CBA Record November-December 2022

Drastic Changes in Illinois Pretrial Release Procedures: The PFA and Potential State Law Issues By Judge Marc W. Martin

O n the last day of the 2021 legis lative session, the Illinois Senate passed a sweeping criminal jus tice reform bill known as the Pretrial Fairness Act (PFA). The House version passed that same day, and shortly there after, the comprehensive bill (known as the SAFE-T Act) was signed into law. See Public Act 101-652. The PFA works a sea of change on many fronts. It makes Illinois the first state to eliminate monetary bail. Illi nois courts will begin operating under the PFA’s binary “release or detain” regime on January 1, 2023. Gone will be the days of deposit (D), cash (C), and property bonds. The purpose of this article is not to debate bail reform or proffer a nuts-and bolts guide on PFA administration, nor does it address statutory ambiguities or retroactivity questions in which mon etary bail amounts had previously been set. Rather, the focus is on potential state law issues.

Upholding the PFA Statutes are presumed constitutional, with the challenging party shouldering the burden of clearly establishing a violation (e.g., People v. Purcell, 201 Ill.2d 542, 546 (2002). Courts have “a duty to construe a statute so as to affirm the statute’s con stitutionality and validity, if reasonably possible.” People v. Hammond, 2011 IL 110044, ¶ 55. Whether a statute is wise or desirable is not a judicial concern. People v. Warren, 173 Ill.2d 348, 355-56 (1996). It is undisputed that the General Assembly has some authority to legislate in the area of pretrial release/bail. See People v. Bailey, 167 Ill.2d 210, 239-40 (1995). Notably, People ex rel. Gendron v. Ingram, 34 Ill.2d 623 (1966), and Schilb v. Kuebel , 46 Ill.2d 538 (1970), aff’d 404 U.S. 357 (1971), sustained the constitu tionality of legislative measures regulating monetary bail and sureties. Smart v. Carson, 50 Ill. 195 (1869), suggests that early Illinois practice did not sanction posting cash bail prior to trial.

In Smart , the supreme court deemed a sheriff’s act of accepting monetary bail for a larceny defendant “unauthorized and illegal.” See also Holland v. Rosen, 895 F.3d 272, 290 (3rd Cir. 2018) (“‘bail’ at the time of the [United States] Constitu tion’s ratification [did not] contemplate … monetary bail”); but see County of Rock Island v. County of Mercer, 24 Ill. 35 (1860) (defendant posted cash bail). In Illinois, statutes codifying monetary bail have long been on the books. See 37 Ill.Comp.Stat., ¶ 3363 (1920). If mon etary bail is purely a legislative creation, a separation of powers objection may lack validity. See In re P.H., 145 Ill.2d 209, 223 (1991); People ex rel. Sheppard v. Money, 124 Ill.2d 265, 284-85 (1988); People v. Walker, 119 Ill.2d 465, 479 (1988); Stru koff v. Strukoff , 76 Ill.2d 53 (1979). Article I, § 9 of the Illinois Constitu tion provides, “All persons shall be bailable by sufficient sureties…” Construing “suf ficient sureties” constitutional language, some state supreme courts have held that

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