On Sept. 18, 2023, Illinois will take a historic step by becoming the first state to end the archaic system of cash bail. The moment is cause for celebration and deep appreciation for the communities, advocates and legislators who long toiled to make the law a reality. But this moment also requires cooperation and dedication to making the law work — even from those who previously opposed the new law.
Ending cash bail will improve the lives of many in our state. Under the cash bail system, a person’s access to wealth — not public safety — is the primary factor that determines who is released and who is jailed while awaiting trial.
The new law restores the critical principle of presumption of innocence by ensuring that an accused person can only be jailed pretrial if a judge finds they pose a threat to someone else or a high risk of willful flight — not because they can’t afford to pay an arbitrary sum of money. Reliance on cash bail negatively impacts Illinois’ most marginalized families, unfairly extracting millions of dollars from our poorest communities each year, as a 2021 report from the Civic Federation and the Illinois Supreme Court found. Under the new law, those resources will remain in communities where they belong.
It has been a long road to Illinois’ moment in history, but it has never been a straight line. Indeed, the final outcome of the matter was not clear until the Illinois Supreme Court rejected constitutional challenges brought by dozens of sheriffs and prosecutors from many parts of the state.
But now these politicians have a new role — they must implement the new law. And lest there be any confusion, every stakeholder in the criminal legal system has an obligation to follow the law and work to ensure that it fulfills the stated goal: to improve fairness and justice in criminal courthouses across Illinois.
Passage of the Pretrial Fairness Act, part of a comprehensive effort to reform the criminal legal system and policing in Illinois known as the SAFE-T Act, in January 2021 was the culmination of years of organizing by Illinois residents, extensive work by a bipartisan Illinois Supreme Court Commission between 2017 and 2020, and more than five years of debate and discussion in the Legislature.
During the last election cycle, political operatives spent tens of millions of dollars attempting to convince voters that the end of cash bail would undermine community safety. The candidates who embraced reform and were subject to these attacks won re-election. Those political arguments should remain in our rear-view mirror. The responsibility of every public official across the state is to make this law work in the most effective and efficient fashion.
Public officials must be held accountable for their actions — not for challenging the law, as that was their constitutional right. But now, they must be held accountable by their constituents for working to assiduously follow the law and make it work for the people in their jurisdictions. Those tasked with faithfully implementing the provisions of the new law every day in our communities include the very same prosecutors and sheriffs who have pursued now-failed lawsuits seeking to invalidate the act.
These officeholders cannot ignore or deliberately undermine the new policy and then claim that it is a failure. They made vigorous legal arguments that were not sustained. But it is now incumbent upon these officials to set aside their grievances and faithfully carry out their duties to implement the new law.
Further attempts to sabotage the Pretrial Fairness Act would disregard the will of many Illinoisans and jeopardize public safety. Sadly, we can expect that efforts by some dishonest political opportunists to continue undermining this hard-won reform for their own selfish ends will continue.
But we have a right to expect a higher standard of conduct from our public officials. That is why, as the Pretrial Fairness Act is implemented in the months and years ahead, the American Civil Liberties Union and our partners in the Illinois Network for Pretrial Justice will work to monitor the courts in communities across the state to ensure that the new law is being implemented for the good of all Illinoisans.
Benjamin Ruddell is a lawyer and the director of criminal justice policy at the ACLU of Illinois.
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