SPRINGFIELD, Ill. (CN) — The Illinois Supreme Court ruled 5-2 on Tuesday to uphold the state's abolition of cash bail, overturning a lower court judgment which found doing so violated the state constitution.
The state high court's decision secures Illinois' position as the first state in the union to abolish money bail. It comes more than two years after Democratic Governor J.B. Pritzker signed the abolition into law in February 2021 as part of the Safety, Accountability, Fairness and Equity-Today, or SAFE-T, Act. The act bars state judges from considering cash bail as a condition of pretrial release for criminal defendants.
"I'm pleased that the Illinois Supreme Court has upheld the constitutionality of the SAFE-T Act and the elimination of cash bail," Pritzker said in a prepared statement Tuesday. "We can now move forward with historic reform to ensure pre-trial detainment is determined by the danger an individual poses to the community instead of by their ability to pay their way out of jail."
Following news of the Supreme Court's ruling, anti-cash bail organizers, activists and progressive officials in Illinois took a victory lap for what Cook County State's Attorney Kimberly Foxx called being "on the right side of history."
"Illinois becoming the first state in the nation to ensure that money is not the determinant of one's risk to community, is [an accomplishment] of which we should be proud," Foxx said at a Tuesday press conference hosted by the anti-cash bail group Illinois Network for Pretrial Justice.
The INPJ along with the Illinois ACLU and other activist groups have argued for years that cash bail violates the principle of the presumption of innocence, and criminalizes the poverty of low-income people, disproportionately people of color. Those who spoke at Tuesday's press conference said abolishing the practice would prevent poor people from languishing in jail simply because they lacked bail money, while also ensuring wealthy offenders couldn't unfairly sidestep pretrial detention considerations.
"This is about safety over wealth," Democratic state Senator Robert Peters said. "This is about community over isolation, this is about hope over fear."
Other officials and activists at the press conference said the state Supreme Court decision was a step toward dismantling systemic racism in Illinois courts.
"For too long we've had two systems of justice, one for those who are able to post cash bail, and those who are not. We can no longer and will not after today's ruling have those two systems," Lake County State's Attorney Eric Rinehart said. "Because that system has disproportionately affected people of color."
Abolition of cash bail in the state will take effect on Sept. 18. Sharlyn Grace, senior policy adviser for the Cook County Public Defender's Office, said Tuesday that those jailed under unaffordable cash bails between now and then will be able to petition state courts for a review of their cases, pending the effective abolition date.
Chicago-area Democrats in both of the state's chambers passed the SAFE-T Act and its abolition of cash bail in 2021, pressured by years of organizing as well as the nationwide civil unrest in 2020 over police violence and the systemic inequities of the U.S. legal system. But Republicans, law enforcement and more conservative legal officials from further south and west in Illinois, including in the largely suburban Kankakee County due south of Chicago, opposed the act.
In September 2022, Kankakee County State's Attorney James Rowe and County Sheriff Michael Downey sued Pritzker and Illinois Attorney General Kwame Raoul in an attempt to block the SAFE-T Act from taking effect in January 2023. They, along with numerous other Illinois state's attorneys who joined the suit, asked the Kankakee County court to bar the act on the grounds that it would infringe on crime victims' rights and violate the state government's separation of powers.
Kankakee County Judge Thomas Cunnington agreed, ruling in December 2022 that the Legislature overstepped its bounds in voting to eliminate cash bail. He argued that such an abolition infringed on state courts' authority, and that the SAFE-T Act improperly amended bail laws in the state Constitution by not putting the question directly before voters in a general election referendum.
“The court finds that had the Legislature wanted to change the provisions in the Constitution regarding eliminating monetary bail as a surety, they should have submitted the question on the ballot to the electorate at a general election and otherwise complied with the requirements of [the state constitution]," Cunnington wrote in his opinion.
Raoul's office appealed Cunnington's ruling directly to the state Supreme Court two days later, with five of the seven justices sympathizing with pro-abolition advocates. The high court's 17-page majority decision on Tuesday claimed Cunnington's arguments ignored Illinois history and the power the Legislature has typically exerted over the bail system.
Chief Justice Mary Jane Theis wrote in the opinion that "the Legislature has long regulated the bail system."
"In 1963, the General Assembly codified, for the first time, criminal procedure in Illinois. The code included detailed standards and procedures for Illinois courts to utilize in determining how and when a criminal defendant can be detained or should be released from custody prior to trial," Theis wrote. "In the nearly six decades between then and the passage of the act in 2021, the Legislature has revised [pretrial release law] more than 20 times."
Theis also rejected Cunnington's arguments that barring judges from using cash bail infringed on crime victims' rights, noting that the SAFE-T Act still allows judges to hold defendants in pretrial detention or place them under electronic supervision if they are considered a flight risk or a danger to the public.
"The Illinois Constitution does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public," Theis wrote "Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims."
In his 22-page dissenting opinion, Justice David Overstreet agreed that ending cash bail "may promote the public-policy goal of greater fairness in the pretrial release process," but still objected to the abolition of cash bail on the grounds that it was not decided by Illinois voters via a general election referendum.
"Here, in Illinois, to abolish monetary bail and the corresponding judicial determination of the 'amount of bail,' the Legislature must, likewise, first ask the citizens of this state to reconsider the constitutional mandate that the safety of crime victims and their families be considered in setting the amount of bail," Overstreet wrote. "The Legislature has not done so, but this is constitutionally required no matter how desirable it may be to abolish monetary bail."
Rowe, in his own statement, said he was disappointed in the Supreme Court's decision but agreed to abide by its ruling.
"While this ruling is disappointing and the act terribly detrimental to public safety, we must abide by the decision and will continue to do our best to serve the people of Kankakee County," Rowe said.
Sheriff Downey's office did not respond to a request for comment.
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