By VIVIAN KOPKA
On Monday, September 18, 2023, Illinois was the first state to abolish cash bail. The Pretrial Fairness Act, which institutes this, is designed to limit pretrial incarceration by eliminating cash bail, reducing and checking the power of police and judges, and much more.
The act is a provision to Illinois’ Safety, Accountability, Fairness, and Equity Today (SAFE-T) Act, which aims to reform the entire criminal justice system. The case made it all the way to the Illinois Supreme Court, in which its constitutionality was questioned.
Many aspects of the SAFE-T Act have been in practice since it passed in 2021, but because attorneys challenged the legality of ending cash bail, it was not until the summer of 2023 that the Pretrial Fairness Act was declared constitutional, and not until just recently that the act took effect. Cash bail is essentially a deposit. If someone is convicted of a crime, they will receive a monetary value from a judge that the convicted person must pay to wait out their court date outside of a jail cell, at home. Once the person shows up to their court dates, they will get their money back. It is supposed to be an assurance that the convicted person will show up for their trial. However, many people, especially poor people and people of color, are unable to afford bail.
Although bail is just a promise of one’s return to court, a significant number of convicted people wait for their trials in jail. According to the Prison Policy Initiative, 69 percent of all people in city and county jails in the United States who are awaiting a case are behind bars. This means that the majority of people in the country cannot currently afford bail. The new system allows most people to be eligible for pretrial release, regardless of status.
With the Pretrial Fairness Act’s implementation, cash bail is eliminated; moreover, it changes the entire way the court system looks at pretrial incarceration. So, a judge can only order the holding of someone before a trial unless they pose a significant risk of flight or to others’ safety.
The judge’s power to use risk assessment tools is checked and limited. Risk assessment is a scoring system by a judge to determine whether a person who is under investigation is “at risk” to others, and is used to set bail. Courts in the state of Illinois now require transparency on the scoring system and prefer a multitude of methods to assess eligibility for release. The act also allows the defendant to challenge the judge’s assessment and requires them to explain their reasoning.
Law enforcement has new perimeters for arrest and detainment to reduce pretrial incarceration. These conditions include the use of tickets as a substitute to arrest, the release of people accused of a misdemeanor, and the release of people who have been scheduled a court date. Illinois puts in place more guidelines for domestic violence cases, like informing the victim of an initial detention hearing and providing the victim with resources about acquiring protective orders. Violations of pretrial release are also less punishable offenses. For example, missing a court date is downgraded from a potential felony to a misdemeanor.
While the Pretrial Fairness Act is much more dense than described above, the act importantly aims to ensure appearance in court and public safety with the least infringements on one’s freedoms necessary. A meme about the Pretrial Fairness Act, the rumors of an “Illinois purge”, surfaced this past winter. According to the meme, Illinois was going to let criminals run free in 2023. The act does not, contrary to the purge meme, in any way, keep criminals out of prison. Pretrial Fairness implementations will lead to fewer accused people in pretrial detention centers, but it will not lead to the release of convicted criminals.
Aside from the internet jokes, important questions have been raised as the case has developed. Justice Joy Cunningham of the Illinois Supreme Court, in an interview with the Round Table, talked about one of the major dissenting opinions in the courtroom. Attorneys from smaller counties argued that cash bail is a major form of funding for administrative services of local courts. “All of a sudden, if this revenue was gone, they have to plug holes in the budget,” Cunningham stated. While the elimination of cash bail does pose a threat to certain county courts, It did not hold up as a constitutional argument. In fact, the Illinois state constitution does not use the word “cash” or “money” at all when referring to bail. The purpose of bail is simply to ensure that a person returns to court.
Justice Cunningham expressed that although the Act has been implemented, there could still be a motion for reconsideration, which means the case could make its way back to the courtroom. Typically, a motion for reconsideration, or petition for rehearing (P.F.R.), is typical when the votes are close or if it seems like a law has been misinterpreted. In the case of Rowe V. Raoul, the case that argued the constitutionality of the Pretrial Fairness Act, there was a majority of 5-2, but it could still go back to the court since it is such a detailed and socially relevant piece of legislation. Because of the uncertainty of whether the case will end up back in court, Cunningham refrained from commenting on anything that is not of public knowledge.
Featured Image: NPR Illinois
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