For the second year in a row, Peoria City Council is set to vote on a proposal to request that Illinois legislators amend the Pretrial Fairness Act to require mandatory pretrial jailing for people accused of certain offenses. The Illinois Network for Pretrial Justice condemns this disturbing proposal, which ignores people’s most basic rights and is blatantly unconstitutional.

The Fifth Amendment to the U.S. Constitution says that “[n]o person shall be . . . deprived of life, liberty, or property without due process of law.” That right is essential to a functioning civic society. Every person arrested on a criminal charge is presumed innocent. Separating someone from their family, from their job, and from their community not only without proving that they are guilty but without even a hearing to consider whether they pose any risk of danger or flight amounts to punishment without a trial. That is cruel, undemocratic, and an abomination to the fundamental principles that are supposed to be the foundation of our criminal court system. The U.S. and Illinois constitutions simply do not allow infliction of punishment absent even a hearing.

That is why, nearly 40 years ago, the Supreme Court ruled that holding someone without bail deprives them of bodily “liberty.” See United States v. Salerno, 481 U. S. 739, 748–751 (1987). As a result, the Due Process Clause requires, at minimum, eligibility for bail, which can only be denied after a hearing. See Salerno, 481 U.S.a t 741-51; Schilb v. Kuebel, 404 U. S. 357, 365 (1971); Stack v. Boyle, 342 U. S. 1, 4 (1951). It’s important to note that “bail” in this context simply means the possibility of release awaiting trial, and the Illinois Supreme Court in Rowe v. Raoul (2023 IL 129248) concluded that the pretrial release and detention mechanisms in the Pretrial Fairness Act comport with the Illinois Constitution’s right to bail “by sufficient sureties.” 

Decades of precedent from both the U.S. and Illinois supreme courts make clear that the Peoria City Council’s proposal is unconstitutional. Rather than an earnest attempt to engage in policy debates, this proposal is a cynical attempt to score political points at great risk to the Council’s own constituents and people who are presumed innocent across the state. Public safety is best served by keeping everyone who can be safely home with their families in the community awaiting trial, where they can work, parent, and maintain positive social connections. The City Council should stop its performative posturing immediately.