The fight to end cash bail in Illinois

In a historic first, Illinois had been poised to be the first state in the country to completely eliminate cash bail on Jan. 1. However, just hours before the law, the Pretrial Fairness Act, was set to take effect, the Illinois Supreme Court issued an injunction blocking its implementation statewide. The order came in response to a ruling by a lower court in Kankakee County which two days prior had found that the law, part of a larger criminal justice bill — the Safety, Accountability, Fairness and Equity-Today Act (commonly referred to as the SAFE-T Act) — was unconstitutional.

The high court has said that the stay was necessary “in order to maintain consistent pretrial procedures throughout Illinois,” and has promised an expedited appeal process which has already been initiated by Illinois Attorney General Kwame Raoul. As of yet, no hearing date has been set.

Circuit Judge Thomas Cunningham, who rendered the initial finding that the law was unconstitutional, based his ruling on the idea that the law violated the separation of powers in the Illinois constitution by “depriving the courts of their inherent authority to administer and control their courtrooms and to set bail.” Such a ruling could have profound implications on future laws impacting criminal justice reform if such authority is upheld to be vested solely in the courts.

Sixty-five counties in the state were party to the lawsuit against the bill, which was filed amidst a barrage of reactionary and oftentimes racist attacks against the end of cash bail. Initially it appeared that only those counties which were party to the lawsuit would maintain cash bail, while the remaining counties in the state would proceed with its abolishment. That changed when the Illinois Supreme Court issued their late ruling on New Years’ Eve. Prior to that, many counties had been preparing for nearly two years for this change and had made extensive provisions to implement the change.

An unequal system

The SAFE-T was introduced to the legislature by the Illinois Legislative Black Caucus following the 2020 nationwide uprisings against police brutality. Across the country, lawmakers scrambled to introduce reforms intended to tamp down the massive civil unrest that rocked both large cities and smaller towns and counties.

Among those bills, the SAFE-T Act, and especially the Pretrial Fairness Act, was one of the more sweeping and comprehensive attempts. In addition to ending cash bail, the law also limits the offenses that people can be arrested for, mandates the use of police body cameras by 2025, bans chokeholds, limits the purchase of military equipment by police departments and provides methods to decertify police officers along with other reforms.

In a testament to the strength of the movement at the time, an early version of the bill even ended qualified immunity for police, which insulates officers from lawsuits arising from their conduct while in uniform, a long-standing demand of the movement against police terror and violence. However this provision was stripped out by Democrats under pressure before the bill was signed into law.

While many parts of the SAFE-T act have already gone into effect in Illinois, those addressing bail and pretrial detention were delayed until 2023, and have attracted the most vicious attacks from reactionary voices and elements of the state such as police departments and prosecutors.

Under the current bail system in Illinois, which mirrors those around the country, judges have authority to set an amount of money that people must pay in order to be released from jail while awaiting trial. This means that the wealthy are able to buy their way out of jail, while the poor who haven’t even been convicted of a crime must stay behind bars while awaiting their trial. On average in Illinois this wait is over a month, and in Cook County, which includes the city of Chicago, is a staggering 76 days. This long wait before people have even had their day in court is massively disrupting to employment, families and entire communities and contributes to a cycle of poverty for many.

As a result activists have long viewed this cash bail system as one of the pillars upholding a systemically unequal and racist justice system.

Instead of cash bail, the PFA replaces it with a new hearing system with transparent scoring that determines whether a person will be released. Only those deemed a serious flight risk or danger to the community will be detained. For the vast majority of petty offenses, pretrial incarceration will no longer be an option.

The long road to victory

Soon after being signed into law by Governor J.B. Priztker on Feb.2, 2021, the SAFE-T Act, and the PFA in particular, became the target of a nation-wide disinformation campaign. In the lead-up to the 2022 midterm elections, the People Who Play by the Rules PAC poured over $42 million to smear the PFA as a “purge law.” Corporate media networks rallied around this narrative, with Fox News calling the PFA “America’s most dangerous law.” According to this elite-funded narrative, abolishing cash bail would unleash lawlessness and violence across Illinois. However, no evidence has been provided to support this assertion, with the right wing relying instead on racist tropes and fear mongering. In other states where the use of cash bail has been heavily curtailed, like New Jersey, there has been no measurable rise in crime that can be attributed to this system.

Coordinated disinformation campaigns, financed by wealthy Americans, are nothing new. In fact, there’s nothing in place to stop a handful of wealthy people funding ads to sway public opinion. The viral panic around the PFA reminds us that the wealthiest will resort to all manner of lies and underhanded tactics to maintain the status quo.

The 2022 midterm elections in Illinois largely became a referendum on the Pretrial Fairness Act. Darren Bailey, a Republican running for governor who was bankrolled in part by the Democratic Governors Association centered his campaign around blocking the PFA. Bailey’s campaign even aired an ad claiming he would reinstate cash bail — before cash bail had even been abolished. Bailey went on to lose the election to incumbent J.B. Pritzker.

Local Republicans and some Democrats also declared their opposition to the so-called “purge law.” Candidates and corporate media opposed to the PFA frequently relied on racist rhetoric. Fake newspapers were distributed across the state, including one featuring pictures of Black men while falsely claiming that murder suspects would be released from jail.

This appeal to racism and fear was soundly defeated. Across the state, voters turned out in favor of the PFA. Even in heavily white suburban areas like Illinois’s 6th Congressional District where candidate Keith Pekau built his campaign on opposing the PFA, and where the GOP spent heavily, Democratic candidates won.

This electoral victory was not necessarily an embrace of the Democratic party by voters. In fact, progressive ballot measures like the Workers Rights Amendment outperformed Democrats in almost every county, suggesting that even traditionally conservative midterm voters support expanding union protections and other policy measures traditionally thought of as ‘progressive.’

Although Democrats had supported the PFA in the immediate aftermath of the 2020 protests, as the Jan. 1, 2023, implementation deadline crept closer many began to change their tune.

Prior to the election, the Democrats did their best to keep proponents of the Pretrial Fairness Act from publicly defending the reform. They focused on “fact checks” of the most absurd lies, rather than a broad defense of the reforms themselves. Their strongest talking point was to point out the unfairness of cash bail.

Some Democrats even launched a last minute attack on the Pretrial Fairness Act. In the final few weeks before the election, state senator Scott Bennett (D-52) introduced SB4228, an amendment designed to gut the SAFE-T Act. SB4228 would have kept the plan to abolish cash bail but given police and prosecutors total discretion to detain anyone accused of a crime without trial.

Grassroots organizations, like the Illinois Network for Pretrial Justice — a major proponent of the PFA — mobilized an emergency campaign to defend the SAFE-T Act. Through a combination of protest, legislative pressure and media coverage, the rapid grassroots response succeeded in defeating SB4228.

Nonetheless, after the election, the bill was quietly watered down, with last minute amendments approved by the Democratic supermajority in the state legislature. Yet even with these changes, the bill is still one of the largest reforms to the system of cash bail to date.

By mid-December 2022, the PFA had survived attacks from both the Democrats and Republicans due to widespread popular support. The most reactionary sections of the capitalist class failed to defeat the PFA at the ballot box and failed to defeat it in the senate. They then turned to what is the last line of defense of the status quo, the courts, filing last minute lawsuits just before the law was set to take effect.

A nationwide trend

This betrayal of working-class Illinoisians by the state Supreme Court is disappointing, but not surprising. It follows the well-documented historical trend of courts being bastions of reaction and a tool the wealthy use to subvert democracy time and time again.

The injunction is in line with recent U.S. Supreme Court rulings, such as Dobbs v. Jackson Women’s Health Organization, which struck down access to abortion, and Vega v. Tekoh, which overturned Miranda rights. Now, the USSC has its eyes set on repealing basic voting rights later this year in Moore v. Harper.

The Courts, at both the state and federal levels, are determined enemies of democracy. In the rare instances where bourgeois democratic structures work in favor of the working class — when the most minor of concessions are passed — an antidemocratic bulwark of disconnected judges provide the last line of defense.

As the crises of capitalism intensify — from wars abroad to crackdowns on workers at home — the ruling class will need to rely more and more on overtly antidemocratic actions to maintain control over the justice system, the economy and all aspects of society. Attacks on the working class will increase as discontent with the current system rises.

The struggle continues

The Illinois Supreme Court’s decision is not yet final. An expedited hearing has been promised, but no date is yet set. While the court is widely expected to overturn the decision of Judge Cunningham and allow the PFA to go into effect due to its Democratic supermajority, the issuance of the last-minute stay throws that into question. The court may give Democratic lawmakers the out they need to renege on their commitment to abolishing cash bail now that they feel the pressure from 2020 has subsided.

These reforms were only passed due to the power of the people to make change by shaking this country to its core during the long hot summer of 2020. It is both a testament to what can be accomplished, and a reminder that all the people’s victories under this system are only temporary gains that once won, must be fiercely defended.

Feature photo: Protesters demonstrate outside of Cook County, Illinois, Jail. Liberation photo

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