Unless a judge steps in, Illinois is poised to become the first state to completely eliminate cash bail, expanding an approach that has seen some success across the country even as it’s been vilified here.
In a barrage of attack ads before last month’s elections, the Pretrial Fairness Act was derided as a “purge law” that would unleash violent criminals upon the public.
But advocates have argued the law will impose long-needed equality in the criminal justice system and will actually make the public safer.
Other states, red and blue, have tried limited versions of what Illinois is about to do. That has made it difficult to know exactly what to expect.
As researchers at Harvard University’s Kennedy School of Government found, “There are so many different approaches to bail reform and because few jurisdictions rigorously evaluate the bail reforms they have implemented, there is not a clear blueprint for what works.”
But, they added, “It is notable that none of the studies we analyzed for this report found that bail reforms led to a meaningful increase in crime.”
Why reform bail?
Advocates for bail reform say the criminal justice system is inherently unfair when people with money can get out of jail, even if facing serious charges, while poorer people can end up spending months behind bars for minor crimes.
Under the law, judges will hold detention hearings where prosecutors and defense lawyers argue whether a person poses too much danger to the public to be released or is considered a flight risk.
No one will have to put up money to get out, resolving a basic inequality that has come with considerable social cost, argues Insha Rahman with the Vera Institute of Justice.
“People do better when they are connected to their family [and] they are employed,” Rahman said. “Jail interrupts all of that … and has incredibly negative consequences.”
The longer a person is held in jail, the more likely they are to lose their job or home or connection to family and community. People behind bars are also likely to agree to higher sentences in a plea agreement than people out of jail.
“Being incarcerated means prosecutors have a lot of leverage to seek plea deals,” Rahman said. It also makes it more difficult for attorneys to meet with clients and discuss cases.
More than a third of the people incarcerated in the United States are being held in county or city jails awaiting trials, according to the Prison Policy Initiative. In Illinois, the number of people booked into a jail each year has been rising for decades. In 2019, more than 173,000 people were booked in a jail in the state, the group’s data shows.
“Jurisdictions across the country spend millions and millions, if not billions, of dollars incarcerating people pretrial for no public safety benefit,” Rahman notes.
The savings could be used to target crime in other ways, like more drug treatment programs, more affordable housing and other social services, Rahman said.
Across the country, a growing number of jurisdictions are reevaluating the use of cash bail. As in Illinois, the efforts have met with resistance. There have been problems along the way, but there have been notable successes.
The nation’s capital is often cited as a leading example of the success of bail reform.
Since 1992, the court system in Washington, D.C., has operated under a mandate to limit pretrial detention by emphasizing the release of people under the least restrictive conditions that still ensure they see their cases through and don’t commit new crimes.
While cash bail is not completely prohibited, it has not been the status quo there for three decades. It can only be imposed for those deemed at risk of fleeing the jurisdiction and cannot exceed a person’s ability to pay.
In a report examining the last five years of data, the district’s Pretrial Services Agency found that 83% of people were released to the community at their first court appearance. Most of them were released with certain conditions, like electronic monitoring or supervision by the courts.
Of the remaining 17%, more than half were released after subsequent hearings to determine special conditions and only 7% remained behind bars.
Those who are released can be connected to mental health services and substance abuse treatment if their case warrants it.
The approach appears to be working.
In the five-year analysis, 88% of defendants were not arrested for another crime. Of those who were, less than 2% were alleged to have committed a violent crime.
The appearance rate for defendants has remained similarly high, with 89% of defendants showing up for court.
In New Jersey, court officials have reported similar results after the state passed a slew of criminal justice reforms in 2017 under Republican Gov. Chris Christie, including the near elimination of cash bail.
In 2021, only 23 people were required to post money to be released and only because most of them were accused of violating the initial conditions of their release, according to a report to the legislature.
While many more people were being released from jail, the rate of people appearing at their subsequent court hearings rose to 97% in 2020. The report noted part of the increase could be attributed to the expanded use of phone and video hearings during the pandemic.
Since the reforms passed, New Jersey has not seen a rise in the rate of people charged with new crimes while out on pretrial release. The state did see a spike in 2020, when the rate of defendants charged with felonies increased about 7%. But at the same time, there was a decrease in new lower-level offenses.
“The reality is that there is no magic crystal ball. … These systems are in place to do their best,” said Emily Schwartz, a former public defender who now works at the New Jersey Institute for Social Justice.
“Public safety and crime is an issue everyone is concerned with, understandably so,” Schwartz said. “I think unfortunately people are creating linkages (between bail reform and crime) that don’t necessarily exist.”
Less than 1% of defendants arrested in 2020 and released picked up new charges for violent crimes, or offenses that carry the state’s strictest sentences, the state’s data shows.
In an editorial last year, the New Jersey Law Journal declared the state’s reforms “a very significant success” that had a positive effect on lower-income people while not significantly increasing recidivism.
The Journal noted that the number of people denied release for serious crimes had also increased, declaring it “welcome news to those favoring preventative detention.”
Not all states that have implemented reforms have stuck with them.
In the early 2010s, Alaska had a problem: The number of people it was jailing was expected to grow faster than the state could keep up with housing for them. And falling oil prices were leading to severe budget cuts.
With bipartisan support, the state passed significant criminal justice reforms that went into effect in 2016, including curtailing the use of cash bail. Senate Bill 91 established a Pretrial Enforcement Division to provide risk assessments of defendants and restricted a judge’s ability to set bail in cases where a defendant’s risk score was low.
A report from the Alaska Judicial Council found that, in the year the reforms were enacted, 75% of defendants were released before trial compared to 48% the previous year with “no difference in the number of rearrests before and after reform.”
But an increase in property crimes, including vehicle thefts, fueled a public uproar over the law, which came to be called “catch and release,” according to Ben Muse, a former public defender in Anchorage.
Six months later, the law was amended to give judges more discretion over bail decisions. The state “essentially went back to the old bail statute,” said Susanne DiPietro, director of the Alaska Judicial Council.
Muse believes the reasons for the increase in certain crimes was more complex than people getting out of jail without paying cash bail, including a shortage of public housing and an opioid epidemic.
The law also didn’t do enough to help people with social services like drug treatment, he said. “An extremely common scenario would be for addicts to steal cars so they had a warm place in the winter to use heroin,” Muse said.
Given the whiplash, it’s extremely difficult to find any conclusive impact of bail reform in the state, DiPietro said.
Now, more than half of the state’s incarcerated population is being held pending trial, worse than before the bail reform was passed, according to DiPietro, who also cautioned that the reason for that is unclear and likely complicated by crime trends during the pandemic.
New York got rid of cash bail for most misdemeanors and nonviolent felonies in 2020. But months later, amid an increase in violent crime that mirrored national trends during the pandemic, lawmakers began adding charges that could keep people in.
They are now considering further rollbacks, particularly after an election season dominated by tough-on-crime rhetoric that may have lost congressional seats for Democrats.
Rahman from the Vera Institute of Justice, which is based in New York, believes the state failed because it did not follow the example of its neighbor New Jersey.
“New Jersey did implementation really well,” Rahman said, pointing to the two years the state spent working with stakeholders and gathering data.
“New York did not do implementation,” she added. “They rushed to put the new law into effect and there was no deliberate process for getting buy-in from across all of the audience that need to be brought in. And almost three years later, New York is still facing a lot of backlash around bail reform and there’s talk of more rollbacks.
“Illinois, I think, has done a remarkable job,” Rahman said.
Cash bail is set to be eliminated in Illinois on Jan. 1, though a Kankakee County judge is hearing legal challenges from many counties and is expected to issue a ruling by the end of the year.
The law was included in the sweeping SAFE-T Act, which includes other court and police reforms. Under the act, the Illinois Supreme Court created a new statewide office for pretrial services, including risk assessment of people who are arrested. Cook County implemented pretrial risk assessment in 2015.
Risk assessments have become one of the most popular pretrial reforms nationally, the Harvard researchers found, and they play an important role when cash bail is no longer required.
“Everyone wants to be safe,” Rahman said. “It’s a kitchen table issue.”
At the same time, she believes bail reform is gaining momentum as more people know someone caught in the criminal justice system.
“In this country,” Rahman said, “we are at a point where one out of two people — so that’s a lot of Democrats, a lot of Republicans, a lot of independents, a lot of everybody else — has had a loved one who has been incarcerated at some point.”