Money will no longer determine whether someone in Illinois stays in jail while facing charges starting Jan. 1, a monumental shift cheered by criminal justice advocates and denounced by prosecutors who have filed dozens of lawsuits as the state prepares to be the first in the U.S. to entirely eliminate cash bail.

New York and New Jersey have already drastically reduced their reliance on money bail in recent years, but neither has gone as far as Illinois, where Democrats who control the Legislature approved legislation in January 2021 that erased a system they argue unjustly punishes the poor and disproportionately puts more Black people in jail.

Half of the prison population in Illinois in 2019 was Black, according to the U.S. Department of Justice, even though only about 15% of Illinois' residents are Black.

"We've got to make decisions based on a person's threat level and their failure-to-appear risk, not their ability to pay. Our cash bail system has effectively punished the poor and innocent and rewarded the guilty and wealthy, and we can no longer have that," state Sen. Elgie Sims told Law360 in a Nov. 9 interview.

The Chicago Democrat sponsored the bill along with the Legislature's Black caucus in response to the national reckoning with racism in the U.S. following the police killing of George Floyd. Democratic Gov. J.B. Pritzker signed the law shortly after it passed.

The approaching end to cash bail in the Prairie State has prompted derisive television ads, including one where podcaster Joe Rogan claimed bail is being eliminated "for almost everything dangerous." It has also led to viral social media videos likening the new law to "The Purge," the horror movie where crimes go unpunished for one night each year.

"I have reiterated time and time again that cash bail does not mean the person won't be detained. It simply means that the size of your wallet won't determine your ability to be held in custody," Sims said.

For the lowest-level offenses — most misdemeanors and traffic violations not punishable with prison time — the presumption will be to release people with a court summons. Suspects can still be detained without bail for the most serious violent offenses, but prosecutors must prove in a hearing before a judge that someone is a danger or a flight risk. The new law requires defendants have a court-appointed public defender for those proceedings.

Getting rid of cash bail was part of a wide-ranging, 700-plus page bill that overhauled several parts of the criminal justice system, including increasing the use of body cameras and changing police training and use-of-force standards.

The legislation amended, added or repealed 265 different statutes, according to lawsuits from prosecutors — but most of the changes have already taken effect, so state attorneys are now focused on blocking the elimination of cash bail.

About 60 state attorneys have filed lawsuits, which have been consolidated in Kankakee County with arguments set for Dec. 7.

The lawsuits warn of disastrous consequences from ending cash bail.

"A person who commits the offense of aggravated DUI, a crime which may have resulted in death or great bodily injury to a victim, cannot be detained based on risk to the public, and so in many case[s] must only be cited and released pending a court date, all of which places the community as a whole at risk," read the lawsuit from Madison County, which is nearly identical to the others.
The lawsuits argue eliminating cash bail removes "a tool the courts have as an inherent right to use to manage the court process" and ensure a defendant's continued appearance. The language concerning bail is so vague, the lawsuits contend, that "the Pretrial Practices Oversight Board has been unable to articulate uniform guidelines to comply with this act."

"The process for making a determination about who I can hold and under what circumstances, and what conditions I provide them upon their release from the jail after I book them, those kinds of things still need a great degree of clarity," said Jim Kaitschuk, the executive director of the Illinois Sheriffs' Association.

Kaitschuk said he still has questions about what's going to happen Jan. 1 with people who are in jail pretrial because they could not pay bail.

"I think that there's just so many unknowns," he said. "Everybody wants to know, 'Can you just explain this in a few quick bullet points?' This thing is so complicated, it's been difficult to condense into easily digestible pieces to explain to the public."

To prepare for Jan. 1, a task force that includes prosecutors, defense attorneys, judges and lawmakers have met regularly and held town halls since June, sharing their thoughts on potential pitfalls and fixes to recommend to legislators. One big concern is how much implementation will cost.

"For instance, you have to have face-to-face contact with the public defender, and the public defender has to be appointed," said Kane County Chief Judge Clint Hull, a task force member. "But there are some counties in the state, because of geography or just because of the population, they don't have public defenders available. The closest public defender may be an hour or an hour and a half away, and that public defender has multiple counties that they cover."

One solution would be to hire more public defenders, Judge Hull said, but the law doesn't include funding for that. The law calls for some detention hearings to be held within 24 or 48 hours depending on the severity of the charge, and that might require additional staffing.

Bail-processing fees help fund the state's court system as well as law enforcement agencies, and it's unclear how the state will replace that money, said Laurence Msall, president of the Civic Federation, a nonpartisan government research organization. In 2021, those fees totaled $6.8 million, according to a study from the organization.

"There [has] not been a consensus or even really a bill that's circulated that shows whether the state knows what the financial impact is going to be, if it's going to provide any different resources to these government agencies," Msall said.

The Illinois Supreme Court chose Kane County as a "pilot site" for implementing the law, meaning they've been receiving guidance from consultants to help create a sort of model handbook that other local governments can follow and adapt to their specific needs.

"Our job is to prepare ourselves for Jan. 1, and the real question is, when you have limited resources or you don't have the ability ... to do what the law requires, what do you do? Because you don't want to not follow the law, but if it's difficult to do that for a variety of situations, how do you problem-solve?" Judge Hull said.

He added that he's been meeting with chief judges throughout the state and is optimistic they're ready for the new law.

"We had a meeting last week where that exact question was asked, 'Are we ready?' Everybody's ready. Everybody's ready to go," Judge Hull said. "Once we get started, like anything else, we'll do the best we can, identify issues that we hope get fixed, but we're ready to go."

The judge said it will be important to be transparent with data collection to see how the new law is faring.

"We're going to have hard numbers that'll show these are the number of arrests that happened in Kane County, these are the number of people that came to court, this was the number of people who had petitions to be detained, and this is how many people were detained and on these offenses," Judge Hull said.

Illinois state attorneys say the law will make it more difficult to prove a defendant is a danger because prosecutors have to show a person is "a real and present threat to the safety of a specific, identifiable person or persons," as opposed to the current standard that someone poses a threat to any person.

When New York was working on bail reform in 2019, defining who is a danger became a major fight for advocates who wanted to eliminate money bail entirely but didn't want "a dangerousness provision," said Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice, an independent nonprofit that focuses on criminal justice reforms.

"There's a real fear that allowing judges to consider whether somebody poses a danger essentially allows for implicit bias to be part of the legal process," she said.

As a compromise, New York kept bail for the most serious felony offenses, Rahman said. After backlash from the bail bond industry and law enforcement, New York added more offenses in 2020 for which judges could set bail, she said.

New Jersey, which implemented bail reform in 2017, has seen a dramatic decline in its jail population, according to a 2020 judiciary report to the governor and Legislature. In October 2018, the jail population stood at 8,482, compared to 15,006 in October 2012, the year the state found 12% of inmates were being held because they couldn't pay $2,500 or less.

In October 2019, the jail population decreased to 7,937 and then went up to 8,930 in October 2020 — an increase attributed in part to the suspension of criminal trials due to the pandemic, according to the report.

"When New Jersey was first eliminating cash bail there, the media stories looked a lot like what the media stories look like in Illinois right now. The sky is falling, the world is ending ... all of these criminals are going to be released on the streets, and the reality couldn't be further from the truth," said Sarah Staudt, director of policy at the Chicago Appleseed Center for Fair Courts.

The number of people in jail who couldn't afford low bail amounts has also declined, according to the judiciary report. In 2018, the number of people who couldn't pay $2,500 decreased to 4.6%, and then went down to 2.4% in 2019. In 2020, it was 0.2%, or a total of 14 people. Meanwhile, the court appearance rate has hovered around 90% in 2017, 2018 and 2019.

"Any time I hear someone say [eliminating] cash bail means a person's going to walk free — it's just not true," Sims, the state senator, said. "What is true is taking cash bail out of the equation means that you're not stripping wealth from individuals, and we are not violating a fundamental constitutional right — which is you are innocent until proven guilty."

Judge Hull, who was a prosecutor for 15 years, said he agrees people should not be jailed because they can't afford bail for low-level nonviolent offenses "when you know they're going to appear, and they're not a threat to public safety."

And not having a cash bail system could be more effective in holding the most violent offenders, he said, recalling a case where someone charged with murder was able to walk free after bail was set at $3 million because his family was able to post $300,000.

"So in a situation like that, this law is great because if a judge finds that he should be detained, no matter how much money he has, he can't walk out the door," Judge Hull said.

And other states will pay attention to what happens in Illinois, according to Rahman.

"Really, what Illinois is a test of is, 'Is this the new direction? Is this the final frontier of no more money bail? Have we actually hit it, and can we keep moving forward?'" she said.

--Editing by Philip Shea and Lakshna Mehta.