Illinois Is the First State in the US to End Cash Bail

The US and the Philippines are the only two countries in the world that use the bail bonds system to ensure defendants show up for trial. Nearly 70% of the US jail population is made up of pretrial detainees, meaning they haven't even had a trial. They just can't afford bail and haven't been released on their own recognizance. This amounts to punishment without a conviction.

This week, Illinois became the first state in the US to abolish the cash bail system.

Cash Bail System

Cash bail is a system where people accused of a crime and brought before a judge are ordered to pay a specific amount to remain free as they await trial. The bail is used as a guarantee that the accused will show up for court appearances. If they miss a court appointment, the funds will be forfeited.

There is often a recommended amount of bail associated with a crime, but judges have discretion to raise or lower the amount or waive bail entirely and release the defendant “on their own recognizance,” a promise to show up.

If a defendant can’t pay the full bail amount, they can try to use a private bail bond company. They pay anywhere from 10% to15% of the court-determined bail to the company and put up collateral, such as a car, house, or other valuable property for the remainder of the amount. If the defendant misses their court appearance, the bail bond company will collect the collateral to recoup the full amount.

If the defendant can’t afford to pay the bail bondsman? Then they stay in lockup, regardless of guilt or innocence.

Cash Bail is Punishment Without a Trial

Abolitionists and social justice advocates have stated for years that the current cash bail system punishes poor people. Rich folks can pay their way out of jail, while poor people remain behind bars – losing jobs, cars, homes, and relationships – because they don’t have the money to be free. Cash bail also disproportionately affects people of color, who tend receive higher bail amounts than white defendants - 35% higher for Black men and 19% higher for Hispanic men. (Just like Black and brown folks have higher conviction rates and receive longer sentences than white folks when convicted of the same crimes in the same places).

I’m sure you’ve heard of Kalief Browder, a 16-year-old who was arrested, accused of stealing a backpack. His family couldn’t afford the original $3,000 bail and he was held in Rikers for three years awaiting trial. He was abused, beaten by officers and inmates, and spent hundreds of hours in solitary confinement. He never got his day in court because his accuser left the country and refused to testify. Browder was released and two years later completed suicide.

Pretrial Lockup Increases the Risk of Conviction

The Vera Institute of Justice released a study in 2019 that showed that “pretrial detention has far-reaching negative consequences,” such as:

• decreasing the likelihood defendants will appear for trial. Even spending just a few days in jail decreased the likelihood of someone showing up for trial. Longer stays in pretrial detention decreased the likelihood of the defendant to show up even for low level offenses. I guess after spending time in jail, folks don’t want to go back and will risk staying free with a warrant.
• people who are detained are more likely to be convicted and receive harsher sentences because they miss dismissal, diversion, and plea bargaining opportunities they would receive during pretrial release
• even short periods of detention increase the likelihood of becoming involved in the criminal justice system in the future. I think once you are in the system, you are seen as a criminal, whether you are innocent or not.

Who Benefits?

First of all, our system is supposed to be innocent until proven guilty. But the way we operate is to lock poor people up for days, months, even years before we ever give them a trial to prove their innocence. Releasing people without the burden of bail allows them to continue to work and pay their bills, continue to support and stay connected with family, basically maintain their connections with community and humanity. Locking people up for low-level crimes before they have a trial should be a crime.

But who benefits from locking folks up? For-profit prisons. They need bodies behind bars to get paid. Bail bond companies. They need people to pay and leverage collateral in order for them to exist. Both prisons and bail bonds companies lobby to keep cash bail and other systems that are detrimental to individuals and families without providing protections or safety for the community. In 2020, Reuters reported on the major bail bonds companies that lobbied to oppose ending for-profit bail in California.  These companies earn hundreds of millions of dollars a year from people accused of a crime and spend millions to keep it that way.

Law enforcement is another group who lobbies hard to keep the cash bail system, claiming that when an arrestee is let out without paying bail, they will commit another crime. Evidence does not support that claim. They claim ending cash bail is an attack on the justice system.  And I guess it is an attack on the status quo.

Ending Cash Bail Does Not Increase Crime

According to studies in cities like Philadelphia and New York and the state of Illinois, where they have instituted alternatives to cash bail, court appearance outcomes are about the same (around 90%) and crime statistics have not increased. Most people want their court cases over with, so they show up. In one study in Cook County, IL defendants were able to keep $31.5 million over just 6 months after a judge suspended cash bail for most felonies, except the most serious cases.

While there are many positive overall outcomes for ending or reforming cash bail, one thing I noticed in this comprehensive study from Harvard’s John F. Kennedy School of Government file:///C:/Users/sacil/Downloads/RWP21-033_Smith.pdf that doesn’t often get highlighted is that racial disparities often increase where there is more judicial discretion. White people get released. A lot of Black and brown people still get bond or remanded. This is why I support ending, not just reforming cash bail. Release everyone accused of minor non-violent offenses and review other offenses carefully to decide to release or remand. Black and brown people will probably still get remanded more often, but more will also be released if cash bail is eliminated altogether.

Illinois Eliminates Cash Bail

The state of Illinois tried to eliminate cash bail about two years ago but it didn’t go into effect due to legal challenges. The Pretrial Fairness Act went into effect Monday, September 18, abolishing cash bail as a condition of pretrial release. Judges can still remand people accused of serious crimes, but they will have to go through a more rigorous review process for each case.

Some people shared their experiences with the bail system, talking about how being locked up pretrial automatically stigmatizes people who haven’t been convicted and noticing how other people received more lenient outcomes even with more serious crimes.

Folks behind bars now because they couldn’t afford their cash bond can petition the court to decide if they pose a danger to society or if they can be released.

Police are being asked to issue notices to appear in court rather than arrest folks for misdemeanor charges.

Several outlets are talking about how even though New Jersey hasn’t eliminated cash bail, the reforms they’ve implemented that release more defendants pretrial are working. And crime hasn’t increased, and people are showing up for court.

As with any new system, it will take time to work out the bugs. What used to take a few minutes to set a price on someone’s freedom, now takes longer to determine if someone should be released or remanded. Some counties didn’t hold hearings at all on Monday and at least one acted as if the new law hadn’t gone into effect.

Some cash bail opponents are worried about judges increasing the use of electronic monitoring/ankle monitors in lieu of bail. My biggest concern with releasing everyone is that domestic violence charges are misdemeanors. I don’t know that folks accused of domestic violence ever had large bonds to begin with. It seems like it has always been easy for batterers to get out quickly, so I don’t know that it makes that much difference overall.

I’m hoping that as more cities and states look to reduce and eliminate cash bail that someone is paying attention to race disparities and coming up with ways to ensure that all nonviolent defendants have a chance to go home and live their lives as they await trial.