For Judges and Courts, the Right to Seek Cash Bail Ends 

Today, Monday, September 18, is the first day in which Illinois courts will no longer be empowered to hold a hearing and demand that criminal defendants post cash bail as a condition of pretrial release.  Based upon the principle that persons are “innocent until proven guilty,” Illinois law has always granted criminal defendants a recourse under which they can pledge good behavior and live in freedom (albeit under pretrial supervision) until their criminal trial, which may be many months away.  This pledge has often been cash, submitted under the supervision of the court.

A controversial law, enacted by Democrats in January 2021 within a lame-duck midnight session of the 101st General Assembly, told the courts they may no longer hold cash bail bond hearings and order a defendant to post cash bail.  House Republicans voted “no” against the new law.  Many law enforcement officers protested against this law, and its constitutionality was litigated up to the level of the Illinois Supreme Court.  The state’s highest court found in favor of the new law in July.  This Supreme Court decision, and the underlying partisan statute, will bind the criminal courts of Illinois thereafter.

The new Illinois Pretrial Fairness Act purports to give the courts an alternative pathway to impose pretrial detention on some criminal defendants.  However, the new Act is seen, in the eyes of those who sponsored it and voted for it, as a push for what is called “social justice.”  This means that the pathway to Illinois legal pretrial detention, for courts and law enforcement professionals, will be a narrow one.  The prosecution seeking legal pretrial detention of a dangerous defendant will have to take on the burden of submitting a series of findings of fact to the court, and only a widespread array of patterned facts will justify the court imposing pretrial detention on any individual defendant.  In contrast to this burdensome course of action, most Illinois criminal defendants will have a wide range of opportunities to make pledges and promises to the court that, for the purpose of pretrial status, will constitute pretrial bail.