Partisan 5-2 ruling says state’s constitution does not guarantee right to monetary bail
By JERRY NOWICKI
Capitol News Illinois
SPRINGFIELD – A landmark criminal justice reform that eliminates cash bail in Illinois is constitutional, the state’s Supreme Court ruled Tuesday, paving the way for the change to take effect Sept. 18.
The 5-2 decision – handed down on partisan lines – means that an individual’s wealth will no longer play a role in whether they are incarcerated while awaiting trial. Judges can still order someone to be detained as they await trial, but the new system will be based on an offender’s level of risk of reoffending or fleeing prosecution, rather than their ability to afford bail.
The list of offenses for which a judge can revoke pretrial release became a point of controversy in the two years following the law’s 2021 passage until it was amended in late 2022. Ultimately, lawmakers settled on a system that aims to divert lower-level nonviolent offenders from pretrial incarceration while giving judges greater authority to detain individuals they deem dangerous or at risk of fleeing prosecution.
A group of state’s attorneys and sheriffs challenged the law’s constitutionality based on the fact that the Illinois Constitution directly references “bail” in two sections, including one that states, “all persons” accused of crimes “shall be bailable by sufficient sureties.”
“The Illinois Constitution of 1970 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,” the majority wrote in their opinion. “Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims. The Act’s pretrial release provisions set forth procedures commensurate with that balance.”
The high court’s two Republican justices dissented. Justice David Overstreet, of the 5th District in southern Illinois, wrote in his dissent that he believed the General Assembly’s elimination of cash bail was “in direct violation” of the constitution’s bill of rights and another section of the document pertaining to crime victims’ rights.
“Therefore, this court has an absolute obligation to declare the pretrial release provisions of the Act to be invalid and unenforceable no matter how beneficial the abolishment of monetary bail may be,” Overstreet wrote, joined by Justice Lisa Holder White.
The law was scheduled to take effect on Jan. 1 of this year, but on Dec. 31 the justices issued an order postponing its implementation until they had time to rule on the case. Their Tuesday ruling noted that their stay will be lifted in 60 days, on Sept. 18.
This story will be updated.
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of print and broadcast outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.