The end of cash bail? Backers and opponents ponder the consequences as bill awaits Pritzker’s signature.

CHICAGO — You would think DuPage County Public Defender Jeff York would be happy to see the end of cash bail in Illinois, as promised by criminal justice legislation that passed Wednesday, and he is — for the most part.

While clients of lesser means wouldn’t have to sit in jail until trial, he said, others who now receive affordable bails could see them taken away as nervous judges weigh the possibility that the accused could commit other crimes if released.

“It really depends on how it ends up getting applied,” York said. “I don’t know what judges will do.”

Such uncertainty is hanging over much of the state’s criminal justice system as prosecutors, police and defense attorneys ponder the consequences of one of the most sweeping pieces of legislation to pass the Illinois General Assembly in years.

Pushed over the finish line in the closing hours of the legislature’s lame-duck session, the bill is, in large part, an amalgamation of proposals members of the Black Caucus and other legislators and advocates have sought for years in Springfield.

Aside from abolishing cash bail across Illinois on Jan. 1, 2023, the overhaul creates a more robust statewide system for tracking law enforcement misconduct and decertifying officers who commit wrongdoing.

It also requires every officer to be equipped with a body camera by 2025 and does away with requiring sworn affidavits for people filing complaints against police.

The bill still needs Gov. J.B. Pritzker’s signature to become law, but he said Friday he is “very pleased” with the bill. He did not commit to signing it, though he noted eliminating cash bail was one of the central issues of his campaign.

“You know where I stand on most of the issues in the bill,” he said.

Because the General Assembly that passed the measure adjourned and a new set of lawmakers has been sworn in, Pritzker can’t use his amendatory veto powers to ask lawmakers to remove portions of the bill he might not like.

Cook County sneak peek

Though the state’s prosecutors and police agencies were almost entirely opposed to the elimination of cash bail, saying it would make communities less safe, Cook County revamped its bail policies in 2017.

That’s when Chief Judge Timothy Evans ordered his colleagues to set bail only in amounts defendants could afford. After that, the jail population plummeted, as did the number of cases in which cash bail was set.

Searching for middle ground between setting high bail and releasing defendants outright, judges leaned on electronic home monitoring, leading the sheriff’s office to protest it didn’t have the resources to appropriately monitor defendants facing serious charges.

Evans’ order was an interim step between the old Cook County system and the one envisioned by the new legislation, longtime criminal defense attorney Dawn Projansky said.

Four years ago, she said, a defendant with a felony history who was found in a car with a gun likely would have had to post $5,000 to get out of jail. After Evans’ order, the same scenario would probably prompt a $500 bond payment plus an electronic monitoring ankle bracelet.

Under the new law, that person might be released on the ankle bracelet without paying anything — achieving the same effect without the defendant having to dip into his pocket, she said.

She added that judges, who will still make the ultimate call, will surely continue holding defendants who face serious charges.

“They think the murderers are going to get (released)?” she said. “No, they’re going to be no bail. The same people who are getting no bail today are still going to get no bail in 2023.”

Complicated cases

Experts said some defendants might find themselves in the middle. Those without criminal histories who are charged with violent offenses, for example, or those with violent histories whose new charges are minor.

York said people accused of domestic battery, a misdemeanor, could also be jammed up. The bill says people facing that charge should be held if their release poses a danger to others — a caveat that could apply in almost any case, he said.

But because more than half of domestic battery cases are dismissed before trial, he said, people could be in jail for months on charges that won’t hold up.

“(The bill) will cut both ways,” he said. “It’ll benefit some people and be a detriment to others.”

Advocates for domestic violence victims said some people accused of that crime are already being held in jail — but it’s because they can’t afford to get out, not because they present more of a threat than other defendants.

Under the bill, if a prosecutor wants to detain a defendant charged with misdemeanor domestic violence, a hearing would have to be held within 24 hours. Prosecutors would have to present evidence that the defendant is such a threat that jail is the only remedy, said Sarah Staudt, a senior policy analyst and staff attorney at the Chicago Appleseed Center for Fair Courts.

“Right now, what we do for (domestic violence) cases is we really don’t look at much of anything at the bond hearing,” Staudt said. “And we pick a number, and some people can post and some people can’t. Who can get out and who stays in has nothing to do with the facts of the case. It has to do with money.”

A working group will be studying to see how to handle domestic violence cases under the new system, she said.

Prosecutors disagree

Organizations that represent police and prosecutors have objected to the bill, saying it was crafted haphazardly and jammed through the legislature too quickly.

McHenry County State’s Attorney Patrick Kenneally had a characteristic take.

“Without hyperbole, this bill seems to all but mandate the immediate pretrial release of drug-dealers, arsonists, and drunk drivers irrespective of their likelihood of re-offending, the danger they pose generally to the public, or their willingness to comply with conditions of their release,” he said in a statement.

“That is absurd and out of step with the expectations that victims and Illinoisans have for their justice system.”

But there are exceptions. Newly elected Lake County State’s Attorney Eric Rinehart, a Democrat, suggested the bill would end the notion that cash bail correlates with the risk posed by the offender.

“These commonsense reforms will prevent tragedies like the case of Cassandra Tanner-Miller, in which her abuser posted $5,000 and then killed their 18-month-old child,” he said in a statement. “It will prevent the gross disparity we see between holding a non-violent offender on a small bail while Kyle Rittenhouse (who is accused of murder) is released in Wisconsin because supporters posted millions.”

Cook County State’s Attorney Kim Foxx, a longtime champion of cash bail abolition, also singled out Rittenhouse.

“It doesn’t matter how much money you have if you are a threat to the public,” she said.

Time for adjustments

The bill’s proponents said the two-year window before cash bail would end should allow for education and training to help adjust the system. Foxx said the interval is also critical to ensure there is adequate funding and pretrial services for those who are released.

Hamilton County State’s Attorney Justin Hood, who until Friday was the president of the Illinois State’s Attorneys Association, said the delay could also allow legislatures to fix language he called vague and contradictory.

Staudt said the new system should bring more evidence and facts to the critical decisions judges now make in minutes.

“Criminal justice reform doesn’t have to be us versus them,” she said. “It doesn’t have to be reformers versus law enforcement. And it certainly doesn’t have to be victims versus reformers. We can make these reforms by working together.”