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Bail reform in 2023? 2022 efforts in 3 states may impact the courts

January 4, 2023

By Bill Raftery

On January 1, a new Illinois law that eliminated cash bail was to have gone into effect. That law was just one of three recent efforts in California, Illinois, and New York to change the way courts oversee bail.

California: Much of the focus was on SB 262. As introduced and approved by the Senate, the bill would have required zero-dollar bail for all misdemeanor and felony offenses, except as specified. After numerous amendments, the Assembly version removed references to zero-dollar bail. Instead, it would have prohibited costs relating to conditions of release from custody from being imposed on a person released on bail or their own recognizance including, but not limited to, fees relating to conditions of release or the imposition of conditions of release that require the person released to pay for those conditions. Moreover, the Assembly version of SB 262 would have required the court to order a return of money or property paid to a bail bond licensee by or on behalf of the arrestee to obtain bail if either a) an action or proceeding against an arrestee who has been admitted to bail is dismissed or b) no charges are filed against the arrestee within 60 days of arrest.

Illinois: Initially passed in 2021 (HB 3653), amended in December 2022 (HB 1095), and set to go into effect January 1, 2023, the SAFE-T Act changed numerous laws related to criminal justice and policing, including provisions related to pre-trial release and bail. Under the act, cash bail would have effectively ended. Instead, crimes were categorized under 725 ILCS 5/110-6.1 as either detainable, detainable for a high likelihood of flight, or non-detainable. The December 2022 amendments among other things, altered the list. Just before the law went into effect on January 1 an Illinois Circuit Court judge ruled the law unconstitutional and the state’s supreme court issued a stay halting the law’s implementation.

New York: In 2019, New York made numerous and substantial changes to bail laws as provisions in the state’s annual budget bill. Several provisions were rolled back in 2020, reinstating some offenses as bail eligible. In 2022, the state’s legislature went back and further amended the 2019 efforts. The 2022 amendments give judges more discretion in deciding bail based on several factors, such as the defendant’s history of gun use, if the defendant is charged with causing serious harm, and if they have violated a restraining order. However, the legislature did not include a “dangerousness” standard in bail considerations.

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