By Attorney Angie Reed

In January 2023, the Safety, Accountability, Fairness and Equity-Today (or SAFE-T) Act took effect in Illinois, with one notable exception. Perhaps most newsworthy of the SAFE-T Act was the prong regarding pre-trial detention of people charged with criminal offenses, frequently referred to as the “no cash bail” provision. That provision was challenged on constitutional grounds and stayed (i.e. stopped from going into effect) by the Illinois Supreme Court in late December 2022, pending a decision from the state's highest court. On July 18, 2023, the Illinois Supreme Court issued their decision, ruling that the “no cash bail” provision is constitutional. 60 days from the July ruling, on September 18, 2023, this provision will go into effect in Illinois.

Currently in Illinois (and most other states), someone who is arrested will usually end up in front of a judge to have a bail amount set. Bail is supposed to function as a safeguard that ensures a criminal defendant will continually show up to their court dates – if someone doesn't come to court, they forfeit the bail. Coming to court and resolving the case will result in the bail money being returned to the defendant (or whomever paid the bail amount) at the end of the case. In Illinois, someone arrested and given bail has to pay 10% of that bail amount in order to go home instead of remaining in custody until their trial or resolution of the case. For example, if a judge sets a $5,000 bail, a defendant would have to pay $500 in order to get out of jail while awaiting trial. Higher bail amounts are often given to more serious charges, and judges have the discretion to deny bail to defendants.

The consequence of cash bail, however, means that two people charged with the same crime might have the same bail amount, but if the second person is wealthier, they would be able to afford to go home until their trial. The SAFE-T Act addresses this disparity by eliminating money as a factor when determining whether someone needs to remain in custody for the duration of their case.

Although money will no longer be a determining factor when deciding bail, judges still have the authority to (a) deny bail altogether for serious charges, and (b) continue to impose collateral conditions of bail such as electronic monitoring, GPS monitoring, and pre-trial services monitoring. Prosecutors can ask a judge to no-bail a defendant, based solely on a public safety concern, for firearms offenses, forcible felonies, and domestic battery. Prosecutors can also ask a judge to deny bail to a defendant charged with any crime if they are a repeat offender or if the state believes the defendant to be a flight risk.

This provision of the SAFE-T Act does not change the ability for a judge to deny bail to someone charged with a serious offense, and does not change judicial discretion when imposing pre-trial monitoring conditions. For many defendants charged with misdemeanors or non-violent crimes, it means their financial status will not determine whether they will remain in custody for the duration of their case. A defendant who is released on bail still has the responsibility to show up to their court dates, and will be issued a warrant if they do not come to court or if they otherwise disobey pre-trial conditions. It is important that someone charged with a crime contact an attorney immediately to explain any potential pre-trial conditions and ensure that they are in compliance with the court.