The constitutional argument over eliminating cash bail in Illinois

SPRINGFIELD (WGEM) - Illinois was set to be in a new era for criminal justice with the elimination of cash bail on New Year’s Day. However, a Republican judge in Kankakee County ruled the law abolishing cash bail was unconstitutional. The Illinois Supreme Court then ordered a stay on the implementation of the Pretrial Fairness Act.

Chaos was the word of the weekend as many county leaders across the state were confused about what they should do. The Illinois Supreme Court quickly stepped in and justices will now decide whether the Pretrial Fairness Act is constitutional.

Rep. Patrick Windhorst (R-Metropolis) and other Republican lawmakers warned sponsors during the fall veto session that the General Assembly should let the courts rule on the SAFE-T Act provision eliminating cash bail before implementing the law. The former Massac County State’s Attorney said bail is a middle ground to strike a balance between a defendant’s right to potential release before trial and a requirement to assure presence for trial and protect the public.

“The ability for a court to set monetary bail is inherent in the judicial power of the court and is provided by the state constitution,” Windhorst said.

But it truly depends on who you ask. The Illinois Constitution states that people must be bailable by sufficient sureties. Yet, it never defines bail as money.

“Bailable has always meant releasable, so money is just one condition you can put on someone’s release,” said Sarah Staudt, the policy director for Chicago Appleseed Center for Fair Courts. “And similarly, sufficient sureties just means sufficient assurance that someone will come back to court and not commit another crime.”

Staudt is a member of the Illinois Network for Pretrial Justice. While advocates are disappointed that the Pretrial Fairness Act did not take effect on Jan. 1, they are thankful that the Illinois Supreme Court will act swiftly to review the case.

Still, Republican lawmakers argue that cash bail cannot be eliminated without bringing the question to Illinois voters.

“In order for that inherent power of the court to be amended or taken away, it must come through the proper process which is amending the constitution rather than legislation,” Windhorst said.

Advocates argue that a constitutional amendment isn’t necessary as they believe that state lawmakers had the power to pass this plan. Staudt said people had two years to raise any concerns that they had with the law. She said this was a strategically-timely lawsuit to shake up the implementation process just before the deadline.

“Every day that we keep the money bail system in place, we’re keeping an unjust system in place that’s keeping people in custody solely because they don’t have the money to pay their way out,” Staudt stressed.

Attorney General Kwame Raoul stated Saturday that the order issued by the Supreme Court is not a decision on the merits of the constitutionality of the SAFE-T Act and that he appreciated the court’s interest in expediting the appeal.

“We look forward to mounting a robust defense of the constitutionality of the law and ensuring that it goes into effect across the state,” Raoul said.

The Illinois Supreme Court could take several weeks or a few months to reach a final decision on the Pretrial Fairness Act.

Copyright 2022 WGEM. All rights reserved.