The Dec. 31 order of the Illinois Supreme Court delaying the effective date of the Pretrial Fairness Act might well give pause in every sense. The order was also perhaps a figurative “stay of execution.”
The order came in the wake of a ruling of a trial court in Kankakee County holding certain provisions of the act unconstitutional. The underlying suit was brought by some Illinois state’s attorneys, the majority of whom across the state did not support the legislation.
Not all, however, joined in the legal action, and under Illinois law, a trial court ruling has no binding effect on those who are not parties to the case. Thus, officials in counties that were not parties remained free to implement the act on Jan. 1.
In the wake of the declaration of the Illinois attorney general that he intended to appeal the ruling, the Supreme Court entered an order delaying the effective date of the legislation until further notice. Excluding Saturdays, Sundays and holidays, the order was almost literally an 11th-hour action.
Although bristling with potential problems in its application, the most controversial aspect of the act is the abolition of monetary conditions of release and so-called “cash bail.” Over the course of many months in the wake of its enactment, the debate over the abolition of cash bail occurred largely in the media, the act having reportedly not been the subject of meaningful debate in the Legislature. In all events, the debate has perhaps too often been breathless and witless in equal measures.
For now, longstanding provisions for pretrial release will remain in effect, including cash bail. A system long in place will thus proceed apace and, presumably, in the same direction.
However, it might be predicted that in some venues — if only as a matter of politics rather than law — cash bail will not be routinely sought by prosecutors or imposed by judges.
So be it. Indeed, perhaps the best and most one might hope for is that the right thing will at last be done for the wrong reason.
How we got here
There is a concerning trend in American culture that involves a desire to repudiate entire systems simply because a single facet either appears or proves to be deficient. This is perhaps what happened in the context of cash bail.
No objective observer on either side of any political aisle could credibly question the proposition that the rules of the cash-bail system have been frequently ignored or abused in some venues. The effect in some cases has been to establish an unintended system of preventive pretrial detention, clearly contrary to the intent of the Legislature.
Legislative and judicial oversight and intervention could — and should — have remedied the problem years ago. Yet the judicial branch of government did little or nothing, and the Legislature belatedly chose to overhaul an entire system, at this point to unknown effect.
This was perhaps akin to abandoning a working automobile merely because the windshield is fogged.
A missed opportunity
Regarding cash bail, the most pertinent statute has long provided — and until further order of the Illinois Supreme Court continues to provide — as follows:
“Monetary bail should be set only when it is determined that no other conditions of release will reasonably assure the defendant’s appearance in court, that the defendant does not present a danger to any person or the community and that the defendant will comply with all conditions of bond.”
Illinois law has thus provided — for decades — that cash bail simply is not favored and should be imposed only when a court finds that it is exclusively necessary to ensure future appearances and protect the public.
It is hard to imagine a more sensible and workable provision for monetary conditions of pretrial release. Yet even a casual tour of media reports over the years might establish that this wise and easily applied statute — whether as a rule of construction or social policy — has long gone unrecognized or unheeded.
What went wrong
A survey of news reports or even modest court experience along almost any timeline would readily suggest that bond hearings often take a detour from a statutory and constitutional legal path and into a performative political wormhole. Indeed, a recent case in an Illinois arraignment court might well illustrate this errant application of the cash-bail statute as well as an apparent misunderstanding of overarching rules of constitutional law.
In that case, the defendant was arrested while allegedly in possession of a machine gun, a very serious offense. He had a significant history of criminality and the offense he was charged with is nonprobationable.
The defendant’s record would have warranted the prosecution in seeking pretrial detention without any bond whatsoever under a separate statute. For reasons unknown, the prosecution elected not to do so and proceeded with the standard procedure of setting bond.
The judge first found the defendant to be indigent and appointed the public defender. The judge then received information regarding the circumstances of the offense and the criminal history of the defendant. The court ultimately set bond in the amount of $1 million.
One might easily imagine here Dr. Evil from the Austin Powers movies, with raised pinky finger, saying “One million dollars.” Yet this is not the place for sardonic wit or political satire. Indeed, the situation is the polar opposite of funny, just as the proceedings went in the polar opposite direction of that dictated by statutory and constitutional law.
The applicable statutory law is quoted above. Yet perhaps most importantly, establishing bail is fundamentally governed by the U.S. Constitution. In that regard, the Eighth Amendment explicitly forbids excessive bail. In addition, some 70 years ago, the U.S. Supreme Court interpreted the bail clause of the Constitution to require that bail be no greater than reasonably necessary to ensure a defendant’s appearance.
Given this legal backdrop, serious questions would arise from the reported case as well as many others:
1. How did the court conclude, as required by the statute, that a monetary obligation was the only condition of release likely to ensure future appearances and protect the public?
2. How did the court arrive at the particular figure of $1 million?
3. How was that particular figure reasonably necessary to ensure the defendant’s future appearance and, most importantly …
4. How could an indigent defendant who requires the assistance of a public defender possibly afford to post the required cash bail (10 percent of the bond, $100,000)?
Suffice it to suggest here that something was truly amiss in the case. It would appear that the court and the lawyers alike were either heedless or simply unaware of the applicable rules of statutory and constitutional law. Such does absolutely nothing to foster the rule of law.
One would dare suggest here that the reported case is far from atypical. It would instead appear to be one among many in which a monetary bond was imposed in a manner that ignores the text and purpose of statutory law and veers sharply away from a constitutional guide lamp.
Granted, possession of an automatic weapon by a convict is a serious crime. Yet does mere possession of such a firearm per se make any defendant dangerous, requiring that he or she be detained pending trial? Even if that is so in any case, how is it — whether as a matter of law or logic — that monetary bail is a necessary condition of release?
Establishing conditions for pretrial release in any criminal case requires an objective assessment of the facts and circumstances at hand along with an objective assessment of the character and condition of the accused. What has apparently often instead been brought to bear is a subjective, emotional assessment of a case; viewed not through the objective prism of the rule of law but instead through a clouded and distorting prism of politics.
Thus behold, in real time, some of the cultural lies and shadows of which Plato wrote, long present in the criminal-justice system. Such apparent ignorance or disregard of fundamental rules might alone have justified a hue and cry for the abolition of cash bail.
One might ever question whether any unfairness in the administration of cash bail was due to “racism” by any definition. It is more likely that any broad misconstruction or disregard of the pertinent rules was rooted instead in institutional intellectual indolence. In any event, the distinction is meaningless to anyone who was ever subjected to pretrial confinement under an errant cash-bail order.
Whatever the fate of the Pretrial Fairness Act and cash bail in Illinois, two questions will be and likely remain of foremost importance:
What do the words “pretrial fairness act” truly mean?
Will any new provisions also go unread and unheeded, only to be supplanted by a “fairness act” in an extralegal sense that only amounts to political theater?
Finally — and perhaps most importantly — what poses a greater threat to a viable culture based on the rule of law: barbarians at the gates or spiritless fools on the ramparts?
Perhaps the order delaying the effective date of the Pretrial Fairness Act will provide thoughtful persons in each branch of government, however enumerated, with something of value: time at last to think.
May informed and thoughtful voices ever be heard over the din of tribal folly.
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January 5, 2023 at 06:49PM