David Moon Mingus
The Battle Over Cash Bail in Illinois: What You Need to Know About the Supreme Court Case
On March 14, 2023, the Illinois Supreme Court heard oral arguments in a lawsuit challenging the constitutionality of the Pretrial Fairness Act (PFA), a landmark law that would end cash bail and reform pretrial justice in Illinois. The PFA was passed by the legislature in January 2021 as part of the SAFE-T Act, a comprehensive criminal justice reform package. The PFA was supposed to go into effect on January 1, 2023, but it was temporarily blocked by a lower court ruling in December 2022.
The lawsuit was filed by more than 60 state's attorneys and sheriffs who oppose the PFA and claim that it violates several provisions of the Illinois Constitution, such as the single-subject rule, the three readings clause, the separation of powers clause, and the victim rights act. They also argue that cash bail is a constitutional right and that abolishing it would endanger public safety and increase crime.
The state's appeal was defended by Deputy Solicitor General Alex Hemmer, who argued that the PFA is constitutional and consistent with the legislative intent to protect public safety and ensure fairness for all people accused of crimes. Hemmer said that cash bail is not a constitutional right but a method of release that can be changed by statute. He also said that cash bail is ineffective and discriminatory because it allows wealthy people to buy their freedom while poor people languish in jail pretrial.
The PFA was written by advocates and organizers in the Coalition to End Money Bond and the Illinois Network for Pretrial Justice , who have been campaigning for years to end money bond and transform pretrial justice in Illinois. The PFA would require judges to release most people accused of crimes without imposing any financial conditions unless they pose a specific threat to public safety or risk of flight. The PFA would also provide due process protections for people who are detained pretrial, such as speedy hearings, counsel at first appearance, periodic reviews, and data collection.
The Coalition to End Money Bond issued a statement after the oral arguments expressing confidence that "the Supreme Court will uphold this historic law". The coalition said that ending cash bail is "a matter of racial justice" because "Black people are disproportionately impacted by money bond". The coalition also said that ending cash bail is "a matter of public health" because "thousands of people are currently incarcerated pretrial during an ongoing pandemic".
The Illinois Supreme Court did not indicate when it will issue its ruling on the case. If upheld, the PFA would make Illinois "the first state in history to eliminate wealth-based incarceration before trial".