CHICAGO — The Illinois criminal justice system is set for a major makeover beginning Sunday, replacing a cash-bail structure with one that requires judges to more carefully weigh who among the accused should be held in custody before trial without using money as a factor.
But for how long the new method will remain in place is unclear, growing murky after a Kankakee County judge this week ruled the elimination of cash bail and other pretrial reforms passed by the Illinois General Assembly and signed into law by Gov. J.B. Pritzker were unconstitutional.
Judge Thomas Cunnington sided with state’s attorneys from more than 60 counties — mostly downstate — who oppose the reforms in the SAFE-T Act and made several allegations in a lawsuit, including that the state legislature violated the separation-of-powers clause in the Illinois Constitution by interfering with the judiciary’s ability to set bail.
As Attorney General Kwame Raoul has vowed to appeal the ruling to the Illinois Supreme Court, it remains to be seen whether the high court will step in to put the pretrial provisions on hold.
If the court makes no decision to pause matters by Sunday, counties that were part of the lawsuit could remain under the traditional cash-bail system, while others that weren’t part of the litigation — including Cook, DuPage and Lake — could move to the new pretrial-detention process.
Officials with the Cook County state’s attorney’s office and the Cook County public defender’s office have said the county intends to proceed as planned with the new procedures on New Year’s Day.
Raoul’s office released a statement this week saying criminal defendants in all counties are not subject to Cunnington’s ruling. They can still argue on Jan. 1 for release under the guidelines set forth in the SAFE-T Act.
“There may be some confusion in the interim,” said Jonathan Manes, an attorney with Northwestern University’s MacArthur Justice Center. “It’s important to get clarity soon from the Illinois Supreme Court.”
Either way, the new system will be uncharted territory for judges, prosecutors and defense lawyers who’ve routinely soldiered through an archaic bail process that court reform advocates for years have fought against and claimed was unfair.
The elimination of cash bail was among sweeping criminal justice reforms that comprised the SAFE-T Act, a 764-page law that was meant to promote police accountability and create a more equitable court system. While the law as a whole divided pro-law enforcement groups and progressives who’ve made strong pushes for change, the no-cash bail policy has been arguably the most controversial provision.
The no-cash bail policy was used by Republicans and other opponents in this past election to paint Pritzker and his Democratic allies as weak on crime. Proponents have argued that the policy is necessary because too many defendants locked up awaiting trial were too poor to afford bail — and they point out that defendants with money can get out of jail anyway — while detractors believe the policy will allow too many dangerous criminals back on the streets.
Attorneys and judges preparing
Prior to Cunnington’s ruling, judges, prosecutors, defense lawyers, court clerks, court watchdogs and deputy sheriffs all have made their own preparations for implementing what could be a historic transition in Illinois.
Under the new system, defendants will appear for two hearings: an initial hearing, also known as a conditions hearing, and a detention hearing, designed to provide a more comprehensive look at whether someone should be released or detained pretrial, officials said.
“I actually can’t overstate just how much of a new era this is for pretrial practices,” said Insha Rahman, a bail reform expert who is vice president of advocacy and partnerships at the Vera Institute, an organization that supports programs meant to end mass incarceration. “Even in New Jersey where money bail has partially been eliminated, it still gets used in dozens of cases and is technically still on the books, so what Illinois did is really truly on another level.”
Judges generally spend just a few minutes hearing each case in bond court, where prosecutors detail a defendant’s criminal background and some of the allegations against them. Defense lawyers counter with mitigating factors, such as whether the accused is married with children, employed or in school.
A detention hearing in the revamped system could take up more time. And prosecutors seeking to detain defendants likely will be tasked with providing more evidence than they do for current bond hearings.
In an interview with the Tribune, DuPage County State’s Attorney Robert Berlin explained how a prosecutor, for instance, now might disclose at a bond hearing that they obtained a search warrant for a defendant’s phone and found texts between the victim and defendant. But beginning Jan. 1, prosecutors could actually discuss the text messages themselves or otherwise present more detailed information in court, Berlin said.
“It’s not just probable cause to detain where the judge sets a cash bond. Now the issue in these detention hearings is should someone actually be detained pretrial as opposed to released or released with conditions. So there’s a lot more at stake,” said Berlin, a Republican who worked with Democratic lawmakers on the latest changes to the SAFE-T Act earlier this month.
Defendants whom prosecutors are seeking to detain pending trial will appear for detention hearings within 48 hours after their initial hearings — a period during which they could be held in custody.
“We’re going to be doing more work on this case in those 48 hours,” said Lake County’s Democratic state’s attorney, Eric Rinehart. “We’re spending our time on (cases with serious charges), not on every single case but on this smaller subset where we talk to victims more, we will reaffirm statements from witnesses, we will pull more surveillance videos.”
Rinehart said he will be adding prosecutors to his felony review section, which decides whether felony cases are ready to be heard before a judge, to prepare for the new detention hearing system.
In Cook County, the state’s attorney’s office earlier this month circulated a policy to assistant state’s attorneys outlining guidelines for making decisions about when to argue a defendant is a danger and should be detained before trial.
When trying to make a case that a defendant is a flight risk, prosecutors will look at factors including whether the person was arrested outside of Illinois and plans to leave. Prosecutors can use patterns of no-shows in court to argue for detention, according to the law.
Prosecutors seeking detention in gun cases now will also have to make an argument the defendant is a danger to the public that goes beyond simply the fact that they were caught with an illegal gun.
Under the new law, people can only be detained on drug charges in narrow circumstances, and the Cook County policy memo states prosecutors need a supervisor to sign off if they are seeking detention in a drug case.
“In essence we are asking (prosecutors) to be thoughtful in their approaches to these kinds of cases,” Cook County State’s Attorney Kim Foxx, one of the few state’s attorneys in Illinois who has been publicly supportive of the no-cash bail provision, told the Tribune. “No two cases are the same.”
Foxx’s office has been dogged with staffing shortages and retention issues, as the pretrial process is set to undergo its biggest overhaul in decades. The state’s attorney said the office has made recent hires and is actively recruiting. Foxx said she has been assured by Cook County Board President Toni Preckwinkle that funds will be available for the resources they need.
The office made a 2023 budget request for an additional 23 attorneys and 16 staff members to work in pretrial courts in response to the SAFE-T Act.
Cook County judges have been undergoing training and simulations for the new pretrial court process, and a new court schedule has been developed, according to a statement from the office of Chief Judge Tim Evans.
It is not yet clear what the new court schedule will look like. The chief judge’s office has not publicly released any orders.
In DuPage, the County Board in March set aside about $20 million related to changes in court-related infrastructure arising from the SAFE-T Act.
DuPage officials said the courthouse will include a new detention hearing room that has been constructed to allow for more private spaces for defense attorneys to confer with their clients. Staffers working in pretrial services for those charged with crimes will have space to do risk assessment reports on defendants, and deputy sheriffs will likely be moving more defendants in and out of court because under the SAFE-T Act, they’re required to appear in person before a judge more frequently instead of merely through a video feed.
In downstate Morgan County, which is not part of the Kankakee lawsuit, State’s Attorney Gray Noll said he could see needing more help in his office to review more body camera evidence by 2025, as the new law requires all officers to wear them by then.
While the sheer number of serious crimes in Morgan County pales in comparison with the Chicago area, Noll said there’s a chance he could see more people detained for his cases since defendants charged with misdemeanor domestic battery will be eligible for pretrial detention being Jan. 1.
“My office certainly isn’t going to be filing a petition for pretrial detention in every single domestic battery case that we have, but we’ll be filing them on the ones that are appropriate,” said Noll, who was just elected as the new president of the Illinois State’s Attorney’s Association.
DuPage County’s chief public defender, Jeff York, said his office under the new system will be entitled to more information about clients prior to their initial appearances in court. For instance, his lawyers from the get-go will have access to some discovery in the case from prosecutors.
“We have all this stuff that we have to go over with our clients whereas before, we’re kind of going in cold,” said York. “Now we’re going to have the same information, which is great in theory, but it’s just logistically much different.”
York said his office is also hoping it could step in and help clients earlier in the new system than they usually do under the bond court process.
“Let’s say there’s a mental illness issue and we want to have them evaluated. It’s way better to know that on day one than at day 30, when traditionally we would get appointed,” he said. “Let’s say there’s some investigation or it’s time sensitive. If we get appointed earlier, it can have a positive impact on a case in terms of us getting information that may be harder to get later.”
Amy Thompson, deputy of central operations for the Cook County public defender’s office, said attorneys have done simulations of the new pretrial hearings and begun reviewing client files and filing petitions on behalf of people detained in jail who might be eligible for release when the law goes into effect.
She hopes the reform will allow more trials to occur that will truly test evidence from prosecutors and police, reducing the number of cases that resolve with a plea deal while people are jailed.
“How many of your rights do you waive because you need to be home?” Thompson said.
Monitoring the new system
Sarah Staudt, director of policy for Chicago Appleseed Center for Fair Courts, an organization that advocated for the elimination of cash bail, said she expects some notable process changes.
Beginning Jan. 1, she said, court sheets will no longer reflect the bond amounts, and will instead list a defendant’s conditions of release, if they are set free pending trial, and explain the process of a detention hearing for those eligible to be locked up.
Staudt said her organization will play a monitoring role for the new system, training volunteers to watch the new hearings to see for what kinds of cases prosecutors are seeking detention and how judges are ruling in those cases.
Nadia Woods, an attorney with First Defense Legal Aid, said her group has held workshops for people to learn more about the pretrial provisions. The effort is part of a so-called Know Your Rights campaign, which was originally in place to help people learn more about their constitutional rights when being stopped or arrested by police.
She said the workshops are held in schools and hospitals and during community events and that their goal is to combat misinformation about the provisions that have been prominent in the public domain. Woods said her group has created “wallet cards” that look like business cards with several facts about the pretrial provisions.
“They’re all centered around, sort of, the misunderstanding that police officers will no longer have discretion to arrest people, or ... people will no longer face accountability,” Woods said. “The election is now over, but the misinformation has latched on and folks are still so confused and just really don’t have any understanding of what is actually happening with these laws.”
‘Illinois isn’t the only place that has done this’
Bail reform to some degree has been passed in other states, such as New York and New Jersey, offering a glimpse into how it may play out here. New Jersey eliminated cash bail in most cases through legislation that took effect in 2017. In New York, cash bail was eliminated in 2020 for most misdemeanors and nonviolent felonies, while judges can still set bail for people accused of most violent crimes.
A 2019 study by a public policy research organization MRDC found that after New Jersey enacted bail reform in 2017, defendants spent less time in jail in the month following an arrest. The study found that the criminal justice reform had the biggest impact in counties that previously had the highest rates of jail bookings.
An annual report to the New Jersey governor and legislature that evaluated progress under the state’s criminal justice reform act in 2021 looked at recidivism among those freed pending trial.
The report found only a small percentage of those released were charged with serious, violent crimes while back on the street.
“Illinois isn’t the only place that has done this,” Rahman said. “Other places have and it has been just fine.”
Earlier this month, about 22% of people held pretrial in the Cook County Jail were held on money bonds, according to data from the Cook County sheriff’s office. Another 20% were held on a money bond and were ordered on electronic monitoring as a condition of their release. Some of those may be held because they can’t post bond while others may not have had a location to stay while on electronic monitoring.
The data, from Dec. 6, offers a snapshot of the jail population at a given time, so some people included in the data may have been released.
In all, about 4,440 people were held pretrial, excluding people held on warrants issued in other jurisdictions or parole holds, according to the data from Dec. 6.
The majority of those — about 58% — were held on no bond, mostly charged with violent crimes, including more than 1,200 held for murder or attempted murder.
Those seeking release under the new pretrial release provisions must petition the court.
One side effect of the law could be moves to order more defendants to electronic monitoring — a cheaper way than the jail to monitor people within the community who need more supervision, but still a potentially costly and intrusive means of pretrial release, some experts say.
“We know it’s much, much, much cheaper to monitor someone in the community than to detain them 24/7,” said Alexa Van Brunt, director of Northwestern’s MacArthur Justice Center. “I think that also means we can’t then pivot to overusing (electronic monitoring). That also has to be reined in at the same time.”
“Like all major reform, whether it is successful depends on whether it is actually being implemented on the ground,” Van Brunt said.
And the effectiveness of the entire package will be measured at a later date, as the constitutionality question plays itself out. Counties that were part of the lawsuit were gearing up to not enforce the pretrial provisions of the SAFE-T Act, unless ordered otherwise by the Illinois Supreme Court.
McHenry County State’s Attorney Patrick Kenneally said he and the other prosecutors are planning to file a motion with the high court asking it to apply Cunnington’s ruling statewide.
“It’s a fluid situation. I think the whole thing could turn on a dime,” Kenneally said Thursday. “We have no intention, as of right now today talking to you, of applying the law on Jan. 1.”
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