How to Bail Out of Jail in Illinois

Chicago Bail Lawyers at Mitchell S. Sexner & Associates LLC Explain Posting Bail

your right to bailWhat if you (or someone you care about) have been arrested for an alleged criminal offense and have been taken to the police station for processing and charging? Whether you are permitted to leave the police station, whether you are held overnight for a bail hearing before a Judge, and whether you will be allowed a release upon bail (pending a trial or other disposition of the charges) depends upon a number of factors, all set out in the Illinois Code of Criminal Procedure, Chapter 725, Illinois Compiled Statutes, Section 5/110-1 et. seq.

Whenever a person has been charged with a crime, whether it’s for a misdemeanor, felony or traffic offense, the defendant is always required to appear in court at a later date in front of a judge. When the police release you from custody, you must make a promise to show up in court. This promise is called a Bail Bond. It’s a piece of paper that describes your obligations to the court like your promise to stay out of trouble, show up on time for your court dates, not to leave the jurisdiction, and sometimes it includes other language requiring you to stay away from the victim or to report to a court officer before your court date. Bail bonds vary from county to county and may include many different requirements.

Release from the Police Station

You may be released directly from the police station after you have been processed when charged with any Traffic Code violation, Wildlife Code violation, other Ordinance Violation, and most misdemeanor offenses. You may also be released in any case where you have been arrested upon a previously issued warrant, after posting the required monetary funds to secure release at the station. The officer can then immediately release you from custody by posting cash in the amount of $100, $200 or more. (Peace officers are designated individuals authorized to accept bail security, or to release an arrestee on bail, as are Clerks of the Court).

Misdemeanor offenses not authorized for station release involve offenses against family or household members as defined in the Domestic Violence statutes, such as Domestic Battery, or a Violation of an Order of Protection. As in all felony arrests, these arrests require you to be brought before a Judge for a bail hearing. At that hearing, a Judge will determine what amount, if any, is to be set, and what conditions above and beyond the statutory conditions may be required.

As long as you are able to post the dollar amount (until 1/1/2023 – see new Bail Bond Reform Act below) then you’ll be released from custody. If you can’t post the bail, then you have to stay in jail. When you hire our offices though, we can ask the judge to lower your bond and try to get you released from custody. You can contact Mitchell S. Sexner & Associates LLC any time of day at (312) 644-0444.

Personal Recognizance Bond (I Bond)

Depending on the nature of the charge and your past criminal history, sometimes the police officer is able to release you from custody without requiring you to post any amount of cash bail at all. Section 110-2 states that you may be released from custody “upon your own recognizance” if the court is “of the opinion” that: 1) you will show up to court as required before or after a conviction, 2) you do not pose a danger to the safety of the community or to other individuals, and 3) you will comply with all of the conditions of bail, including giving your current address to the Clerk of the Court on the bond slip, as well as immediately notifying the Clerk’s office of any changes. In Illinois, a recognizance bond is commonly referred to as an “I Bond”, a personal recognizance bond or “signature bond”. You will not be required to post any money or other security, as your signature on the bond slip is your security.

Violation of Personal Recognizance Bond

With a personal recognizance bond, although no money is actually posted, there will still be a designated monetary amount on the bond slip, which becomes relevant only if you fail to appear in court as required. Upon your failure to appear, if no reasonable explanation is provided to the court explaining your absence, the court may enter an order “forfeiting” your bond. If you then fail to appear within 30 days, or at the next scheduled court date if it is after 30 days, the court may then enter a judgment of bond forfeiture, for the full dollar amount designated on your bond slip. For example, if you were released on a felony retail theft case upon a $10,000.00 I Bond, a judgment of $10,000.00 would be entered against you if you failed to appear, and it could be subject to collection by the Clerk’s office. Section 110-2 does caution however, that the rules of bail are to be “liberally construed” to allow for criminal contempt of court proceedings in the event of a violation of bail bond as the preferred method of enforcing bail violations rather than a monetary loss.

Almost Everyone Entitled to a Reasonable Bail Amount

Of course, not everyone is entitled to be released upon their own recognizance. Some defendants and some particular charges require the posting of security to reasonably assure compliance with the conditions of bail, and some cases may require the total denial of any bail, period. For a judge to require bail security, Section 110-2 requires that the judge first find that no other conditions may reasonably assure that the accused will appear in court as required, that the defendant does not pose a risk of harm to the community or other individuals, and that the defendant will comply with the rules and conditions of bail set forth by statute or by order of court.

reasonable bail

Section 110-4 provides that all persons are “bailable” before a conviction except these offenses where the proof is evident, or the presumption great that the defendant is guilty of the offense:

  • Capitol Offenses (punishable by death);
  • Offenses for which a sentence of life imprisonment may be imposed;
  • Felonies with mandatory prison without the possibility of probation, etc. where, after a hearing, the court determines that the release of the accused would pose a real and present threat to others;
  • Unlawful Use of a Weapon under section 24-1(a)(4), involving carrying a firearm on one’s person or in an automobile at, in, on, or within 1000 feet of a school, where after a hearing, the court finds the real and present threat, and the necessity of a no bail order to prevent carrying out that threat;
  • Stalking/Aggravated Stalking, where after a hearing, the court rules that the defendant is a real and present threat to the alleged victim and the denial of bail is necessary to prevent “fulfillment of that threat”;
  • Making/Attempting to make a Terrorist Threat, again after a court finds that there is a real and present threat, and to prevent the threat from coming to fruition, then denial of bail is allowed and necessary.

In the absence of any of these statutory bars to pretrial release, the court must set a reasonable bail to allow for the defendant to remain free pending the outcome of his case (other than the restrictions placed upon him as conditions of bail). It is the burden of the State to prove any alleged necessity to deny bail.

What a Judge Must Consider When Setting Bail

Section 110-5 has a very long laundry list of factors a court may consider when determining what amount of bail, if any, to set. Among these factors are:

  • the nature and circumstances of the offense,
  • whether there was the use or threat of force involved,
  • whether corruption of public officials was involved,
  • whether the threat of harm to public officials, judges, prosecutors, jurors, witnesses, senior citizens or children was involved,
  • whether the use or possession of a firearm, machine gun, bomb or other serious weaponry was involved,
  • whether it was gang-related,
  • whether it was a “hate crime”,
  • the victim’s condition/concern about future contact with defendant if released,
  • the likelihood greater charges will be filed later,
  • the likelihood of a conviction and the possible punishment,
  • the weight of the evidence,
  • defendant’s possible motive to flee the jurisdiction,
  • defendant’s ties to the community, employment, character, mental condition, financial resources, past criminal history, prior use of alias names or dates of birth,
  • If a foreign national, whether there is an extradition treaty in place with his or her home country.

There are no guidelines as to what factors may weigh more heavily than others, as a bail hearing is truly a case-by-case proposition. There are approximately 600 judges in Cook County, Illinois alone and it has often been said by criminal practitioners that one could get a different bail amount, with different conditions, from each and every one of them.

The Presumption of Innocence

By this time, you are probably wondering about what happened to “The Presumption of Innocence,” when a judge is making such a hasty decision about the likelihood of a conviction when considering bail. You may be asking, how does a judge deny someone bail, or set a very high bail, based upon mere allegations? The answer, of course, is that without the Presumption of Innocence, and the Constitutional Right under the 8th Amendment to the U.S. Constitution prohibiting excessive or prohibitive bail, there would be no bail at all, and anyone charged criminally would be held in custody pending the outcome. To give effect to the presumption, Illinois law specifically states that the amount of bail, if any, shall be:

  • sufficient to assure (not guarantee) compliance with the conditions of bail;
  • not oppressive;
  • considerate of the financial ability of the accused

In drug cases, the court shall consider the “street value” of the illicit drugs, based upon evidence, or a proffer of evidence, presented by the State at the bail hearing. Whatever amount or conditions are initially ordered, those amounts or conditions may be modified at any stage of the proceedings upon the court’s own motion, or upon due notice by either the State or the Defendant, following a hearing.

The Posting of Bail Money or Security (prior to 1/1/2023)

Once bail has been set, the next step is for the accused, or someone acting on his behalf, to post the required security, either with the Clerk of the Court, or directly at the jail. The person for whom the bail is set must execute the bond slip in order to be released and post an amount that is 10 percent of the bail ordered. The bond slip that follows is known as a “D Bond”. If someone other than the accused is posting the bail as a “surety,” an extra space is provided on the form for that person to execute their signature, and for the accused to acknowledge someone other than himself posted the security. The bond slip contains admonishments that tell all concerned that the bail money may be forfeited upon failure to appear as required, or that the proceeds may be used to satisfy attorney fees, court fines, costs or fees, restitution to a victim, etc. The Clerk’s office will retain 10 percent of the amount of security posted as their processing fee, although in counties of 3,000,000 or more (Cook County), the Clerk may only retain up to $100.00. In Class X felony drug cases, in Terrorist Threat cases, and a few other circumstances, a judge may order that 100 percent of the bail be posted as security. The result will be the issuance of what is known as a “C Bond”, and 100 percent of the proceeds on those bonds belong to the accused, or his surety, except to the extent that money may be taken out for attorney fees, fines, court costs and fees, restitution, etc.

Who Can Post Bail?

As for individuals other than an accused that are able to post security, the only restriction is in Section 110-13. This prohibits any Attorney at Law practicing in Illinois, or any official authorized to admit another to bail (judge or peace officer) or to accept bail (clerk or peace officer), from providing any portion of funds or security to obtain one’s release, or to act as a surety in any way. Other than that, anyone may post security for a defendant to secure his release pending the outcome of a case, whether family or friend. As for the types of security that may be posted, cash is always accepted. If cash is not desirable, one can post the amount in the form of a Cashier’s Check or Certified Check. If no liquid funds are available, one can also post the value of the bail in the form of stocks, bonds, or real estate, subject to certain procedural rules. If posting real estate, the property must be located in Illinois, and there must be unencumbered equity in the property that meets or exceeds the amount of bail. Obviously, the posting of monetary security is far better than trying to negotiate stocks, bonds, or real estate, as the only procedure you need to follow is properly counting up the money.

No Weapons While on Bail

One of the most important conditions of bail is the ban on of the possession of firearms while on bail. Anyone who knowingly violates that condition by knowingly possessing a firearm in violation of bail can be charged with a class 4 felony on the first such offense, and a class 3 felony for any after that.

no weapons on bail

Violation of Bail Bond

But what happens if you forget your court date or just don’t show up? Well, obviously the judge will not be pleased and he or she will likely do one of two different things. He or she might just continue your case to another date and have the clerk send you a postcard in the mail informing you of such. However, depending on the nature of the crime and your criminal history, the judge is probably more likely to issue a warrant for your arrest. This is called a bail bond violation when the judge decides that you have violated the terms of your bail bond, whether it’s because you were arrested for a new offense of whether it’s because you failed to appear in court.

Forfeiture of Bail Bond

When a judge issues a new warrant for your arrest, it’s very likely that the new bail bond amount will be more than the original amount that you posted, and sometimes it may be double, triple or more. The clerk probably won’t send you a postcard about this. If you fail to appear in court on any felony charge, you can expect that the Judge will issue a warrant with no bail, so that if you are arrested on the warrant, you will be brought directly before the Judge that issued the warrant at the very first opportunity. If you fail to appear in court within thirty days after you forfeited your bond, then you won’t likely be released on bail again, unless the Judge rules that your failure to appear was not meant to avoid prosecution or to obstruct justice. If you are in this situation, then you need a skilled defense attorney like those at Mitchell S. Sexner & Associates LLC that knows the law and can help you stay out of custody while your case moves toward resolution.

A Violation of Bond is a Criminal Offense

In addition to the forfeiture of your original posted cash bail, and the entry of a civil judgement in the full amount of the bail (for example, if you posted $100, a $1,000 judgement is entered), if you fail to appear in court on any criminal charge within the 30 days after the forfeiture, you can be charged with the offense of Violation of Bail Bond. If you were originally released on a felony, then it is charged as the next lower class felony, and if you were originally released on a class 4 felony, then it is charged as a class A misdemeanor. If you were originally released on a misdemeanor, then it is the next lower class, but not less than a class C.

Also, if you were released on a charge involving a family or household member as the alleged victim, and you violate any of the conditions of bail, then the Violation of Bail Bond charge is a class A misdemeanor. If a new criminal offense is charged where the victim is a family or household member, before you can be released on bail on the new case, you must be brought in custody before the court on the original case before you can be released on bail again.

2021 Bail Bond Reform Act

A package of criminal justice reforms known as the SAFE-T Act was signed in 2021. The Act overhauled several important aspects of the Illinois criminal law system, which covers not only the Chicago area, but the entire state. As part of this criminal justice reform legislation, there will be significant changes made to the bail bond system.

The biggest change will be that the Illinois justice reform package amended the Code of Criminal Procedure of 1963 to eliminate the requirement for the posting of monetary bail (meaning the posting of cash money). Accordingly, the terms “bail” and “conditions of bail” will be replaced with the terms “pretrial release” and “conditions of pretrial” release. It will also remove statutory language for the payment of sheriffs’ fees related to the taking of special bail and fees for using credit or debit card payment of bail fees. Those changes will take effect on January 1, 2023.

Certain traffic offenses will also be treated differently. Police will be required to issue a ticket instead of a formal arrest on class B and C misdemeanor traffic cases, petty, and business traffic offenses. The requirement to issue a citation instead of an arrest only applies however, if the person is not deemed to be a threat to the community, another person, or does not have a medical or mental health issue that poses a risk to their safety. The law change also requires a court date within 21 days of receiving such a ticket.

Elimination of Monetary Bail

The elimination of posting monetary bail is very significant not only in Chicago, but across Illinois. The Act creates a presumption that the defendant is entitled to release on personal recognizance. In other words, no longer is a defendant in custody assumed to require the posting of money in order to get out of jail. To the contrary, defendants are now assumed to qualify to be released on nothing else other than their promise and their signature on a bond slip. Additional conditions of release can still be set under the new law, but only when there is a determination that these additional conditions are necessary to ensure that the defendant appears in court, doesn’t commit any criminal offenses, or complies with all conditions of pretrial release.

Conditions of Pretrial Release

An example of such an additional condition would be the imposition of electronic monitoring (EM) or GPS monitoring. Under the new law, EM, GPS monitoring, or home confinement can only be imposed as a condition of pretrial release when there exists no less restrictive condition or combination of conditions which would “reasonably ensure” the defendant’s appearance or protect a specific person or persons from “imminent threat of serious physical harm.”

If the court imposes EM, GPS monitoring, or home confinement, the judge must state the basis on the record (as to why they have decided to impose these additional requirements). If any of such conditions are imposed, the court must then also re-assess the situation every 60 days to determine whether there exists a less restrictive condition or combination of conditions that would reasonably ensure the defendant’s appearance or protect a specific person or persons from an imminent threat. If the court finds that there is a less restrictive condition or combination of conditions, the court must then remove or change the relevant restrictive condition(s).

release from jail

When Can Pretrial Release be Denied?

The Act only allows for detention (which means keeping the defendant in custody or jail) in limited circumstances. Pretrial release (which means letting the defendant out of jail/custody while their case is pending in court) can only be denied if a person has been charged with a specific enumerated crime or has a “high likelihood of willful flight.” A special hearing would then need to occur in order to deny pretrial release. Willful flight is defined as “means planning or attempting to intentionally evade prosecution by concealing oneself.” The Act specifies that just because a person has simply failed to appear in court in the past isn’t proof by itself that they intend to evade prosecution in the future.

The list of crimes that could be used to deny pretrial release are:

  • A forcible felony where imprisonment is required upon conviction. In addition to being charged with the crime, the State bears the burden of showing that the defendant poses “a specific, real and present threat to any person or the community.”
  • Stalking or aggravated stalking. The defendant must be a real and present threat to the victim.
  • Domestic crimes where the defendant violated an order of protection, had previously been convicted of a violation of an order of protection, or other violent crimes involving a family or household member. The defendant must pose a real or present threat to any such person(s).
  • Domestic battery or aggravated domestic battery where the defendant poses a real or present threat to any such person(s)
  • Sex crimes (excluding public indecency, adultery, fornication, and bigamy) where the defendant is a real or present threat to any such person(s)
  • Certain gun, sex, or crimes involving the trafficking of persons, where the defendant poses a real or present threat to the safety of an identifiable person(s)

When Can Pretrial Release be Revoked?

Pretrial release can be revoked only in certain circumstances. It can be revoked when the defendant is charged with a felony or class A misdemeanor. The State would then have to file a verified petition. The court can only revoke the pretrial release if it determines that there is “clear and convincing evidence” that no condition or combination of conditions would reasonably ensure the defendant’s appearance or prevent the defendant from being charged with a felony or class A misdemeanor. The court can also choose instead to modify the conditions of pretrial release rather than revoking the pretrial release.

Sanctions can be imposed for violating the conditions of pretrial release as well. In order to impose such sanctions, the State’s Attorney or prosecutor must request a hearing for sanctions after a defendant failed to appear or is arrested for a crime other than a felony or Class A misdemeanor. The court must then find by clear and convincing evidence that the defendant violated a condition, had actual knowledge that their actions would constitute a violation, and the violation was willful and was not due to lack of access to financial monetary resources (meaning that they don’t have enough money). Sanctions could include a verbal or written warning, imprisonment for up to 30 days in the county jail, a fine of up to $200, or a modification of the defendant’s pretrial conditions.

New Oversight Board Created

The Act also requires that the Administrative Director of the Administrative Office of the Illinois Courts (AOIC) creates a new oversight board, the Pretrial Practices Data Oversight Board, to oversee the collection and analysis of pretrial practices in circuit courts. The Oversight Board is tasked with:

  • Identifying existing pretrial data collection processes
  • Gather and maintain records of pretrial data from circuit clerks’ offices, sheriff’s departments, law enforcement agencies, jails, pretrial departments, probation departments, State’s Attorneys’ offices, Public Defenders’ Offices, and any other criminal justice system agencies
  • Identifying the resources necessary to collect and report data
  • Develop a plan to collect pretrial data no later than one year after the effective date of the law

The Administrative Office of the Illinois Courts will collect pretrial data on:

  • All persons arrested and charged with a misdemeanor or felony, including persons released directly from law enforcement custody
  • Outcomes of pretrial conditions and detention hearings in county courts. This includes the number of hearings held, the number of defendants detained, the number of defendants released, and the number of defendants released with electronic monitoring
  • The number of defendants detained in county jail pretrial. This includes the number of persons detained in county jail pretrial and the number detained for other reasons. It also includes information regarding the demographics of the detained pretrial population, the charges which they were detained for, and the average period they were detained.
  • Information on defendants placed on EM. This includes the charges they were detained for, average length on EM, and the demographics of the defendants.
  • Discharge data. Discharge data encompasses the number of defendants sentenced to the Illinois Department of Corrections (IDOC), “the number released after being sentenced to time served,” the number released on probation, conditional discharge, other community supervision, the number found not guilty, the number of cases dismissed, the number of cases dismissed due to a diversion program or deferred prosecution program, and the number released after a hearing held to re-examine their pretrial detention status.
  • Pretrial release rearrest data
  • Pretrial failure to appear data
  • Information on the pretrial risk assessment tools used in each jurisdiction, and comparisons between the tool’s risk assessment score versus the judge’s decision. Pretrial risk assessment tools assign scores for how likely someone is to comply with the conditions of bond.
  • Any other significant information

When Will a Warrant be Issued for a Failure to Comply?

The Act also established an alternative to issuing a warrant for failure to comply with a pretrial release condition. Instead of issuing a warrant, a court may issue an order to show cause for why the defendant’s pretrial release shouldn’t be revoked or the defendant shouldn’t be sanctioned. A hearing would be held on the issue. A certified copy of the order must be served upon the defendant at least 48 hours in advance of the hearing. If the defendant doesn’t appear at the hearing to show cause, the court could issue an arrest warrant. The warrant could modify any previously imposed conditions rather than revoking pretrial release or issuing a warrant. If an order to show cause was issued, a failure to appear can’t be recorded unless the defendant failed to appear for the hearing. A non-appearance in court could be cured at the hearing. If the non-appearance was cured, it couldn’t then be used as evidence of being a future flight risk.

Experienced Bail Bond Attorneys

The Chicago bail /pretrial release lawyers at Mitchell S. Sexner & Associates LLC are hard-working, knowledgeable, and aggressive. We provide quality legal services to our clients and are ready to do the same for you. If someone you care about has been taken into custody on a criminal charge and the bail has been set too high, a Judge assigned to the case can always review (reconsider) the amount of bail if a written motion is filed.

When you hire a Chicago criminal defense lawyer at Mitchell S. Sexner & Associates LLC, we can file the written motion needed to make that request. Then we’ll do our best to get your bail amount lowered and work to get you released from custody so that you can better assist us in presenting your defense in court. We’re here for you 24 hours a day, seven days a week. So call us anytime at (312) 644-0444 and let us explain how we can help you today in the confidential surroundings of our Arlington Heights office, Chicago office, or at another location near you. Call today.

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Written by Mitchell S. Sexner Last Updated : October 7, 2021