By Attorney Angie Reed

In January 2023, a new law will take effect in Illinois that will have immediate ramifications for people charged with criminal offenses in the state. Most newsworthy has been the prong of the Act that describes “no cash bail.”

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 believe 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 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.