Illinois Supreme Court Allows State to End Monetary Bail

A key part of the criminal process is bail. This can allow someone who has been charged with a crime to get out of jail until their trial. Bail traditionally has involved depositing a certain amount of money ordered by the court. It provides a guarantee that the defendant will comply with any conditions on their release and return to court for their trial. When a court considers whether bail should be allowed and how much it should be, it usually weighs factors like the severity of the crime, how much flight risk the defendant poses, and how likely they are to commit further crimes. If the defendant cannot post the court-ordered amount, they will stay in jail until trial.

A monetary bail system gives an advantage to wealthier defendants. Poorer defendants may struggle to get the money that they need to get out of jail before trial. Social justice activists thus have criticized the monetary bail system for a long time. In response, Illinois recently became the first state to abolish monetary bail. It replaced the system with a default rule that anyone charged with a crime will be eligible for pre-trial release on personal recognizance. (This means that the defendant formally agrees to return for trial and comply with any court-ordered conditions on their release, such as electronic monitoring.)

However, the new law still allows an Illinois court to order pre-trial detention in certain situations. These generally involve a situation when a defendant poses a threat to the safety of others, or a situation in which the defendant is likely to flee before trial. The prosecution has the burden of showing that the defendant should stay in detention until trial.

Various law enforcement officials argued that this law violated the Illinois Constitution. The case reached the Illinois Supreme Court, which recently rejected their claims. These were based on three constitutional provisions:  the bail clause, the crime victims’ rights clause, and the separation of powers clause. The Court addressed each argument in turn.

First, it found that the bail clause does not require monetary bail. Its text does not specifically refer to “monetary” bail, and the phrase “sufficient sureties” does not necessarily imply monetary “sureties.” Next, the Court pointed out that the new law accounts for the safety of crime victims by requiring a court to consider any threat posed to anyone by the defendant’s release. A court also must give notice to crime victims before holding a pre-trial release hearing. While the crime victims’ rights clause refers to an “amount of bail,” the Court felt that this did not necessarily indicate a quantity of money but simply a “quantity of sufficient sureties.” Finally, the Court found that the new law did not violate the separation of powers by allowing the legislature to exercise judicial power. It pointed out that the legislature has historically regulated the bail system, as well as other areas of criminal procedure like mandatory sentences.

Since all three claims failed, the Court allowed the law to take effect. The monetary bail system will end on September 18. Other states likely will monitor the law and its impact as they consider similar measures.

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