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Illinois’ highest court halted the law to abolish cash bail in the state. What’s next?

Law and Knowledge sculptures outside the Illinois Supreme Court
Randy von Liski
Law and Knowledge is one of two sculptures by Charles J. Mulligan at the front entrance to the Illinois Supreme Court. Both sculptures were placed in 1909, the year following the dedication of the building.

Just before the start of the new year, the Supreme Court of Illinois halted the implementation of a law that would eliminate the practice of cash bail statewide — hours before the bill was set to take effect.

Marie Franklin, a community organizer and candidate for mayor in East St. Louis, said she was disappointed to see the news.

“This is about humanity. This is about being that country that we say we are,” Franklin said. “To be accused of a crime, even a low-level crime, and to have the decision about whether you go home or not [be] based on how much money you have in your pocket is just not equal to what our values say we are as a country.”

If the Pretrial Fairness Act had taken effect, Illinois would have been the first state in the country to end cash bail — a practice that many consider to be unfair to lower-income residents who cannot afford the payment to be released from jail ahead of their trial.

“It should never be the case that somebody is in jail solely because they don't have the money to pay their way out,” Sarah Staudt, director of policy for the Chicago Appleseed Center for Fair Courts, told St. Louis on the Air. “If we're going to use jail at all, we should be using it based on rational decisions made by judges that are made carefully after having all the evidence in front of them, and it should be based on whether someone poses a risk to other people, not just on how much money they have in their pocket.”

The high court’s ruling came after a Kankakee County Circuit Court judge ruled that the elimination of cash bail in the state was an overreach by lawmakers and that it was unconstitutional. Circuit Judge Thomas Cunnington said the law inappropriately amends a section of the Illinois Constitution that states that “all persons shall be bailable by sufficient sureties.”

Since Cunnington’s ruling applied to some counties in the state and not others, the state’s Supreme Court wrote on Dec. 31 that “in order to maintain consistent pretrial procedures throughout Illinois,” the Pretrial Fairness Act was stayed “until further order of this Court” while the justices finish hearing an appeal of the Kankakee County decision.

Alexa Van Brunt, director of the MacArthur Justice Center’s Illinois office, said Cunnington’s assertions are not valid.

“They make arguments about this definition of bail … that are not correct and separation of powers arguments trying to suggest that this law, in some way, takes away the discretion of judges to rule their courtrooms and to determine conditions of pretrial release,” Brunt said. “Nothing could be further from the truth. Judges still retain all the discretion in the world to make sure that people can come back to court. They can do so by assigning other, non-monetary conditions. And if a state's attorney wants to hold somebody in jail prior to trial, they can move to detain that person and there can be a hearing with evidence to show that person should be detained.”

The Illinois Supreme Court has called for expedited briefing of the lawsuit from Attorney General Kwame Raoul, who is defending the law. Oral arguments are scheduled for March, and Brunt said it’s likely that there will be a decision soon after.

“But the upshot of that is this law is delayed for months for no reason,” she said. “And it's really a tragedy.”

To hear more from Franklin, Staudt and Brunt about the effort to abolish cash bail in Illinois, listen to St. Louis on the Air on Apple Podcast, Spotify, Google Podcast, Stitcher, or by clicking the play button below.

The future of cash bail in Illinois

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is produced by Miya Norfleet, Emily Woodbury, Danny Wicentowski, Elaine Cha and Alex Heuer. Avery Rogers is our production assistant. The audio engineer is Aaron Doerr. Send questions and comments about this story to talk@stlpr.org

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Emily is the senior producer for "St. Louis on the Air" at St. Louis Public Radio.