September 22, 2023
On July 18, 2023, the Illinois Supreme Court released a ruling that upheld the pretrial release provisions of the SAFE-T Act as constitutional, making Illinois the first state in the nation to entirely eliminate cash bail. These pretrial provisions, known as the Pretrial Fairness Act, took effect this week. As of September 18, 2023, judges are no longer allowed to order someone charged with a crime to pay money as a condition of their pretrial release. Additionally, the Pretrial Fairness Act included procedural changes for the criminal case process, including: procedures for law enforcement to cite and release someone arrested from police custody in certain misdemeanors and traffic offenses; new bond court hearing procedures involving an initial hearing where judges set conditions of release, and an additional detention hearing in cases where the State’s Attorney files a petition to deny the person pretrial release; and new standards for offenses that are eligible for pretrial detention based on risk to public safety or risk of willful flight.
The Civic Federation has been following the SAFE-T Act since it was passed in early 2021 and will continue to study the implications of the ruling in the coming weeks and months. The following is a roundup of some of the Civic Federation’s existing research on this landmark legislation and the pretrial reform issue in Illinois.
What does the SAFE-T Act do?
The SAFE-T Act impacted many aspects of the criminal justice system including policing, pretrial court processes, sentencing and prison policies. Among the wide-ranging provisions were pretrial provisions, referred to as the Pretrial Fairness Act, which made changes to the pretrial release process, including the abolishment of cash bail. There are two key pieces of legislation that compose the SAFE-T Act: 1) Public Act 101-0652, the criminal justice omnibus bill passed by the Illinois General Assembly and signed by the Governor in February 2021; and 2) Public Act 102-1104, a trailer bill that amended certain portions of Public Act 101-0652. See our summaries of these pieces of legislation below:
- Summary of Provisions in Illinois House Bill 3653: Criminal Justice Omnibus Bill—A summary of the major provisions of the criminal justice omnibus bill which was passed by the Illinois General Assembly in January 2021 and signed into law by Illinois Governor JB Pritzker as Public Act 101-0652 in February 2021, which became known as the Safety, Accountability, Fairness and Equity – Today Act, or SAFE-T Act.
- Summary of Amendments to Public Act 101-0652, the SAFE-T Act—A summary of key amendments made to the SAFE-T Act, which were passed by the General Assembly on Dec. 1, 2022, and signed by Governor Pritzker on Dec. 6, 2022.
During the campaign season leading up to the November 2022 General Election, some misleading information was circulated to Illinois voters about the Pretrial Fairness Act component of the SAFE-T Act. The Civic Federation published the following blog post in an effort to provide accurate information about changes to the pretrial release process and the types of charges eligible for pretrial detention:
- Correcting Misinformation about Illinois Pretrial Reforms: What the Pretrial Fairness Act Does and Does Not Do
What are the financial implications of eliminating cash bail?
Prior to the abolishment of cash bail, judges often required people accused of crimes to pay money as a condition of their release, referred to commonly as “posting money bond.” These upfront payments were held until the conclusion of the case and were frequently used to satisfy the payment of fees, fines and restitution upon conviction. Circuit court clerks could retain 10% of the deposited money bond amount (limited to up to $100 in Cook County). The amount remaining after the payment of fees, fines and court costs was refunded back to the person who posted the bond. With the elimination of money bond payments, circuit court clerks will no longer retain 10% of each bond payment, and judges will no longer be able to order fines and fees to be paid out of upfront bond payments.
To understand the potential financial impact of eliminating cash bail to circuit court clerks, the Civic Federation worked with the Administrative Office of the Illinois Courts (AOIC) on behalf of the Illinois Supreme Court’s Pretrial Implementation Task Force to identify the amount of bond payments collected by circuit court clerks around the state, and how those funds were disbursed to government agencies. These findings were detailed in the following reports.
- Elimination of Cash Bail in Illinois: Financial Impact Analysis—This report details data from 96 Illinois counties (including Cook County) over the five-year period from 2016-2020. An addendum includes an additional year of data reported for 2021 across 95 counties (excluding Cook County). The study found that a large percentage of bond payments were not returned to the person who posted bond after the conclusion of a criminal case, but rather were often applied to satisfy a variety of court fees and fines. Some fees and fines support local (county or municipal) government agencies and some go to the State of Illinois. The analysis also examined how much “lost revenue” circuit court clerks can expect based on data from past years once cash bail is no longer in effect.
- What Does the Elimination of Cash Bail Mean for Illinois Jurisdictions?—This blog post summarizes the analysis of bond payments collected in 95 counties throughout Illinois in 2021 and how those funds were distributed. Based on the 2021 data, circuit court clerks in these 95 counties collectively retained a total of $6.8 million in bond payments. This 10% fee will no longer be retained by circuit court clerks after cash bail is eliminated. The study found that out of a total of $83.1 million collected in bond payments that year, nearly half (48%) were used to pay court-ordered fees (including the 10% circuit court clerks’ fee), 10% went toward court-ordered fines, 3% were applied to restitution payments, and 39% were either used to pay private attorneys or refunded back to the person who posted the bond.
In addition to the potential for “lost revenue” as a result of circuit court clerks no longer retaining a portion of bond payments, implementation of the SAFE-T Act has and will continue to have a financial impact on government agencies’ expenditures. At the state level, several State of Illinois agencies increased their budget requests in order to comply with SAFE-T Act requirements, as described in the following blog post.
- Illinois Criminal Justice Agency Budget Requests for FY2023 Reflect Implementation of SAFE-T Act—This blog post examines the estimated cost to state agencies directly responsible for implementing the pretrial and policing portions of the SAFE-T Act. The Illinois Supreme Court requested an increase of $26 million in FY2023 to fund 165 new positions as part of a new Office of Statewide Pretrial Services, which will provide pretrial services in 71 counties that did not have prior existing pretrial services departments. Additionally, some of the policing provisions in the SAFE-T Act led to increased costs to the Illinois State Police for body-worn cameras and to the Illinois Law Enforcement Training Standards Board for requirements related to the certification and decertification process, information sharing and the implementation of a new complaint process against officers.
How will the SAFE-T Act’s impact be tracked?
Some of the key questions we have surrounding the impact of the Pretrial Fairness Act are: how will the new pretrial release provisions impact the number of people detained in jail vs. released pretrial, how many people will be ordered to special pretrial conditions such as electronic monitoring, and will those released pretrial return to court as expected and refrain from committing new crimes? While we do not yet know the full impact of the Pretrial Fairness Act, we do have some past data from Cook County to use as a basis for comparison prior to implementation of the Pretrial Fairness Act.
- What the Data Tell Us about Bail Reform and Crime in Cook County—This blog post found that based on Cook County pretrial data reported as of 2021, 80.4% of people charged with felonies attended all of their scheduled court hearings and 81.8% of those on pretrial release were not charged with new offenses while out on pretrial release. Among those who were charged with a new crime while on release, 15% were charged with a non-violent crime and 3% were charged with a violent crime.
- Observations of Cook County Felony Bond Court Hearings: Analysis and Recommendations—This report published in partnership with the League of Women Voters of Cook County evaluated the current proceedings and pretrial release decisions in felony bond hearings, finding that despite a Cook County Circuit Court order from 2018, judges continued to order the payment of cash bond in the majority of pretrial cases as of 2022.
See also the Loyola University of Chicago Center for Criminal Justice’s website tracking the Pretrial Fairness Act in Illinois, which presents data tools and research briefs to understand the potential impact the new law could have on outcomes like pretrial detention.
The Civic Federation will be following the implementation of the Pretrial Fairness Act closely in the coming months and will provide updates as data becomes available.