Faced with a crushing avalanche of appeals under the law that eliminated cash bail in Illinois, the Illinois Supreme Court has rewritten the rules under which people charged with crimes can appeal orders from judges to be held in jail or monitored while they await trial.
On March 15, the Illinois Supreme Court issued orders adopting the recommendations of a task force assigned by the court to find ways to ease the burden that has been imposed on the state's appellate courts by criminal defendants and their lawyers under the so-called SAFE-T Act.
That law was enacted in 2021 by Gov. JB Pritzker and his fellow Democrats, as progressive lawmakers seized on anti-police sentiment stirred up amid the Black Lives Matter protests and riots of 2020 to push through a sprawling reform of virtually every aspect of Illinois' criminal justice system.
Illinois First District Appellate Justice David Ellis served on the task force addressing detention appeals.
| Illinoiscourts.gov
The cornerstone of the law, however, was a provision abolishing the state's traditional cash bail system for criminal defendants. The law essentially flipped the question of pre-trial detention, entitling criminal defendants to release from custody as they await trial, unless prosecutors can persuade a judge that releasing the defendant would present a danger to the community or that the defendant is a flight risk who otherwise would not show up to trial.
Those bail elimination provisions took effect in September 2023, after the Illinois Supreme Court rejected a legal challenge from dozens of county state's attorneys asserting the bail elimination provisions were unconstitutional and would lead to significant problems for Illinois communities and its courts.
Kankakee County State's Attorney Jim Rowe, who argued that case before the state Supreme Court, did not reply to a request for comment for this report.
Under the new provisions, numerous published reports have indicated a growing number of criminal defendants, including those accused of repeated violent crimes, have been released back into the community, despite the charges against them, where they have committed more crimes.
Supporters of the law have called such concerns over the law's effect on public safety overblown, asserting the past cash bail system also did little to ensure public safety, as judges were allowed to still release criminal defendants on bond.
Foremost among those supporters of the law has been Cook County State's Attorney Kim Foxx, who is not seeking election to a third term in office.
Foxx has instituted a host of policies and initiatives that have routinely placed her at odds with police and many in the public, including refusing to prosecute anyone who shoplifts less than $1,000 in merchandise from stores, and lax prosecution efforts against people accused of violent crimes, even those committed with guns.
These policy choices have, at best, coincided with a sharp increase in criminal activity in Chicago and many surrounding suburbs on Foxx's watch. Critics say the policy and legal changes backed by Foxx and her political mentors and allies have directly fueled the surge in gang shootings, armed robberies, carjackings, shoplifting and looting of stores, and other crimes.
While Foxx has not officially endorsed a candidate in the Democratic primary race to replace her, the coalition that brought her to office has endorsed Clayton Harris III. Harris has praised Foxx's performance, and has pledged to continue most of her policies.
On the other side, retired Judge Eileen O'Neill Burke has pledged to end Foxx's controversial policies, and restore strong enforcement of shoplifting laws and strenuously prosecute those accused of violent crimes, and particularly those accused of gun violence.
While the debate continues over the law's impact on violence and crime rates, the law has imposed a heavy burden on the state's court system. According to the March 1 report from the Illinois Supreme Court’s Pretrial Release Appeals Task Force, criminal defendants who were not immediately released pending trial have used the SAFE-T Act's appeal provisions to swamp the state's appellate courts with petitions seeking to overturn the judges who ordered them held in jail while they await trial.
According to the report, in the five months after the provisions took effect, Illinois appellate courts received more than 1,900 appeals from criminal defendants challenging judges' decisions to hold them in jail pending trial.
The report noted that under the previous system, appellate courts handled just 171 such appeals in the previous 10 years combined.
"In other words, we have gone from 17 bond appeals per year to a projected 4,557 PFA appeals per year—a 268-fold increase in volume," the task force report said.
According to the report, despite warnings from state's attorneys and other opponents of the legislation, the state's courts were still caught flat-footed and left scrambling to address the "staggering" surge in appeals.
The report noted the increased ability of criminal defendants to demand their release before trial will inevitably gum up other appellate court operations, including slowing the ability of appellate courts to handle appeals of actual criminal convictions.
The report noted ultimately the problems may demand further judicial reforms, potentially including allowing individual appellate judges to handle the appeals, rather than a full panel of three justices. Further reforms could include increasing the number of judges serving on state appeals courts or allowing appeals to be distributed among the state's five appellate districts, rather than force individual appellate courts to handle all appeals filed in their respective districts, regardless of the workload.
For now, however, the changes recommended by the task force and approved by the Illinois Supreme Court will seek to weed out meritless appeals of pre-trial detention orders or at least force criminal defendants and their lawyers to do more work before filing such appeals.
In the past few months, the task force noted a very large chunk of appeals have been filed as "a cursory, check-the-box affair," as matter of right, rather than fully explaining why the criminal defendants should be released.
The task force noted much of these rapid appeals are likely grounded in the current rules' requirement that such appeals be filed within 14 days of a detention order.
With this in mind, the new rules will eliminate that 14-day rule, and give criminal defendants as long as they wish, up to their trial, to appeal a judge's decision to hold them in jail.
Among other changes, the new rules will also:
- Require criminal defendants to file a motion with the lower court seeking "relief" from a detention order, before filing an appeal;
- Forbid criminal defendants from raising issues to the appellate court that were not first raised in their motion for relief in county court. The task force said this would return the appellate courts to their proper role of reviewing a lower court's decision. Criminal defendants would still be permitted to file a memorandum more fully explaining their arguments on appeal; and
- Limit criminal defendants to one pre-trial detention appeal at a time, to address the "administrative quagmire" produced by allowing single defendants "to have multiple appeals happening in the same case at the same time." Under the new rules, defendants could not file an "appeal from a subsequent detention or release order ... while a prior appeal by the same party remains pending in the appellate court." The task force said this change would "incentivize strategic thinking" by criminal defendants' lawyers "about which detention rulings to appeal."
The appellate judges on the task force noted the new rules will likely impose an even heavier burden on county courts, but said the burden is "not new" or "exotic." Rather, they said the burden was anticipated under the SAFE-T Act and brings pre-trial detention proceedings in line with all other kinds of court proceedings, in which lower courts handle the bulk of the process and appellate courts review their decisions.
"The burden of (pre-trial detention) appeals on the Appellate Court is unprecedented and unsustainable," the task force wrote. "The most promising way to lessen the burden is to prevent the Appellate Court from having to address appeals which are poorly conceived and inadequately argued."
The new rules are set to take effect April 15.
Also, on March 18, the Illinois Supreme Court issued an order extending for another six months a court rule allowing county courts to conduct pre-trial detention hearings remotely using audio and video streaming services to allow for greater flexibility in handling the increased burden.
Appellate judges on the task force included: Mark M. Boie, of the Fifth District Appellate Court; Eugene G. Doherty, of the Fourth District court; David W. Ellis, of the First District court; Margaret J. Mullen, of the Second District; and Lance R. Peterson, of the Third District.