Yes, an Illinois law eliminates cash bail, but some people will still be detained before trial

In January 2021, the Illinois Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act, aimed at reforming many areas of the state’s criminal justice system, was signed into law by Gov. JB Pritzker.

"This legislation marks a substantial step toward dismantling the systemic racism that plagues our communities, our state and our nation and brings us closer to true safety, true fairness and true justice," Pritzker said in a statement when the law was signed. 

Many provisions of the law took effect that year, while some others are set to begin in January 2023 and 2025.  

Many VERIFY readers, including Richard, Anthony and Katerina, have since reached out to the team to ask if it’s true that the law eliminates cash bail in the state, citing recent viral social media posts that have made these claims. 

Some news headlines also suggest removing cash bail means all detained people will be released before trial, and VERIFY readers asked us to clarify whether that’s also the case.

THE QUESTION

Does an Illinois law eliminate cash bail?

THE SOURCES

• SAFE-T Act text
• Institute for Illinois Fiscal Sustainability
• Office of Illinois Gov. JB Pritzker 
• Illinois State Bar Association’s Steering Committee on Equity and Justice

THE ANSWER

Yes, an Illinois law eliminates cash bail as of January 2023. 

However, the law does not mean all detainees are automatically released. Authorities can still detain people who are dangers to public safety, flight risks or repeat offenders.  

Sign up for the VERIFY Fast Facts daily Newsletter!

WHAT WE FOUND

Under the Illinois SAFE-T Act, detainees will not be required to post bail for their pretrial release beginning January 2023. But that doesn’t mean everyone charged with a crime will be automatically released, as prosecutors can still argue someone should remain in jail because they are a danger to public safety, flight risk or repeat offender. 

In a summary of the SAFE-T Act, the Institute for Illinois’ Fiscal Sustainability says the law amends a criminal procedure code dating back to 1963 to “abolish the requirement of posting monetary bail on or after January 1, 2023.”

The text of the SAFE-T Act also eliminates multiple references to “cash bail” and “bond,” instead replacing them with “pretrial release” and “conditions of pretrial release.”

Most jurisdictions in the United States operate a cash bail system, where the court determines how much someone has to pay for their release from jail. The cash amount “serves as collateral to ensure that the defendant appears in court for their trial,” the Center for American Progress explains. 

But some advocates have voiced opposition to cash bail, arguing that it creates inequities in the criminal justice system.

The Coalition to End Money Bond, an advocacy group in Illinois, explains that “in the current system, the amount of money someone has determines whether they can be released – not whether they pose a threat to someone else or are likely to flee prosecution.” 

Opponents of the law, including an Illinois mayor, argue that the elimination of cash bail poses a safety threat to residents of the state.  

While the law does eliminate cash bail, it doesn’t mean the state will release anyone who is charged with a crime and awaiting trial, as some people have claimed on social media. 

“There is no such thing as a ‘non-detainable’ offense,” a spokesperson for Gov. JB Pritzker told VERIFY in an email. 

Judges can decide whether to deny pretrial release to a defendant when it’s necessary to protect someone’s safety, the Illinois State Bar Association (ISBA) Steering Committee on Equity and Justice explained. The initial court appearance to make this determination usually occurs within one to two days. 

The SAFE-T Act states that a person will only be detained “when it is determined that the defendant poses a specific, real and present threat to a person, or has a high likelihood of willful flight." 

“[The law] specifically ensures that release decisions in domestic violence and sexual violence cases are made by a judge after a careful hearing and goes further in taking victims’ safety into consideration than the current process,” the ISBA committee wrote in a statement. “Under the current system, money bonds frequently allow people to buy their release from jail despite safety concerns.”

More from VERIFY: Fact-checking claims about Tennessee proposed marriage bill and child age

The law also says those charged with a “forcible felony offense for which a sentence of imprisonment, without probation, periodic imprisonment or conditional discharge, is required by law upon conviction” can be denied pretrial release.

But both the governor’s office and ISBA committee confirmed pretrial detainment isn’t limited only to these offenses. 

For example, a meme that has circulated widely on social media claims someone charged with second-degree murder would be released before trial under the new law. In reality, someone charged with that crime could still be detained for a variety of reasons, such as posing a flight risk, being a repeat offender, or posing a threat to public safety for a variety of reasons.

“The false memes are focusing only on one part of the law, but there are other parts that allow an alleged offender to be held no matter what their crime is because they pose risk,” the governor’s spokesperson said. 

If a court does decide to detain a person charged with a crime before trial, it must provide a written finding “as to why less restrictive conditions would not assure safety to the community and assure the defendant’s appearance in court,” the law says. 

More from VERIFY: Yes, law enforcement is still required to read you your Miranda rights