FILE - Illinois Supreme Court Building

The Illinois Supreme Court Building in downtown Springfield, Illinois. (Alan Scott Walker | Wikimedia via Creative Commons)

Two years ago, the Illinois legislature made a bold, politically-motivated move, voting to eliminate monetary bail, with implementation scheduled to take effect on Jan. 1 of this year. Well, that day finally arrived and the Illinois Supreme Court has wisely stepped in and is poised to announce what many of us already knew – that the lawmakers' actions were unconstitutional.

End cash bail! Intent on reducing the number of people held in jail pending trial, this has been the charge of criminal justice reformers in Illinois and across the nation for more than a decade. During this time, they abandoned their original strategy of using risk assessments to sort people in and out of jail following arrest. As it turned out, the foolproof algorithms they embraced were shown to be racially biased.

Instead, activists proceeded with the idea of banning cash bail as the quickest, easiest way to right a wrong. It was the equivalent of a pencil-and-eraser solution to a significant criminal justice problem: just make it go away. In the end, it was a fool's errand.

It cannot be stated more clearly. The legislature cannot simply overcome the plain meaning of the state constitution and “end cash bail.”

Despite this, Illinois lawmakers embarked on a mission to end money bail several years ago by passing the SAFE-T Act due to alleged unfairness of the bail system to those who are indigent. Gov. J.B. Pritzker, who signed the law over objections of law enforcement and prosecutors, was heavily supportive of that effort. He joined the chorus of criminal justice reformers who were able to convince state officials they should end money bail through a campaign of manipulative, emotional appeals tied to cherry-picked cases.

The effort yielded the expected headlines, which legislators coveted as praises for their righteousness. Caught up in the zealotry, some media outlets erroneously stated that Illinois was the first state to eliminate cash bail.

Ultimately, the legislature was dead-wrong in believing it could repeal the established tradition of monetary bail in Illinois – one that dated back more than 200 years – without a constitutional change.

With the exception of capital cases and those involving a life sentence, as well as very limited felony cases, the law states that all persons in Illinois shall be “bailable by sufficient sureties.” This refers to money or a thing of monetary value, according to language that appears in the state constitution, notwithstanding the questioning of doubters. This was confirmed by noted Yale law professor Daniel J. Freed, who testified before Congress that there was no doubt that “sufficient sureties” means money. In his remarks prior to the elimination of monetary bail in the federal system in 1984, Freed stated that in order to eliminate bail, that language would have to be deleted from the Federal Judiciary Act of 1789.

It is understood that "sufficient sureties clauses," such as used in Illinois, are a guarantee of the constitutional rights of a defendant. These individuals are assured of having the right to a bail amount to be set that is not excessive. They also have the right to have a surety (such as a bail agent) make that guarantee, unless a prosecutor invokes a limited exception and the court denies bail.

In sharp contrast to Illinois stands the federal system of preventative detention, in which there is no right to bail and the U.S. government detains 75 percent of all defendants charged with a crime. Most states, including Illinois, have a detention rate of less than 20 percent.

In its seminal opinion on the rulings of the vast majority of state supreme courts, the state of Washington's Supreme Court stated, “As a matter of plain language, ‘bailable by sufficient sureties’ means a defendant must have the option to utilize a surety in making bail.” Accordingly, while Illinois' SAFE-T Act purports to protect defendants, it actually denies them of their rights in a great number of cases, far beyond what the U.S. Constitution allows.

Looking at it from a different perspective, Illinois has the right to insist on sufficient sureties from defendants. This means it is permitted to require a higher bail amount than a defendant (or their surety) is able to post, provided it is necessary to protect public safety and guarantee their appearance. The law pertaining to this dates back to when Illinois was still a territory. It is fairly basic on this point and is consistent with the rest of the nation. Specifically, when a bail is imposed (and is not “excessive" and deemed “sufficient”) and is not posted, a defendant remains in jail. That is just how it works.

The Illinois legislature does not have the authority to simply circumvent the state constitution and "end cash bail." In modern times, New Jersey is the only other state that has attempted to eliminate bail and move to the federal system of preventative detention. Then-governor Chris Christie set out on this mission in 2014, only to run into nearly identical language pertaining to bail in New Jersey's constitution. Along with legislative legal counsel, Christie quickly realized that Daniel Freed was right – bail by sufficient sureties means the right to money bail. In order to end the cash bail system, the state constitution must be amended. The Illinois legislature surely knew this, but brazenly chose to ignore the foundation of state law.

Gov. Pritzker and state lawmakers seem to have conveniently forgotten one other key detail concerning the elimination of monetary bail: it must be replaced with something else that costs a lot of money. That something else is a system of pretrial supervision and preventative detention that will require due process hearings. New Jersey has spent approximately half a billion dollars over the past six years to get its system operational and to pay for recurring costs – so far.

Fortunately, more than 60 state attorneys challenged the constitutionality of Illinois' SAFE-T Act. The subsequent ruling of a Kankakee County judge has now set the stage for the state Supreme Court to determine the fate of monetary bail, which has operated since the Northwest Ordinance of 1787. The legislature thought it could simply erase the personal surety system like pencil scratches on a page rather than regard it as black-letter constitutional precepts. Despite the fervor for reform, it is highly unlikely that the Illinois Supreme Court will allow the provisions of this ill-conceived law to stand.

Jeffrey J. Clayton is executive director of the American Bail Coalition