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What to know about the end of the cash bail system that goes into effect on Sept. 18

State Journal Register

Tuesday, September 12, 2023  |  Article  |  Patrick Keck

On Sept. 18, Illinois will become the first in the nation to end the use of cash bail as a condition of pretrial release - a move proponents say will keep the poor from unfairly languishing behind bars while others with means bond out.

The reform is a result of a yearslong and broader criminal justice package, the Safety, Accountability, Fairness and Equity Today Act more commonly known as the SAFE-T Act, passed by the Illinois General Assembly and signed into law by Gov. JB Pritzker in 2021. The Illinois Supreme Court determined the pretrial release portion of the law, the Pretrial Fairness Act, constitutional in July.The state's highest court ruled that the Illinois Constitution of 1970 does not establish monetary means as the sole way to ensure a criminal defendant appears for trial. The 5-2 decision overturned a previous ruling from a Kankakee County judge that effectively pushed back the original start date - Jan. 1, 2023 - to end cash bail.

Sangamon County was among the counties that challenged the constitutionality of the cashless bail system. However, State's Attorney Dan Wright said in a statement the county will be "prepared to fully implement the law."

Here's more to know about the end of cash bail.

How will judges decide who will be detained pretrial?

While cash bail will no longer be the determining factor in whether or not an individual is to be held in jail before trial, judges still have means of doing so.

Through the PFA, judges can still detain those considered to be a threat to the public or seen as likely to flee before trial. They can also order electronic monitoring of those who receive pretrial release.

Republicans, who were opposed to the legislation, said too many offenses were considered non-detainable by PFA throughout the 2022 political campaign. Among them, some had claimed judges could not detain individuals charged with forcible felonies such as second-degree murder and arson.

During the 2022 lame-duck session, an amendment to the legislation clarified that forcible felonies and non-probational offenses would be subject to the dangerousness standard. Other offenses such as hate crimes, felony animal torture, aggravated DUI causing bodily harm, DUI while operating a school bus and other DUI charges as detainable offenses if the defendant is deemed dangerous were also added.

Can people jailed under the old system move to cashless bail?

Proponents of ending cash bail have said the system unfairly targets the impoverished by requiring them to stay in jail, while wealthier defendants can avoid jail time by posting bail.

Pritzker has said the system will "ensure pre-trial detainment is determined by the danger an individual poses to the community instead of by their ability to pay their way out of jail."

Under the new law, the PFA allows for a defendant in jail before Sept. 18 to petition to have their case moved to the cashless system.

Have other states attempted to end cash bail?

Illinois is joined by states such as Alaska, New Jersey and New York that have made moves to change the cash bail system. It is, however, the only state to eliminate it in its entirety.

New Jersey replaced its cash bail system in 2014 with a risk assessment approach - measuring a defendant's chance of being a threat if released before trial. Unlike Illinois, New Jersey still allows cash bail if there is a credible chance that a defendant will not show up in court.