Cash Bail Ends in Illinois, How Will Things Change?

Illinois is now the first state to completely end cash bail. On September 18, the Pretrial Fairness Act went into effect across Illinois, drastically changing the way the state treats crime and incarceration in courtrooms, jails, and police stations.  

The Pretrial Fairness Act is a provision of the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act, an expansive criminal justice reform bill signed by Governor J.B. Pritzker in 2021. It was set to take effect on January 1, 2023, but opponents stalled its full implementation through numerous lawsuits which were consolidated into one case.

Eventually, this case went all the way to the Illinois Supreme Court. The Court began hearing arguments in March and upheld the constitutionality of the Pretrial Fairness Act in a ruling on July 18, determining that the state constitution “does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public.” Sixty-two days later, the state has now implemented the abolition of cash bail. 

The Pretrial Fairness Act says that rather than requiring people to pay money to leave jail while they await trial, judges can only detain people if they meet criteria that shows they pose a flight risk or are a danger to the community. Instead of assigning bail, a judge would complete several detention hearings to decide on these factors. They may then release the person while they await trial. Electronic monitoring, a method of tracking a person’s movements remotely, is also an option for individuals awaiting their court date. 

According to The Civic Federation, the Pretrial Fairness Act has now created “a system designed to detain people charged with more serious, violent crimes and to release people charged with non-violent, less serious crimes . . . . Detention eligibility will in many cases depend on the severity of the charge and individual circumstances of the case.”

The Pretrial Fairness Act has now created “a system designed to detain people charged with more serious, violent crimes and to release people charged with non-violent, less serious crimes.”

“In each case,” Harold J. Krent, a professor at Chicago-Kent College of Law, tells The Progressive in an email, “the prosecutor needs to persuade the judge that, based on the type of crime alleged, the surrounding circumstances, history of violence or flight, or collateral evidence of vengeance that continued incarceration is appropriate.”

Krent provides several examples: “For a murder that was gang related, the prosecutor can argue that the tensions between the gangs may place the arrestee in a situation (if released) in which violence is likely . . . . Or, for someone arrested for felony possession of narcotics, the prosecutor may have no reason to predict violence upon release if there was no prior whiff of violence . . . . For a different example, a prosecutor may argue that if someone arrested for kidnapping was heard swearing vengeance on the family of the alleged kidnap victim, that should be sufficient to keep the arrestee incarcerated.” 

Under the new law, police will mostly be expected to refrain from making arrests for lower-level misdemeanors such as trespassing (they would be given a ticket and a court date instead). However, officers may still arrest people if they are deemed a safety risk or under other circumstances (including the severity of the offense and whether the charged individual needs any immediate medical attention). 

Advocates for eliminating cash bail in Illinois have said the previous pretrial standards disproportionately incarcerated people who were “too poor to pay bond,” while those who could afford it were able to await trial outside of jail. Opponents maintained that eliminating cash bail was unconstitutional and took away judges’ ability to make decisions about pretrial conditions. 

The legal history of bail in the United States began in 1789. The Judiciary Act of 1789 explicitly granted Americans the right to bail for non-capital offenses. Two years later, the Eighth amendment to the U.S. Constitution was adopted. This amendment states “[e]xcessive bail shall not be required.”

In recent years, the amount judges set for bail has often not followed this rule. This has led to intense inequity in who awaits trial in jail based on wealth. Many courts are not required to—or simply choose not to—investigate whether an individual is financially able to pay bail, leading to people awaiting trial in jail who have not yet been convicted of a crime simply because they cannot afford to pay. 

“We shouldn’t have a system where the amount of money that you have is what determines whether or not you have your freedom,” Sarah Staudt, Advocacy Manager for the Prison Policy Initiative (formerly of Chicago Appleseed Center for Fair Courts), told WMAQ-TV Chicago. “We should have a system that treats everyone fairly.”

Key national bail reforms were enacted in 1966 and 1984. Together, these ensured that community safety and risk of failure to appear in court should be factored into bail decisions. The reforms created the possibility of release without bail for non-capital offenses if the defendant was first not deemed a flight risk, and second if the defendant was not deemed a safety risk to themselves or others. These national changes paved the way for Illinois to create a system framed around an assessment of public safety rather than money. 

The coalition of politicians and advocacy groups—which included the Illinois Legislative Black Caucus, the Coalition to End Money Bond, the Illinois Network for Pretrial Justice, and others—that had been organizing for years to achieve bail reform eventually realized that reform would not go far enough in implementing fair pretrial practices. 

Sharlyn Grace, Senior Policy advisor for the Cook County Public Defender’s Office, reasoned that simply demanding judges set bonds at affordable amounts is not enough because that was already required by law. “There was no enforcement and there was no accountability,” Grace said in an online Netroots Nation panel titled “How Illinois Ended Money Bail” on September 18. In addition to her role as Senior Policy Advisor, Grace is also a founding member and former executive director of the Chicago Community Bond Fund, a group that has been advocating for the end of money bail since 2015.

“We’re never going to be able to guarantee that judges use this tool responsibly,” Grace continued. “It’s a tool without any basis in research or evidence. It’s not helping people come back to court at higher rates. It’s punishing the loved ones of people who are accused, particularly mothers, grandmothers, loved ones. [So we thought,] let’s take that tool entirely away.” 

In late 2022, some opponents of the legislation asserted that it would lead to a rise in violent crimes. Viral TikToks referred to it as the “Purge Law,” drawing on a reference to the 2013 horror movie The Purge, which depicts a society that allows all crime to go unchecked for twelve hours once each year. Social media posts claimed that people arrested for serious crimes, including second-degree murder, “will be let out free,” even though this was widely debunked. As Block Club Chicago reporters Noah Asimow and Pascal Sabino emphasized, “The law does not mean judges cannot keep people in jail.”

Even if the image of Illinois being overrun by unpunished crime fades away, fear-fueled rhetoric will be difficult to prevent. “I don’t think the rhetoric of the Purge Act will have a long lasting effect,” Krent says in an email, “but I do fear that press over a violent act committed by someone released under the new Act will rally opposition to the new law, even if levels of violence overall are low.”

According to Don Stemen, professor and chairperson of Loyola University Chicago’s Department of Criminal Justice and Criminology, 85 percent of people imprisoned under the cash bail system already avoided pretrial detention by paying bail. The remaining 15 percent could theoretically have awaited trial out of jail, like their more wealthy counterparts, but did not have the money to buy their way out. 

Pretrial detention of as short as three days can lead to negative outcomes, according to research by scholar Christopher Lowenkamp. People can lose their jobs, resulting in an inability to pay rent and an increased chance of experiencing homelessness. Parents may have their children taken away from them. And the longer a person is detained pretrial, Lowenkamp found, the worse these outcomes will be. 

When detained, people can lose their jobs, resulting in an inability to pay rent and an increased chance of experiencing homelessness. Parents may have their children taken away from them. And the longer a person is detained pretrial, the worse these outcomes will be. 

Lowenkamp found that the longer low- and moderate-risk individuals were detained, the more likely they were to commit a crime both before their trial and in the two years following as compared to people held for twenty-four hours or less.

In short, those who cannot afford bail face negative consequences that those who can afford it do not—even if they are accused of committing the same crime. “Everything that sets them up to be safe, to be law-abiding, to be healthy and to be well, falls apart. And that is what the criminalization of poverty is,” said Insha Rahman, program director for the Vera Institute of Justice. 

Thea Sebastian, Director of Policy at Civil Rights Corps, an advocacy group working toward a just U.S. legal system, highlighted the connection between improving community safety and abolishing cash bail. “When you talk to folks on the ground and you talk to them about bail reform, or what they want to see in terms of changes from a legal system,” Sebastian tells The Progressive, “it will not take any more than one to two minutes [and] what they’re going to start talking about is community safety.” 

California and New Jersey have also experimented with doing away with cash bail, and results indicate that it has reduced the number of people in jail for crimes of which they have not been convicted. New Jersey saw a 19 percent decrease in the first five months of bail reform. While there was a slight increase in rearrests and defendants not showing up for their trials in the following years, officials say these are not statistically significant amounts. 

And in California, the state supreme court ruled in 2021 that it is unconstitutional to set bail at an amount a person cannot afford. In 2023, the Los Angeles Times reported that as of October 1, “virtually all defendants accused of misdemeanors or nonviolent felonies in L.A. County will either be cited and released or freed on certain terms and conditions after judicial review within twenty-four hours of arrest.”

In Illinois, Cook County (which includes the city of Chicago) reformed its system of cash bail in 2017 by lowering bail amounts. A 2020 study by Loyola University Chicago concluded that there was no statistically significant change in the amount of crime in Chicago after the reform was implemented.  

Although court personnel have had to adjust to the new processes, the Chicago Sun-Times reported that in Cook County, the first weeks without cash bail have gone without incident. 

“At the end of the day, safety is what we all want,” Sebastian says. “We all deserve to be safe in our homes and in our communities. And that’s what [bail reform] is about. It’s about how we get there. The current pretrial system that [the United States] has is making everybody less safe.”

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