How Illinois Became the First State to Abolish Cash Bail

On July 18, 2023, the Illinois Supreme Court released an opinion that settled a fight most of the state had been watching for months. A long list of county prosecutors and sheriffs had sued to block a 2021 law that would end money bail, and a trial judge in Kankakee County had agreed with them just days before the law was to take effect at the start of 2023. The state's high court had frozen everything while it considered the case. Now, by a vote of five to two, it ruled that the Illinois Constitution allowed the legislature to do what it had done. Sixty days later, on September 18, 2023, Illinois became the first state in the country where no one could be held in jail before trial simply because they could not pay. The money that had decided freedom for generations was gone. In its place stood something that most people had never seen: a courtroom hearing on whether a particular person is too dangerous to release.

In short: Illinois's Pretrial Fairness Act, part of the SAFE-T Act signed in February 2021, ended cash bail. After the Illinois Supreme Court upheld it on July 18, 2023, the system changed that September: most defendants are released, and prosecutors who want someone held must ask for a detention hearing and prove their case by clear and convincing evidence. Early reviews have found fewer people jailed before trial without the crime wave opponents predicted.

A state that had already fired the bail bondsmen

Illinois had a head start that few people outside the state know about. In 1963, decades before the modern reform movement, Illinois effectively shut down the commercial bail bond industry. Instead of paying a private bondsman a nonrefundable fee to post bail on their behalf, defendants in Illinois could deposit ten percent of the bail amount with the court, and much of that deposit would be returned at the end of the case if they made their court dates.

Most of the country kept the bondsman system, in which private companies, backed by insurers, profit from the gap between what a family can raise and what a judge demands. The United States is one of very few countries that allows that business at all.

The 1963 change mattered for what came later. Illinois had no powerful bail bond lobby with a direct financial stake in keeping money bail. When reformers came for the rest of the cash system half a century later, one of the strongest opponents in other states was simply not in the room.

But the ten percent system still rested on money. A deposit of a few hundred dollars was out of reach for many people, and those who could not pay it stayed in jail. On any given day, a large share of the people in Illinois jails were there not because a judge had found them dangerous but because they could not produce the deposit.

The groundwork in Chicago

Illinois did not arrive at abolition in a single leap. Organizers in Chicago, particularly the Chicago Community Bond Fund and a broader Coalition to End Money Bond, spent years paying bail for people who could not afford it and documenting who was held and why. Their reports put names and stories to the numbers in the Cook County Jail, one of the largest single-site jails in the country.

In 2017 the chief judge of the Cook County Circuit Court, Timothy Evans, issued an order directing judges to set bail only in amounts that defendants could afford, unless they found that the person should be held. It was a significant step, and it showed that releasing more people did not lead to the chaos critics predicted. But it also exposed the limits of fixing money bail from within. Judges varied in how they applied the order, and a bail amount that a defendant can "afford" is still a bail amount.

Advocates concluded that the system needed to be rebuilt by law, not tweaked by order.

A bill born in a hard year

The opening came in 2020. After the police murder of George Floyd in Minneapolis, the Illinois Legislative Black Caucus put forward an ambitious agenda that included policing, criminal justice and other reforms. The criminal justice package, known as the SAFE-T Act, for Safety, Accountability, Fairness and Equity-Today, passed during the legislature's lame-duck session in January 2021. Governor J.B. Pritzker signed it on February 22, 2021.

The law covered a lot of ground, including police body cameras, use-of-force rules and officer certification. The part that drew the most attention was the Pretrial Fairness Act, which ended money bail and created a new process for deciding who stays in jail before trial. It was scheduled to take effect on January 1, 2023, giving courts nearly two years to prepare.

The panic of 2022

Those two years were not quiet. In the run-up to the 2022 election, opponents attacked the law loudly, and some of the attacks went well beyond the record. Claims circulated online that on January 1, 2023, every jail in Illinois would be emptied, a so-called "purge," and that people charged with murder would walk free. Neither was true. The law set out clear categories for which prosecutors could seek detention, including the most serious violent crimes.

The legislature passed amendments in late 2022 that clarified several points, including the categories of offenses eligible for detention and how the transition would work for people already in custody. Pritzker won reelection that November.

Then, on December 28, 2022, a Kankakee County judge ruled in favor of the prosecutors and sheriffs who had sued. He found that eliminating money bail violated the state constitution, which says people shall be "bailable" by sufficient sureties, and that the legislature had overstepped. On December 31, the Illinois Supreme Court stayed the law statewide to avoid confusion while it heard an appeal. For more than half a year, some counties operated as before while everyone waited.

What the Court decided

The case, Rowe v. Raoul, turned on the meaning of a few words in the Illinois Constitution. The challengers argued that "bail" means money, so a constitution guaranteeing bail requires a system of money bail. The state argued that bail in the constitution refers more broadly to pretrial release, and that the legislature has power to decide the conditions of that release.

Chief Justice Mary Jane Theis, writing for the majority, agreed with the state. The constitution's bail provisions, the court held, do not require monetary bail, and the legislature acted within its authority in replacing money with other conditions of release and a detention process. The court also rejected the argument that the law violated the rights of crime victims under the state constitution. Two justices dissented, arguing that the constitution's text protected bail as historically understood and that the legislature had gone too far.

The ruling set an effective date sixty days out. On September 18, 2023, money bail ended in Illinois.

How the new system works

The structure is worth knowing in detail, because it is the part most other states will look at.

1. Release is the default. Most people charged with a crime are released before trial, sometimes with conditions such as reporting to pretrial services, staying away from certain people or places, or electronic monitoring in limited circumstances.
2. Prosecutors must ask to detain. If a prosecutor wants someone held, she must file a petition. Detention is available only for listed categories of offenses, mostly serious and violent ones, or when the person has shown a willful intent to flee.
3. There is a hearing. The defendant has a lawyer. The prosecution must present evidence, and the defense can respond.
4. The burden is high. The state must show by clear and convincing evidence that the proof is evident or the presumption great that the person committed an eligible offense; that the person poses a real and present threat to the safety of a person or the community, based on specific facts, or a real risk of willful flight; and that no condition or combination of conditions could address that threat.
5. The decision is reviewable. Detention orders can be revisited, and defendants who remain held must have their detention reviewed as the case continues.

The heart of the change is transparency. Under money bail, a judge who thought someone was dangerous could set a high bail and say nothing more. A wealthy defendant could pay it and walk out; a poor one, regardless of risk, stayed in. Under the Illinois system, a judge who wants to hold someone must say why, on the record, based on evidence, and the reason can be tested.

What has happened since

The law has been in effect for about three years as of this writing, long enough for early studies but not for final verdicts.

Reviews by researchers at Loyola University Chicago's Center for Criminal Justice and others have found that jail populations fell after the law took effect, and that the share of released people who missed court or were charged with new offenses did not rise in the way opponents predicted. Prosecutors have used detention petitions in many serious cases, and judges have granted many of them. Crime in Chicago and across Illinois followed broadly the same downward pattern after 2023 that many cities across the country experienced.

None of this means the system is flawless. Some prosecutors argue that the eligibility list leaves out offenses that should qualify, or that judges deny petitions too often. Some defense lawyers argue the opposite: that detention petitions are filed too readily and that electronic monitoring has expanded as a substitute for jail. Courts in some counties had to staff up quickly to handle many more hearings. Those are real disputes, and they are the kind a working system should have.

Why New York and Illinois went different ways

Illinois is often discussed alongside New York, which also cut back on money bail but saw a fierce political backlash. The comparison is instructive.

New York ended money bail for most lower-level charges but did not give judges a way to consider whether a person was dangerous. Illinois ended money bail for everyone, but paired that with an explicit, evidence-based detention process for the most serious cases. When a critic asks what happens to a person accused of a violent crime who threatens a witness, Illinois has an answer: a prosecutor can ask to hold him, and a judge can agree after a hearing.

The strongest argument against money bail was always that it detained people for poverty while letting wealthy people buy their way out regardless of risk. The strongest argument for some pretrial detention is that a few people do pose serious danger. Illinois's design answers both. Here is our argument: that combination is why its reform has held up politically better than its opponents expected, and it is the model reformers should study first.

New Jersey offers a third model. Voters there approved a constitutional amendment in 2014 allowing judges to deny release to dangerous defendants, and a companion law took effect at the start of 2017. Judges use a risk assessment tool and can order conditions or, after a hearing, detention. Cash bail did not vanish from the statute books, but it nearly disappeared in practice, and the state's pretrial jail population fell substantially. Illinois went one step further by removing money from the equation entirely.

There is also a lesson in patience. Illinois took nearly three years between the law's signing and its taking effect, partly by design and partly because of litigation. Courts, prosecutors, defenders and pretrial services had time to train and prepare. A reform that lands on an unprepared system can fail for reasons that have nothing to do with its merits.

The other side's argument, fairly stated

The prosecutors and sheriffs who sued were not all opponents of reform in general. Their concerns included constitutional text, the safety of victims, the strain on their offices, and the fear that some defendants who should be held would slip through because their charges did not qualify. Those concerns are legitimate. Some were addressed by the 2022 amendments; others remain live arguments in the legislature.

The answer is not to dismiss them but to measure. If certain offenses produce repeated harm by people on release, the eligibility list can be adjusted in the open, with evidence. If detention hearings are too rushed, courts can be funded to do them properly. What Illinois has shown is that a pretrial system can make those decisions transparently, rather than through a bail schedule nobody examines.

What you can do

• Find out how your state handles pretrial release. Whether a state uses money bail, and how detention decisions are made, varies widely. Ask your state legislators where they stand; our representatives page lists them with contact details.
• Volunteer with court watching or pretrial support. Bail funds and court-watch groups exist in many states. Look them up under justice reform in our organizations directory.
• Watch for state constitutional cases. Reforms like Illinois's can rise or fall in state courts. Federal cases on criminal procedure are tracked on our Supreme Court page, and our criminal justice reform topic page follows state cases and new laws.
• Ask your local prosecutor candidates. Prosecutors decide whether to seek detention. In elections for district attorney or state's attorney, ask candidates how they would use that power and what data they would publish about it.

Illinois proved something that seemed impossible for a long time: that a state can stop putting a price on freedom and still keep people safe. The hearings that replaced money bail are slower, more demanding and more honest. They ask the question bail was always pretending to answer.