Following a highly contentious election cycle last year in which Republicans used the Pretrial Fairness Act to decry Democrats as being “soft on crime,” a series of legal challenges from state’s attorneys and sheriffs delayed the law’s implementation while the Illinois Supreme Court weighed its constitutionality. In a partisan 5-2 decision in July, the court’s majority agreed that lawmaker-driven bail reform is constitutional, setting up a Sept. 18 statewide rollout for the law to take effect.

Beginning Monday, state courts in Illinois are prohibited from jailing individuals who are accused of crimes yet not able afford bail while they await trial.

The Illinois cash bond system is abolished in favor of a more equitable system that give judges authority to detain defendants accused of committing violent crimes based on their level of risk to society or of willful flight from prosecution rather than wealth-based incarceration.

The new measures require hearings when someone’s guilt by accusation is tied to their freedom, while seeking to avoid pretrial incarceration if the accused person’s offense is nonviolent and they are not deemed a threat to public safety or a flight risk.

The reform was driven by the Illinois Legislative Black Caucus in January 2021 in the wake of George Floyd’s murder in Minneapolis as an effort to address systemic racism in the criminal justice system. It was part of the broader SAFE-T Act criminal justice reform – short for Safety, Accountability, Fairness and Equity-Today.

State Sen. Robert Peters, D-Chicago, whose negotiations on the proposed law made him a national and controversial figure said at the time he knows the public debate over bail reform will continue, but the legal battle is over and Illinois will move forward.

“Let me be clear: Cash bail delegitimizes criminal justice systems and transforms them into systems that violate public safety instead of upholding it,” Peters said in a news release. “Illinois will not go back. We will only move forward with our goal of ensuring public safety for all Illinoisans, regardless of their background or financial position.”

House Speaker Emanuel “Chris” Welch believes the new law is a win for democracy. “The Supreme Court upheld the legislature’s promise to create a more equitable and fair criminal justice system — a system that can now better protect victims and will no longer allow violent offenders to buy their way out of jail,”

Welch added, “This decision is a win for the people of this state, but also for our democracy. As duly elected representatives, we have the privilege and responsibility of creating policy that reflects our values as Illinoisans. Our state’s highest court rightfully ruled that frivolous lawsuits cannot and will not stop the legislative process.”

Senate President Don Harmon (D-Oak Park) said the ruling closes an arduous and unjust chapter. “The court’s decision culminates a long and challenging journey toward fundamental fairness in our legal system that would ensure the accused stay behind bars because they are dangerous, not because they lack dollars in their pockets,” . “The unjust foundations of our society were not built quickly, and they will not be dismantled with ease. But we have taken a great step forward today, and I look forward to the road ahead.  With the state’s high court having found the SAFE-T Act constitutional, I look forward to this landmark law being implemented fully and fairly throughout the state of Illinois.”

An analysis of U.S. Department of Justice data by researchers at the Loyola University of Chicago Center for Criminal Justice, published by Capital New Illinois, show that in 2019, half of jail detainees in Illinois were Black compared to 15 percent of the state population; 33 percent were white compared to 76 percent of the population; and 14 percent were Hispanic compared to 18 percent of the population.

Of those jailed, 89 percent were being held pretrial.

What happens next?

Anyone currently jailed under a cash bail order, as of September 18, will get a release hearing under the new law, and Illinois becomes the first state to implement a pretrial system that will never demand payment for release.

Under the law, officers retain the discretion to arrest any individual they believe to be a threat to the public safety.  One major change, however, is that it directs – but does not require – officers to cite and release the individual if they are accused of a crime below a Class A misdemeanor, with a court hearing date to be scheduled within 21 days.

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