Illinois Prepares for Historic Abolition of Cash Bail

“You see a massive impact on Black and brown communities,” Gatewood said. ​“When you look at the populations in jails, they are disproportionately Black.”

The bill’s Pretrial Fairness Act completely eliminates cash bail in Illinois in an effort to jail fewer people overall and create greater equity in pretrial detention. The bill also takes several other measures to ensure that people are not detained unnecessarily before trial, including limiting pretrial incarceration to people at high risk of flight or causing harm, regulating the use of risk assessment tools for pretrial incarceration, requiring police to give tickets for some low-level offenses instead of making arrests, and eliminating incarceration for misdemeanor arrests and technical violations like missing a court date.

Prosecutors and Victim Advocacy Groups

The Pretrial Fairness Act enjoys the support not only of policymakers and advocates but of some in law enforcement, including state’s attorneys across Illinois. 

Eric Rinehart, Lake County state’s attorney, said the law will protect both victims and communities.

“Deciding whether to detain somebody when they are presumed innocent is one of the most difficult questions the legal system must contend with,” Rinehart said. ​“The Pretrial Fairness Act provides a way of making sure that access to money is not the answer to the question of who should be detained. When we confine people who haven’t had their trial yet, we should do so only when they are a threat to safety.”

Rinehart explained that the law’s new regulations on detention will require both judges and prosecutors to be more deliberate in their decision-making about bail.

Victim advocacy groups have also been instrumental in designing and supporting implementation of the Pretrial Fairness Act. The law’s provisions make it possible for the court system to spend more dedicated time on higher-risk, higher-level cases like murder, sexual assault, and domestic violence, according to Madeleine Behr, policy manager at Chicago Alliance Against Sexual Exploitation (CAASE), a victim support organization helping to implement the new law. 

“We get to use resources working on the cases that need them the most,” Behr said. 

Research predicts that abolishing cash bail in Illinois will not only lead to better use of resources but also leave crime rates unchanged while saving large sums of money for poor defendants who pose no risk to public safety. 

A recent study that evaluated a 2017 bail reform law in Cook County found a significant increase in the number of defendants released on their own recognizance, no increase in associated crimes, and no change in defendants’ appearance rates. Meanwhile, it saved defendants and their families $31.4 million during the six months after the law was implemented.

“You can release a relatively large percentage of people pretrial without making them pay money, and it’s not going to affect public safety,” said Don Stemen, a criminology professor at Loyola University in Chicago, who co-authored the study with Loyola criminology professor David Olson.

‘It’s always helpful to have more time’

The Pretrial Fairness Act has benefitted from a two-year implementation period that gives counties, judges, and advocates time to understand and plan for the new criminal justice landscape. Illinois’s Supreme Court Pretrial Implementation Task Force is working with Arnold Ventures and a host of local organizations to guide the roll-out of the law in the state’s 102 counties.

The Coalition to End Money Bond, a group of advocates for the Pretrial Fairness Act, worked with a wide array of stakeholders — including judges, state’s attorneys, public defenders, law enforcement representatives, justice-involved people, and survivors of crime — to pilot an initial implementation in Cook County, eventually expanding to five other diverse locations of the state. The group is using the lessons learned from those pilot programs about necessary staffing, capacity, and protocols as they ramp up to statewide implementation. They are also holding town halls to gain community feedback and offer education on what the law entails in order to secure buy-in.

“It’s been really interesting to see folks at these implementation discussions who have not been invited in the past,” Gatewood said.

Stemen and Olson are also participating in the implementation process. At both the state and local levels, they are involved in committees devoted to planning detention hearing guidelines, court staffing, data collection, and law enforcement use of citations and summonses in place of arrests. 

At the county level, state’s attorneys like Rinehart are working to determine which defendants they will seek to detain under the new law, based on those defendants’ risk profiles. 

“I will seek detention in one hundred percent of murder and predatory sexual assault cases, for example,” Rinehart said, emphasizing the importance of community safety.

The new law also seeks to create a process that is more responsive to the needs of crime victims. CAASE, in particular, is working with criminal justice partners across the state to plan greater access to pretrial services, victim advocacy programs, and victim witness units. The two-year implementation process, Behr explained, has allowed victim advocates to work with community members and other stakeholders as they plan for a higher volume of cases.

“It’s always helpful to have more time in a huge court overhaul like this,” she said. ​“It gives court actors and law enforcement, who have been more skeptical of this law, time to understand how it’s going to work — and to cut through the rhetoric they’ve heard from lawmakers who are opposed to the bill.”

‘You See a Lot of Pushback’

That extra time, however, has also given skeptics of the law — including conservative policymakers and police leaders — time to mount campaigns that aim to repeal or roll it back amid a national spike in homicides.

Their efforts include a recently defeated bill that would have weakened the rights the Pretrial Fairness Act grants people on electronic monitoring and delayed the law’s data transparency requirements.

The lawmakers suggested that relaxing bail requirements leads to releasing people who compromise public safety.

“You see a lot of pushback where folks say that bail reform is the cause of rising crime rates in Illinois,” Gatewood said. ​“But that couldn’t be farther from the truth.”

Some state’s attorneys have even falsely claimed that the bill will prohibit them from detaining defendants charged with murder and other violent offenses.

“Critics of the bill have to stop saying the words ​‘violent offenders will be let out,’ because it’s simply not true,” Rinehart said. ​“It’s fear-mongering. There’s nothing in the act that says counties can’t hold violent offenders.”

Research shows that critics’ claims are unfounded.

Stemen pointed to the evidence. ​“We rely on the evaluations,” he said, ​“not just ours in Cook County, but evaluations in New Jersey and Philadelphia showing that reforms similar to the Pretrial Fairness Act have not led to an increase in crime.”

A report on New Jersey’s 2017 pretrial reform law, which was a model for the Pretrial Fairness Act, showed a draw-down in detention with no corresponding crime spikes. In Philadelphia, a study found that the city’s prosecutor-driven reduction in the use of cash bail for low-level offenses had no adverse effects on recidivism or appearance rates.

With bail reform supporters holding the line, Illinois is soon to join their ranks, a step toward greater fairness in pretrial practices.

“A system that doesn’t rely on access to cash to determine access to freedom is the way to promote a fairer and more just society,” Rinehart said. ​“And we’re going to be safer too.”