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The elimination of cash bail in state courts, due to take effect in two months, won’t automatically turn loose suspected violent offenders and will create a system fairer to defendants accused of low-level crimes, Cook County State’s Attorney Kim Foxx said during a talk Thursday at South Suburban College.
The Illinois Supreme Court’s ruling Tuesday upholds a provision of a new state law that would make Illinois the first state in the country to do away with cash bail for criminal defendants awaiting trial
“There will now be a system that I believe will be more fair,” Foxx said to enthusiastic applause from about 40 people in the South Holland school’s performing arts center.
The justices gave trial courts 60 days to prepare for the new rules, with cash bail to be eliminated Sept. 18.
Foxx said under the existing system, prosecutors may ask a judge to set a certain bail amount or ask that a defendant be held without bail, but that “judges and judges alone make the determination as to what happens to someone pretrial” and that won’t change.
The bail amount “is not a pretrial punishment,” but the system has punished people charged with low-level offenses who can’t afford relatively low bail, she said.
“They are sitting in jail not because they are a threat to the public, but because they cannot afford bail,” Foxx said, while there are “people charged with murder today who can write a check” and gain their freedom before trial.
Writing the majority opinion in the Supreme Court’s 5-2 decision, Chief Justice Mary Jane Theis said setting bail is not “the only means to ensure criminal defendants appear for trials or the only means to protect the public.”
“Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims,” Theis wrote.
The overhaul of the bail system is part of the Safety, Accountability, Fairness and Equity — Today Act, or SAFE-T Act, which was signed into law by Gov. J.B. Pritzker in February 2021.
The court rejected arguments that the elimination of cash bail would stymie the ability of courts to protect victims and their families, saying the SAFE-T Act’s pretrial provisions take victims’ rights into account.
“Those provisions require a court to consider the ‘nature and seriousness of the real and present threat to the safety of any person or persons that would be posed by the defendant’s release,’” Theis wrote.
Under the new system, defendants will appear for two hearings: an initial hearing, also known as a conditions hearing, and, if prosecutors decide to pursue detention, another hearing designed to provide a more comprehensive look at whether someone should be released or detained pretrial.
Foxx said there has “been so much fear mongering” about the elimination of cash bail, and said judges will still be able to keep people behind bars before trial if they are deemed a public threat.
“We want people who are a threat to our public safety to be detained,” Foxx said.
Bail changes were to take effect Jan. 1, but implementation was halted by the state Supreme Court in late December following a ruling from a Kankakee County judge, who found the measures were unconstitutional.
Those attending the program were asked to write questions on cards that were given to Foxx, with some questions concerning juvenile crime.
Foxx said many youths who come in contact with the criminal justice system are dealing with problems such as parents or guardians who are unemployed or may have substance abuse problems.
The children themselves may have experienced the violent loss of a close friend or family member, but lack access to mental health trauma counseling, resulting in a “generation of traumatized children,” Foxx said.
She also decried a lack of opportunities for diversions for young people to avoid becoming ensnared in the criminal justice system.
“We don’t have places for these kids to be able to be kids,” such as after-school activities, Foxx said.
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If those underlying issues are not addressed, we will “see them again and again and again” turn up in the criminal justice system, she said.
In areas where crime rates, particularly among juveniles, are highest, they are also “the most under-resourced” communities as far as access to programs to address problems such as lack of access to jobs or mental health care, Foxx said.
“We cannot default to the criminal justice system to deal with these issues,” she said. “I want to make sure parents have the resources to care for their children.”
First elected state’s attorney in 2016, Foxx has said she will not run again after her term expires next year. She was asked about her plans after leaving office.
“I don’t have a plan,” she said.
Foxx said that “I’m fully committed to serving out my term. I have work to do.”
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