the new law.
But the debate over cash bail doesn’t break entirely along party lines. For example, some of the state’s attorneys who sued over the law are Democrats. And the court has four justices that are new, so don’t have a long record of Supreme Court decisions to analyze.
5. One of the key arguments is about the separation of powers.
As you may remember from middle school social studies, each branch of government (judicial, executive, and legislative) has a distinct job with its own powers and responsibilities.
Critics of the SAFE-T Act say the law blurs those boundaries, because the legislative branch is telling judges what to do. But defenders of the law say that is wrongheaded. They argue lawmakers have authority to regulate how the court operates. For example, lawmakers have set mandatory minimums, which shape how judges can sentence a person.
