How Courts are Preparing for the End of Cash Bail
Inmates are led between the Cook County Jail and courthouse earlier this year. (Photo: Chicago Tribune)
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After the Illinois Supreme Court ruled the SAFE-T Act constitutional this summer, proceeding with the end of cash bail in Illinois courts, it sent prosecutors, defense lawyers, and the judiciary into a 60-day scramble to fully implement the new law.
When legislators amended the law late last year, they added nearly every violent felony charge that can result in jail time to the list of charges a judge can hold a defendant on awaiting trial. The original law left off many of those charges.
Champaign County Judge Brett Olmstead, who has been leading implementation in courtrooms in that downstate county, says the biggest change in execution of court cases will be a change from bond hearings, which could last just seconds in some cases, to more detailed detention hearings in which the state has to prove why a defendant should be held and the defense can argue why the accused person shouldn’t be held awaiting trial.
“The hearings are going to be a more robust process where, instead of just determining bail based on a probable cause presentation by the state, the state has to prove certain things by clearing convincing evidence,” Olmstead said. “[Prosecutors are] going to have to show either that the person is dangerous to a specific person or persons or the communities, or there's a high likelihood of willful flight of prosecution, depending on what standards apply to which offenses. Then we make a determination of whether the person is detained or not. If they're not detained, then we make a decision about what their conditions of release ought to be. If they are detained, then they're just held. There is no amount of money that can secure their release.”
Cook County Public Defender Sharone Mitchell, Jr. says the hearings will be more detailed, but he believes the necessary changes have been made in his office to handle the new cases.
“I think that these hearings are just going to go a little bit deeper and a little bit earlier in the case,” Mitchell said. “And we have made changes to accommodate that need.”
Supporters often cite an amendment to the law passed late last year, which Olmstead says, improved the new system dramatically from the original SAFE-T Act law.
“The law prior was very much muddled in the different standards of dangerousness that it applied and inconsistencies in the language that it used,” he said. “It was really hard to understand. HB1095 cleaned that up a lot and was a substantial improvement. It did, for the most part, clean things up so that there's only one standard of dangerousness and it also expanded the number of offenses where we have flexibility in being able to make those determinations. But, the statute does draw hard lines and decide that legislatively that there are some crimes where if a person is charged with that crime, then such a person could not be found by a judge to be so dangerous that they have to be detained pretrial. So it removes that from us, whereas under the old system, we had a lot, we had more flexibility in what we could do.”
DuPage County State’s Attorney Bob Berlin, a Republican who was involved in negotiations to amend the law last fall, says the detention hearings will require more work for prosecutors and defense attorneys, but will not likely be very dramatic.
“I think it's just going to be the state's attorney and the defense attorneys are going to argue what the facts are, and the defense attorney will argue certain factors in mitigation, and judge will make a decision,” Berlin said. “It's a burden, but not, I don't think it's overly burdensome.”
DuPage County even built an additional courtroom to handle the potential for additional cases.
Berlin says he argued for a model giving judges complete discretion on detention, but the legislature went in a different direction.
But, Mitchell, in Cook County, says he believes judges will have more discretion than in bond court currently.
“The current system oftentimes doesn't give judges a question, that they're kind of guessing at a number, and I guess hoping that the person doesn't have the money to bond out,” he said. [In] the status quo, a judge comes up with a number, and then it's on that person to figure out whether they can pull that money together. I don't know if the current system provides judges with the discretion that is, I guess, being desired. I think the system that gives judges more flexibility to say yes or no in a wider variety of cases actually is far more discretion than the status quo. So I don't think that this law is perfect. I don't think that any law is perfect. I think that it will take time to implement the system. But yeah, I don't know if I agree with this idea that judges should be given more discretion. I think judges have more discretion in this system than they had in the old system by far.”
Both sides pushed back on criticism of the law that violent criminals would immediately be let back on the street. Berlin said much of the arguments to detain a defendant won’t change, but will just require more detail.
“As long as we have a detailed petition,” Berlin said. “It requires obviously a level of communication between our office and the police department so that we have all the pertinent facts and we're able to get a defendant's criminal history. We're doing that right now. So, you know, for this county, I think we're gonna be fine. I can't speak to all the other counties. We've got a system in place where we're able to get that information quickly.”
Mitchell says judges will, in general, have the ability to determine if a defendant is a threat.
“This idea that the doors of the jail are going to fly open and all these folks that quote unquote should be detained and won't be detained, aren't detained because of the law, I just don't think that's very true,” he said. “The law gives judges the option, the decision to detain people charged with just about every violent offense in the book. Every kind of domestic violence offense, every type of gun offense. So I'm not sure that it's like the jail doors are going to fly open is the right framing.”
Nearly everyone we’ve spoken to involved with the law agrees there will need to be continual legislative tweaks, potentially as early as veto session this fall.
But Olmstead, the Champaign County judge, says the groundwork has been laid for some time and the
“I would say to the public that your judges statewide, I want to assure you, have been working very hard for a long time to make sure that we are all educated about this law, that we all have what we need to be able to apply it fully and fairly moving forward, and that we are always cognizant of the interests of victims and the public,” he said. “Trust your judges in applying this law. We're really working hard. [You’ll] find is that the judges in the state applied [the law] in a fair, conscientious manner for the interests, not only of the defendant's rights, but also the interests of victims and communities and community safety. We always had those things in mind.”
Each county handles criminal courts differently, but Berlin says the state’s second largest county is prepared.
“We're ready,” he said. “We've worked very hard, all of the stakeholders in this county. The judges, public defender, state's attorney, circuit court clerk, and our sheriff. We've tried to cover every potential issue that may arise.”
The law goes into full effect September 18.
