Note: This is a developing area of law, and there is a lot we do not know about how the pretrial release process will work. If you have questions about how the new system applies to you, contact your public defender or talk to a lawyer. 

In July 2023, the Illinois Supreme Court declared the legislation ending cash bail constitutional. Beginning on September 18, 2023, Illinois courts no longer use a cash bail system. Instead, they use a “pretrial release” system as allowed by the SAFE-T Act. Learn more about this new system and what it means. 

What is pretrial release?

Pretrial release is an alternative to the traditional cash bail system. Under the pretrial release system, you may be released while you wait for your trial without needing to arrange for cash bail.

If you are arrested, you will have the opportunity to appear before a judge. The judge will then decide if you are eligible to go on pretrial release until your case is resolved. In some cases, police officers will issue you a citation instead of arresting you. If you get a citation, you will have to go to a court date and a judge will decide if you should stay released until your case is resolved. 

What does the SAFE-T Act mean for people in jail before it went into effect?

The SAFE-T Act does not require the immediate release for people accused of specific felonies and misdemeanors. However, people who are in jail can ask to have the new pretrial release system applied to their situation. To do this, the defendant must ask for a hearing. The hearings will be granted based on a tiered system: 

• Lowest level offense (example: petty shoplifting) hearings must be within 7 days of request.
• Those detained but considered flight risks would get hearings within 60 days.
• Those considered to be potential threats to safety get hearings within 90 days.

Judges will have the option to release individuals if they find that the defendants do not pose an active threat to the community or to another individual.

What does the SAFE-T Act mean for new criminal defendants?

If you are stopped by the police for a Class B misdemeanor, a Class C misdemeanor, or a petty and business offense you may get a citation instead of being arrested. This means that while you wait for your court date, you will not be in police custody or have the option to receive bail. However, the officer has the discretion to arrest you if they determine, either mistakenly or not, that you:

• Pose a threat to the community
• Pose a threat to another person
• Have a medical or mental health issue that poses a risk to their own safety

If you are stopped by police and issued a citation to appear at a hearing, you might be detained at that hearing. A judge can order that you be detained if they determine:

• That you pose a specific, real and present threat to a person, or 
• That you are likely to flee. 

This determination will vary based on the judge and county.

What crimes lead to a citation?

Class B misdemeanors, Class C misdemeanors, and petty and business offenses. Examples of the types of crimes that are likely to lead to a citation instead of arrest include: 

• Telephone harassment
• Aggravated speeding (31 mph over the posted speeding limit)
• Obstruction of service of process
• Littering
• Disorderly conduct
• Assault
• Failing to wear a seatbelt

What crimes lead to an arrest?

Police can still detain and arrest someone for committing a forcible felony.  Examples of forcible felonies include:

• First and second-degree murder
• Predatory criminal sexual assault of a child
• Aggravated criminal sexual assault and criminal sexual assault
• Robbery and burglary “where this is use of force against another person” 
• Residential burglary
• Home invasion 
• Vehicular invasion
• Offenses that require jail or prison time if charged, without probation
• Hate crimes
• Animal torture
• DUI causing great bodily harm

Is it true that someone who is trespassing will not be arrested?

This depends. The officer responding to a trespassing complaint can arrest the suspect if they find that:

• The suspect poses a threat to the community or any person, 
• The suspect has an obvious mental or medical issue that poses a risk to their safety, or
• The criminal activity continues even after the police issue a citation.

Otherwise, police officers are now required to only issue a citation, and not arrest or detain the suspect. However, if a person is cited for trespassing and continues to trespass, then they can be arrested. 

Before your pretrial release hearing

After being cited or arrested, you will go before a judge who will decide if you are eligible for pretrial release. A judge can deny pretrial release for forcible felonies. 

If you get a citation

If a police officer gives you a citation, you need to pay attention to your scheduled court day. Your court day will likely be within 21 days of getting the citation. It is very important that you show up on your scheduled court day to attend your hearing.

You will need to go to your pre-trial hearing in person. You will need to make arrangements so that you show up to your hearing in person. The court may make an exception for you to show up by video, but only if your physical health and safety would be in danger by showing up in person. Please plan to show up in person unless you get a health and safety exception from the court. 

Even if you are not arrested, you still have a right to be represented by a lawyer in the pretrial hearing. You can hire a lawyer or if you cannot afford a lawyer, a public defender can be appointed to you.

At your pretrial release hearing

At your hearing, the judge will determine whether you pose a specific threat on a case-by-case basis considering:

• The nature of the offense,
• Your age, physical condition, and history,
• The identity of the persons that were threatened, 
• What you said,
• Age and physical condition of victim or complaining witness,
• Whether you had access to a weapon or were on probation, and
• Any other factors the Court chooses to include.

The judge will also decide whether to grant you pretrial release. In some cases, part of your pretrial release conditions may include: 

• Electronic monitoring,
• GPS monitoring, or
• Home confinement

If the judge decides to have you under one of the monitoring conditions above, they will schedule hearings to reassess your situation. You must attend those hearings.

While you are out on pretrial release

If you are granted pretrial release, you need to make sure that you follow the conditions of your pretrial release. These conditions include following all civil no contact orders and no stalking no contact orders. Additionally, you need to:

• Go to court for all of you hearings
• Not commit any criminal offense

If you do not follow your pretrial conditions or if you miss a hearing, the judge may decide to take away your pretrial release and detain you at any time.

A judge could also decide to take away pretrial release from defendants who, while on pretrial release, pose a real and present threat to the safety of the victim of the alleged offense. Additionally, a judge can take away pretrial release from defendants charged with violating certain orders of protection and no-contact orders.

What if I break the conditions of the pretrial release?

If you break the conditions of the pretrial release, the judge can decide to place any of the following punishments:

• A verbal or written warning
• Jail time for up to 30 days
• A fine up to $200
• Issue of an arrest warrant or summons. A summons is an official notice to appear in court, while an arrest warrant tells police to arrest and detain. 

Additionally, the judge can change the conditions of your pretrial release.  

What protections are there for victims of a crime?

Crime victims, including victims of domestic violence or sexual assault, will be notified by the State’s Attorney’s office of the defendant’s initial pretrial hearing. Victims will also be informed of their opportunity at this hearing to get an order of protection. 

If the defendant is charged with any of the following, their pretrial release can be denied:

• Stalking or aggravated stalking
• Domestic battery or aggravated domestic battery
• Sex offense (excluding public indecency, adultery, fornication and bigamy)

However, before being actually charged, they will not be detained unless the responding officer believes they:

• Pose a threat to the community
• Pose a threat to another person
• Have a medical or mental health issue that poses a risk to their own safety