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posted on 3/19/23

On February 22, 2021, Governor Pritzker signed the SAFE-T Act, otherwise called the Pretrial Fairness Act (PFA). The law has sweeping criminal legal reform components to it, including eliminating monetary bail. However, there have been challenges to the constitutionality of the law, which we have been following closely to help our clients navigate this complicated situation. 

What is Money Bail? 

Money bail or cash bail is an amount of money set by a court as a condition for the pretrial release of an individual who has been arrested. The individual in custody has a hearing within 72 hours of arrest, where prosecutors recommend a bail amount. The court then determines conditions for release, including the amount of money bail. The individual then must pay that amount in cash or certified funds to be released prior to trial. 

Under the SAFE-T Act, that process would mainly remain the same but with added protections for defendants. Defendants would be given a right to have legal representation at their initial hearing, where prosecutors have to detail reasons for that individual’s detention prior to trial. The law would require the state to prove ‘by clear and convincing evidence’ that the defendant committed the crime, poses a threat to a specific person(s), and that no other pretrial conditions (i.e., house arrest) can mitigate the defendant’s risk to that person or persons. 

A Loyola University Study found that between 2020-2021, 193,387 were arrested in Illinois. Of that population, 90% were held for varying sentences prior to trial. On a daily basis, approximately 13,827-15,994 people were being held pretrial. Therefore, the result of this law taking effect would impact thousands. 

Has the Safe-T Act Taken Effect? 

Before a legal challenge in Kankakee County, Illinois would have been one of the first states in the United States to eliminate money bail. Under this new system, courts would have to consider a range of factors, such as the nature of the offense, the defendant’s criminal history, and more, in determining pretrial release decisions. The Court determined, for a number of reasons, that the law is unconstitutional. One such reason is that the judge ruled bail is not a matter for the legislature to decide, it is for the courts. Therefore, the law violates the Separations of Powers Clause and other provisions of the Illinois Constitution. However, cash bail could still stay in effect in certain counties, including Cook, at that point. 

The SAFE-T Act was set to take effect on January 1, 2023. However, the Illinois Supreme Court halted the implementation of the law by ordering a stay to ensure existing pretrial procedures stayed in place during ongoing litigation over the SAFE-T Act. The primary reason for this was that the law on cash bail would vary from county to county and create unjust legal consequences. In the meantime, we are all awaiting the results of the appeal in the Illinois Supreme Court, which will provide a decision on the merits of the constitutionality of the SAFE-T Act. Therefore, the SAFE-T Act is not in effect presently, and money bail is very much intact. 

Glasgow & Olsson Can Help. 

If you need representation for a criminal charge or have questions about the Safe-T Act and how it applies to you in Cook County, Glasgow & Olsson is uniquely qualified to help. When you need an attorney, experience matters. Contact us today to learn how our experience can get you the results you deserve.