Just days before the new SB 2034 took effect, there was talk of additional changes to the Illinois pretrial release system in criminal cases.
The Illinois Supreme Court plans to create a special Commission on Pretrial Practices, consisting mostly of prosecution and defense lawyers, judges, legislators, and court clerks. In a statement, Chief Justice Lloyd Karmeier said the commission’s overall goal would be a system that limits pretrial detention to those cases that involve defendants who pose clear threats to society. He also said that the commissioners will closely examine the underlying issues and study variations between different jurisdictions in the state.
There is no timetable for a commission report.
Guidelines for Pretrial Release in Illinois
The U.S. Constitution says nothing about pretrial release in criminal cases, aside from the Eighth Amendment’s prohibition against “excessive bail.” This language implies that the bail bond system which most jurisdictions use, including Illinois, is constitutional. The prohibition also implies a balancing test, which the Supreme Court has fleshed out over the years. Some factors to consider in setting bail include:
- Severity of Offense: Bail is almost always lower in misdemeanors than in felonies because there is a presumption that people facing less serious charges are likely to remain in the jurisdiction and stand trial.
- Amount of Evidence: Similarly, if the state’s case is largely circumstantial, most judges assume that the defendant will make all assigned court dates and fight the case.
- Risk to Public: Capital murder is usually not a bail-eligible offense due to the risk that such defendants present. The same thing applies if the defendant has threatened witnesses in the case or perhaps relatives of the alleged victim.
In all these instances, bail cannot be a means of punishment. Instead, the judge must set the minimum amount of security needed to guarantee the defendant’s appearance at trial. Therefore, some other factors include the defendant’s ability to travel (if any) and the defendant’s connections to the community.
2018 Bail Reform in Illinois
In June 2017, Governor Bruce Rauner signed S.B. 2034, a law which extended the state’s RICO anti-street gang act and made some changes to the state’s pretrial release system. Some specific changes include:
- Right to Counsel: Cook County and many other jurisdictions extended the right to counsel to bail reduction hearings, but that requirement is not in the Constitution. Therefore, a state statutory right is very important.
- Least Restrictive Means: The law requires judges to utilize “the least restrictive conditions or combination of conditions necessary to reasonably assure the appearance of the defendant for further court proceedings and protect the integrity of the judicial proceedings from a specific threat to a witness or participant”. Some have hope that this language will increase the use of nonmonetary pretrial release, but the language is not mandatory.
- Mandatory Re-Hearing: If the defendant faces non-violent charges (most misdemeanors, Class 3 and Class 4 felonies) and has not posted bail within seven days, the judge must hold a bail reduction hearing. However, there is no guarantee that the judge will reduce the amount or allow pretrial release.
Other changes include provisions for a statewide risk assessment tool like the one Cook County uses, a legal presumption against the use of monetary bail, and a $30 a day credit for time served towards the bail amount.
Count on Experienced Lawyers
Bail is an important component of a criminal defense. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Robert Hickerson)