In January 2020, the General Assembly passed the Pretrial Fairness Act, historic legislation eliminating Illinois’ unjust and ineffective system of money bail – which ACLU had advocated for several years as a member of the Coalition to End Money Bond and Illinois Network for Pretrial Justice. The Act was set to go into effect on January 1, 2023, but at the eleventh hour, several groups of prosecutors and sheriffs filed lawsuits challenging its constitutionality on numerous grounds. The Circuit Court in Kankakee (where the lawsuits were consolidated) granted summary judgment to the plaintiffs in December 2022, holding that (1) the Pretrial Fairness Act violates the Crime Victims’ Rights Amendment of the Illinois Constitution because it prevents judges from using money bond to keep victims safe; and (2) the Pretrial Fairness Act violates the Separation of Powers Clause because it prevents courts from exercising their authority to set bail. The Illinois Supreme Court granted a direct, expedited appeal by the Illinois Attorney General’s Office.
On behalf of the Illinois Network for Pretrial Justice and 389 other amici – including community organizations, supporters of victims of domestic/gender-based violence, faith leaders, violence prevention organizations, elected officials and agencies, and others – we filed a brief urging the Illinois Supreme Court to allow the Pretrial Fairness Act to take effect. Our brief presented substantial social science research, as well as evidence from community members’ lived experiences, establishing that a system of pretrial release that hinges on a person’s wealth, rather than a person’s assessed level of risk, is ineffective and that the Circuit Court relied on incorrect presumptions in its ruling that Pretrial Fairness Act’s changes to monetary bail violate the Illinois Constitution.
First, we provided data that jurisdictions (including Cook County) where use of money bond has decreased have not experienced resulting increases in the rates of failures to appear in court or rearrest for people on pretrial release. On the contrary, evidence establishes that steep money bonds likely make the community less safe by destabilizing the lives of people who are detained for inability to pay bail and who consequently often lose their jobs, housing, family and social ties, and health care. As a result, people who have been detained while awaiting trial are more likely to turn to unlawful acts after they are released. The harms of these criminal actions are most likely to fall on the very same communities already harmed by unaffordable money bonds: people who are poor, Black and brown. Therefore, the Circuit Court’s finding that money bonds are necessary to protect victims was factually incorrect; money bail does not promote safety for specific victims or the general public.
Second, we provided evidence that a money bond system is not necessary to ensure that people return for their court dates. When court systems in Cook County and outside Illinois have decreased reliance on monetary bonds, reappearance rates have remained consistent. In fact, evidence shows that the best way to get people to attend their court dates is to send them reminders. We argued that the Pretrial Fairness Act’s restrictions on the judiciary’s ability to impose a unnecessary and ineffective pretrial condition – payment of a money bond – cannot unduly infringe on Illinois judges’ authority
The Illinois Supreme Court heard arguments in March 2023.
In July 2023, the Illinois Supreme Court upheld the constitutionality of the Pretrial Fairness Act’s elimination of money bond and rejected the arguments raised by the prosecutors and sheriffs. The court ordered that the new pretrial release provisions of the Pretrial Fairness Act shall be implemented starting on September 18, 2023.
