In separate decisions on the same day, the Supreme Court of Illinois and the Superior Court of Los Angeles County reformed their jurisdictions’ cash bail systems on July 18, 2023.

Illinois became the first state in the nation to eliminate cash bail with passage of the SAFE-T Act of 2021, as PLN reported. [See: PLN, Aug. 2021, p.20.] But Kankakee County State’s Attorney James R. Rowe led a challenge to the bail-eliminating provisions in that law. When the county circuit court agreed that it violated provisions of the state constitution and voided the law, state Attorney General Kwame Raoul appealed.

Writing for a 5-2 majority of the state Supreme Court, Chief Justice Mary Jane Theis reversed the lower court, finding that the state constitution “does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public.” As Theis noted, “legislative latitude in regulating pretrial release was a fundamental underpinning of the clause [Ill. Const. art. I, § 9] and its efforts in bail reform were consistent with the drafters’ intent.” Nor did the law violate the victims’ rights clause, Ill. Const. art. I, § 8.1, because a victim’s safety must be considered under the new law “at every stage in which the court determined whether a defendant should be released.”

Justice Mary K. O’Brien concurred that the law passed constitutional muster, but she objected that defendant state officials had not substantiated their claim that plaintiff district attorneys lacked standing to challenge it. In a dissent joined by Justice Lisa Holder White, Justice David K. Overstreet also found the standing argument unpersuasive, but he would toss the law, too, for violating a provision in the Crime Victims Bill of Rights passed by Illinois voters in 2014 that gives victims the right “to have their safety, and the safety of their family, considered in denying or fixing the amount of bail.”

However, Theis noted that the constitution does not limit “bail” to money bail. Further, it was error for the trial court to assume that eliminating cash bail necessarily undermines the state’s interest in having defendants appear for trial—again because the state has other options for that. Thirdly, in an argument tailor-made for the “originalists” in the majority on the Supreme Court of the U.S., Theis noted that the new provisions made no change at all to the language of the state constitution’s bail clause that was first drafted in 1818—when money bail was all but unheard of and defendants routinely gave courts other “surety” for their appearance. See: Rowe v. Raoul, 2023 IL 129248.

L.A. County Doesn’t Go As Far

The Los Angeles County Superior Court adopted a new policy that went into effect on October 1, 2023, becoming the largest county in the U.S. to end cash bail for those arrested on suspicion of misdemeanors and non-violent felonies. The policy allows judges to release defendants without bail based on an evaluation of their risk to the community and the probability they will show up for arraignment; there, courts are already prohibited from requiring bail for those who cannot afford it by a 2021 state supreme court ruling. See: In re Humphrey, 11 Cal. 5th 135 (2021).

“A person’s ability to pay a large sum of money should not be the determining factor in deciding whether that person, who is presumed innocent, stays in jail before trial or is released,” said L.A. County Judge Samantha Jessner.

The county court’s new protocol exceeds a May 2023 injunction that struck down cash bail for poor defendants arrested by Los Angeles Police Department officers or deputies with the county Sheriff’s Department (LASD), calling the practice “a clear, pervasive, and serious constitutional violation.” See: Urquidi v. Los Angeles, Cal. Super. (Cty. of Los Angeles), Case No. 22STCP04044. Extending that protection to those arrested by any of several other agencies operating in the county—including federal agents—the provision still doesn’t entirely eliminate cash bail. It doesn’t apply when a defendant is charged with a violent felony, including domestic violence, child abuse or vandalism. It also exempts defendants already released without bail who are then arrested again. Moreover, judges may continue to order “no-bail holds” for arrestees.

California had the chance to beat Illinois in the race to be the first state to jettison money bail when its legislature passed SB 10 in 2018. But the cash bail industry responded with a massive public relations assault to put the issue before voters, who then rejected Proposition 25 in 2020. Meanwhile in Illinois, Chicago’s Cook County Jail reported that eliminating cash bail had dropped its average daily population below 5,000 for first time since COVID-19 lockdowns slowed the influx of new arrestees in early 2020. The jail held 4,980 detainees as of September 18, 2023, Sheriff Tom Dart said.  

Additional sources: KTLA, Los Angeles Times, WBEZ

[Note: Both the Washington State Constitution and Washington State Criminal Court Rules prohibit “cash-only” bail in the State of Washington. See: State v. Barton, 181 Wn.2d 148, 167-68, 331 P.3d 50 (2014); City of Yakima v. Mollett, 115 Wn. App. 604, 611, 63 P.3d 177 (2003).]

Subscribe today

Already a subscriber? Login

Related legal case