Law enforcement and legislative officials throughout Illinois will have their attention on the Illinois Supreme Court this week as more insight into the state’s key piece of justice reform, the SAFE-T Act, is expected March 14. If allowed, Illinois may become the first state in the nation to completely abolish cash bail.

The case of Rowe v. Raoul consolidates 64 parties under the name of one plaintiff, James R. Rowe, a Kankakee County State’s Attorney. Most of these 64 plaintiff parties are composed of a state attorney and a sheriff from each county. The other 38 counties of Illinois, such as Cook and DuPage County, were not affected by this case.  

The case started in a trial court of Kankakee County where it was ruled that the no cash bail provision of the act was unconstitutional and that Illinois voters should have been able to vote on the matter before it was passed.  This judgment was entered on Dec. 28, and it was appealed by the defendants named under Illinois Attorney General Kwame Raoul, including Gov. J.B. Pritzker and the two leaders of the Illinois General Assembly. They drafted the bill and supported its passage through both the Illinois Senate and House of Representatives as the SAFE-T Act in 2021.

While some parts of the SAFE-T Act are already implemented through Illinois, the fate of the bail provision is on hold until the Illinois Supreme Court hears the appeal and makes a final decision on the matter. It will be a key win for many Illinois lawmakers and workers of the justice system who have pushed for the SAFE-T Act for the past two years.

The main purpose of bail is to ensure the defendant returns to court for their trial and doesn’t commit more crimes in the intermediate time. After a suspect is arrested, they have a constitutional right to be released on bail depending on a judge’s discretion.

The most common type is cash bail, where the defendant pays the full sum in cash. This is usually too expensive, so there are also reduced payment bonds that can be paid by a bond agency and recognizance bonds where the defendant simply signs a sworn statement to attend court dates and abide by pretrial release conditions. 

The American Civil Liberties Union (ACLU) details the reasons legislators and activists oppose cash bail. It leads to a wealth disparity and over inflates the population of people in jail before they have been convicted as guilty.

“The Pretrial Fairness Act aims to restore the presumption of innocence and reduce hardship visited upon hundreds of people who are held in jail awaiting trial simply because they are unable to afford the monetary bond for their release,” says a statement by the Illinois ACLU. “The Pretrial Fairness Act will allow these individuals to continue to work, care for their family and contribute to society while awaiting trial.”

At a College of DuPage presentation for Paralegal Studies students, Kristine Condon, a former deputy clerk of the Illinois Supreme Court, explained how Rowe v. Raoul moved from the Kankakee County circuit courts to the Illinois Supreme Court. She summarized the main arguments of the plaintiffs in Rowe who oppose the eradication of cash bail. 

“The subject of current litigation that’s before the Supreme Court deals with the Pretrial Fairness Act,” Condon explained. “The constitutional requirement of bail is meant to help with safety and the defendant’s compliance with terms of release. It ensures the defendant would show up to court for the trial and not pose a threat to the public or a witness.”

By having legislation that gets rid of cash bail, Rowe argues that the legislative branch is overriding the bail-setting powers of the judicial branch, which leads to separation of powers concerns. Rowe also argues that since the right to bail is enumerated in the constitution, abolishing cash bail is unconstitutional.

In defense, the Raoul appellant’s brief described how the Illinois Constitution established the right to bail but didn’t specify that only cash bail should be used. Proponents of the SAFE-T Act hope to end the use of cash bail because of concerns about economic fairness.

“The text and history of the bail clause [in the Illinois Constitution] establish that it secures the right to seek pretrial release, and does not mandate any particular system for obtaining such release,” wrote Alex Hemmer, the Deputy Solicitor General who drafted the brief.

Pages A81 to A84 of the Raoul appellant’s brief enumerates a complete list of offenses that are denied pretrial release, including all felony offenses stated in the 725 ILCS 5/110-6.1. The SAFE-T Act will not allow for an immediate and unfiltered release of defendants. Instead, it will implement a gradual system for current defendants in jail to apply for release. Ultimately a judge must decide whether they can be released until trial.

If a defendant is reviewed for pretrial release, the State’s Attorney’s office must notify all victims and witnesses of the crime about the possibility of pretrial release, so they may obtain a protective order. This clause of the SAFE-T Act is in compliance with the Rights of Crime Victims and Witnesses Act.

The SAFE-T Act also implemented new rules for offenders if they are released pretrial. Among these restrictions are electronic monitoring, psychological evaluations and surrendering any firearms to law enforcement.

Besides the new rules of the Pretrial Fairness Act, many other provisions of the SAFE-T Act have already been implemented through 2021 and 2022 as Public Act 101-0652. The provisions include rules about law enforcement training, correctional facilities and other criminal justice reforms. 

The Illinois Legal Aid website provides a complete outline of cash bail changes introduced by the SAFE-T Act. The oral arguments for Rowe v. Raoul will be held on March 14, at 9:00 a.m., and Illinois residents can watch it live on the Illinois court website, under the March 2023 Illinois Supreme Court docket tab.