Pretrial Fairness Act: Where Are We Now (Originally published 3/12/2024)
The Pretrial Fairness Act and the Elimination of Cash Bail in Illinois
On September 18, 2023, after extensive litigation in the Illinois Supreme Court, the Pretrial Fairness Act, commonly referred to as the SAFE-T Act, went into effect in Illinois. Codified beginning at 725 ILCS 5/110-5, this landmark legislation eliminated cash bail and financial conditions of release in criminal cases. Originally introduced in 2021 as Senate Bill 4052 by Senator Robert Peters, the Act replaced all statutory references to “bail,” “bail bond,” or “conditions of bail” with the term “pretrial release.”
Under the new framework, families can no longer raise funds to post bail for defendants detained in the Cook County Jail. This seismic shift fundamentally alters the pretrial justice system in Illinois, and nowhere is its impact more visible than in Cook County.
First Appearance Court and Judicial Options
What was once known as Central Bond Court is now called First Appearance Court. Judges presiding over these hearings no longer determine a bond amount by weighing a defendant’s danger to society, likelihood of flight, or history of court compliance. Instead, they must decide whether to detain or release, often with limited conditions such as recognizance, curfew, or electronic monitoring.
Although the pretrial services department still provides risk assessments, the court’s discretion has been significantly narrowed. Under the Act, the State is required to file a petition to detain whenever a defendant is charged with a detention-eligible offense. Prior to this reform, such petitions were rarely filed, and judges often used high bond amounts—sometimes millions of dollars—as a de facto way to ensure detention. That practice is no longer possible.
The Old Bail Framework
The prior statute, 725 ILCS 110-5(b)(1)-(3), required bail to be:
Sufficient to ensure compliance with bond conditions;
Not oppressive; and
Considerate of the financial ability of the accused.
Cook County courts had already taken steps to reduce inequities, releasing many defendants held on low financial bonds onto electronic home monitoring (EHM) or eliminating financial conditions altogether. Judges frequently granted defense motions to reduce bail to zero, recognizing the inherent unfairness of detaining defendants solely due to poverty.
Illinois:
The First State to Eliminate Cash Bail
Illinois is the only state in the nation to abolish cash bail entirely. While many serious offenders remain detained under the new system, inconsistencies persist.
Detention before trial raises profound constitutional and ethical concerns. Defendants—legally presumed innocent—may spend months or years in Cook County Jail, where conditions are harsh, overcrowded, and often dangerous. Inmates face restricted movement, limited family contact, and heightened risks of violence. The psychological toll is severe, and critics note that changing terminology—referring to “individuals in custody” rather than “inmates”—does little to alter the reality.
EHM
Electronic Home Monitoring
Electronic Home Monitoring (EHM)
The Act has dramatically increased reliance on electronic home monitoring. Defendants on EHM must typically remain at home, with limited exceptions for medical, legal, or employment purposes. By the mid-2010s, participants were granted two days of free movement each week, but staffing shortages and enforcement challenges persist.
Media coverage of crimes committed by defendants on EM has fueled public concern, even though such incidents may not represent broader trends. Critics argue that the legislature, driven by advocacy groups and political momentum, underestimated these challenges when enacting the SAFE-T Act.
Detention-Eligible Offenses
Under 725 ILCS 5/110-6.1, defendants charged with serious crimes—such as murder, armed robbery, home invasion, sexual assault, arson, kidnapping, and certain aggravated batteries—are detention-eligible. To detain, the State must prove by clear and convincing evidence that:
Proof is evident or the presumption great that the defendant committed the offense;
The defendant poses a real and present danger to a person or the community, or a high risk of flight; and
No combination of conditions could mitigate that risk.
Non-Detention Eligible Offenses and A Two-Tiered Justice System
Non-Detention Eligible Offenses
For less serious charges, release is presumed. Defendants are typically granted release with minimal conditions or placed on EM. Appellate review of trial court decisions has been inconsistent, leaving uncertainty about the scope of judicial discretion.
A controversial rule provides a 48-hour grace period before EM violations are investigated, raising questions about accountability and public safety.
A New Two-Tiered Justice System
Although the SAFE-T Act was designed to eliminate wealth-based disparities, it has arguably replaced one two-tiered system with another. Wealthier defendants can afford private attorneys, who manage fewer cases and devote more resources to their clients. By contrast, indigent defendants must rely on overburdened public defenders.
Before the Act, families often used bond refunds to pay for private legal representation. With cash bail eliminated, that option has vanished, leaving many low-income defendants with diminished access to experienced counsel. In practice, the Act may have increased inequality in legal representation, even as it reduced inequality in pretrial release.
The Future of the PFA
Where do we go from here?
The Pretrial Fairness Act represents one of the most sweeping bail reforms in American history. While its intent was to eliminate the unfairness of wealth-based detention, its practical effects are complex and controversial. Illinois now stands as the only state to abolish cash bail, serving as a national experiment in pretrial justice.
Whether the Act creates more fairness—or simply shifts inequities into a different form—remains to be seen. What is clear is that the stakes are high: liberty, justice, and public safety all hang in the balance
Read an April 14, 2024 Article “Lawmakers Want Changes To Safe-T Act” at https://www.advantagenews.com/news/local/lawmakers-want-changes-to-safe-t-act/article_f0358d1c-f8e2-11ee-a9b5-53bbcfc92190.html
6 month report on the Act Https://civicfed.org/sites/default/files/2024-03/PFAImplementationCookCounty.pdf
Attorney Jonathan S. Goldman has been a practicing criminal defense trial lawyer in Cook County, Illinois for over 15 years and practices in Milwaukee and southeastern Wisconsin as appointed counsel for the Offie of the Wisconsin State Public Defender. The viewpoints and opinions expressed here are those of Jonathan Goldman only and do not represent the views of Goldman Law Chenter, LLC, nor any partners, subsidiaries, or other entities. Attorney Goldman’s views do not represent those of the Cook County criminal defense bar. We welcome guest submissions to our “What The Law?” blog. We do not accept paid sponsorships for any of our posts or materials.
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