State Supreme Court Upholds SAFE-T Act, Eliminates Monetary Bail

The Illinois Supreme Court has reversed lower court rulings and ordered that provisions of what is known as the SAFE-T Act will take effect in the state. 

The major provision of the Act that had not taken effect concerned monetary bail. The high court stated that the Illinois Constitution of 1970 did not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public.

The decision by the Supreme Court also ordered the provisions of the Act to be effective 60 days from today's ruling, or Monday, September 18, 2023.

The Act’s pretrial release provisions center on the abolition of monetary bail. Instead of monetary bail, the Act’s pretrial release provisions, as amended by the Follow-Up Act, establish a default rule that all persons charged with an offense shall be eligible for pretrial release on personal recognizance, subject to conditions of release that the trial court deems appropriate, such as electronic monitoring or home supervision. Although the Act eliminates monetary bail and provides that “[a]ll persons charged with an offense shall be eligible for pretrial release before conviction”, the pretrial release provisions allow the State to seek, and the trial court to order, pretrial detention of criminal defendants in certain specified cases. The court may order a defendant detained pending trial if the defendant is charged with any of an array of enumerated felony offenses and “poses a real and present threat to the safety of any person or persons or the community.” The court may also order a defendant detained pending trial, if the defendant has been charged with an enumerated offense or any felony “other than a Class 4 offense” and if the court concludes there is “a high likelihood of willful flight to avoid prosecution.” Under this new statutory scheme, “[a]ll defendants shall be presumed eligible for pretrial release,” and the State bears the burden of establishing a defendant’s eligibility for pretrial detention.

The Act also revised section 110-5 of the Code by removing all references to the term “bail” and all references to the trial court’s discretion in the determination of “the amount of monetary bail.” The Act replaced the provisions addressing the determination of “the amount of monetary bail” with provisions that set out factors the court must consider in determining the conditions of pretrial release. The Act also repealed section 110-7 of the Code, which provided for the deposit of 10% of any required monetary bail. The Act’s pretrial release provisions were scheduled to take effect on January 1, 2023.

On December 31, 2022, though, the elimination of monetary bail was stayed after a number of county State's Attorneys in Illinois, including Effingham County State's Attorney Aaron Jones, filed suit against the Act. Jones, during a break in court this morning, said the Supreme Court's decision was "disappointing, but not surprising."