Bloomberg Law
March 14, 2023, 6:48 PM

Abolishing Cash Bail Gets Sympathetic Ear at Illinois’ Top Court

Stephen Joyce
Stephen Joyce
Senior Correspondent

Illinois Supreme Court justices on Tuesday appeared willing to reverse a ruling that a law abolishing the state’s monetary bail system unjustly infringes on the state’s constitution and the powers of the Illinois judiciary.

An Illinois circuit judge in December 2022 struck down as unconstitutional those parts of the 2021 Safety Accountability Fairness and Equity-Today Act (SAFE-T Act, Pub. Act No. 101-652) that abolished the state’s monetary bail regime. Attorney General Kwame Raoul (D) appealed that decision directly to the Illinois Supreme Court, which heard oral arguments on Tuesday in the eagerly anticipated showdown between local law enforcement officers and a chief supporter of the legislation, Gov. JB Pritzker (D).

Justices queried lawyers on a wide range of topics that perhaps demonstrated they’re open to reversing the lower court decision. Justice Mary K. O’Brien asked why laws containing sentencing requirements are permissible but SAFE-T Act bail provisions aren’t. Justice Lisa Holder White asked if the law might limit the state legislature’s ability to set public policy. Justice Joy Cunningham asked plaintiff and Kankakee County State’s Attorney Jim Rowe about the fundamental purpose of requiring defendants to pay money to obtain pretrial release.

Chief Justice Mary Jane Theis spent time questioning Rowe about whether plaintiffs, which include prosecutors and police officers, even have standing in the case.

The justices took the case under advisement and will issue their opinion at a later date.

Whose Authority

Deputy Solicitor General Alex Hemmer, arguing for Pritzker and Raoul, argued the lower court decision should be reversed for two reasons. First, the state’s constitution gives defendants the right to seek pretrial release, but it “does not require the state to retain the institution of monetary bail,” he said. Second, “the General Assembly has concurrent constitutional authority to regulate pretrial procedures in Illinois,” including abolishing the state’s bail system, he said.

But Rowe argued the legislature overstepped its authority by abolishing monetary bail in a sweeping bill that included several changes to the state’s policing, enforcement, and sentencing procedures. “The simple way for the legislature to accomplish all of these reforms? Take the question, put it on a ballot, propose it to the people, let them vote on it. It quite simply is that easy,” Rowe said.

Holder White picked up on Rowe’s theme. “In the past we’ve seen where changes have been made with respect to who is entitled to bail made through constitutional amendment. Why didn’t that happen here, and should it have?” she asked.

“No, your honor, it should not have,” Hemmer said. “The legislature possesses currently constitutional authority to legislate on matters of civil and criminal procedure,” he said. “Unless a statute conflicts with a rule of this court or unduly infringes on judicial authority” the statute should be upheld, Hemmer said.

If allowed to take effect, the provisions will likely lead to delays in cases, increased workloads, expenditures of additional funds, and in some cases an inability to compel a defendant’s appearance in court, plaintiffs’ brief said. The legislature’s actions neither infringed on judicial authority nor offend the state’s constitution and “the circuit court’s contrary decision should be reversed,” the solicitor general’s brief said.

Separation of Powers

Rowe said sheriffs and others use monetary bail to allow people who are innocent until proven guilty a chance to go free before their trial begins, sometimes using monetary bail as a tool to compel defendants to show up for those court appearances.

Cunningham then asked Rowe why defendants have to pay for their release. “Is money the only way to achieve those ends, in your opinion?” Cunningham asked Rowe.

“I don’t believe plaintiffs are arguing that money is the only way, but certainly in some instances where a judge would find that non-monetary conditions are insufficient, the judge should have the tool that the people of Illinois have put in that judge’s tool box, and that’s the ability to impose a monetary condition of bail,” Rowe said.

Circuit Court Ruling

State’s attorneys and sheriffs in 64 Illinois counties in several lawsuits challenged the constitutionality of the SAFE-T Act. The lawsuits were consolidated into the one, eight-count complaint.

Circuit Court Judge Thomas Cunnington ruled in their favor, writing in a Dec. 28, 2022, decision that “the administration of the justice system is an inherent power of the courts upon which the legislature may not infringe and the setting of bail falls within that administrative power.” Therefore, “the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat,” the judge wrote.

The law entered into force Jan. 1, but its pretrial-detention elements were halted until the appeal to the Illinois Supreme Court case is resolved.

The law allows judges to order defendants detained pending trial if defendants have been charged with certain crimes and the court concludes a high likelihood of flight exists, or if defendants pose significant danger to the public.

The case is Rowe v. Raoul, Ill., No. 129248, oral arguments 3/14/23.

To contact the reporter on this story: Stephen Joyce in Chicago at

To contact the editors responsible for this story: Andrew Childers at; Alexis Kramer at

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