Noted & Quoted•
Illinois Set to Become the First State to Eliminate Cash Bail
By Alexander Lekhtman
Illinois will make history by becoming the first US state to end cash bail. Instead, judges must impose the least restrictive measures to make sure defendants show up in court.
This reform and others—which passed the state legislature as a package on January 20 and now await an all-but-certain signature from Governor JB Pritzker (D)—come after a years-long campaign to address systemic racism in Illinois’ courts and jails.
“The community drove the movement to end money bond in Illinois,” Sharone Mitchell, director of the Illinois Justice Project, told Filter. “Advocates, activists, and concerned people built a coalition, organized across the state, pushed the media’s conversation, partnered with legislators, and consulted with key stakeholders to make this happen. They crafted a solution that seeks to end money bond, reduces pretrial incarceration, and dismantles the legal structures that force people into imprisonment because they are poor.”
“Eliminating money bail is just one of many steps needed to make the system fair, safe and equitable.”
“Illinois will likely be the very first state in the country to completely strike money bail from the law,” added Meghan Guevera of the Pretrial Justice Institute. “This would be a big step forward, but eliminating money bail is just one of many steps needed to make the system fair, safe and equitable for everyone.”
Currently, people arrested and charged with a crime in Illinois must appear before a judge for a bond hearing. The judge determines if they must be held in jail before their trial or released, and on what conditions. These may include paying bail, agreeing to home confinement and electronic monitoring, or both.
But under the reform—contained in House Bill 3653—money bail will be ended. The state’s current bail system discriminates against low-income people. In Cook County, Illinois in 2019, about 2,600 people—roughly half of all people in pretrial detention—could not afford to post bail, or didn’t have a home to qualify for electronic monitoring. Nationally, about 700,000 people stay in jail every day because they can’t afford bail. That is similar to the entire population of Washington, DC locked in a cage every day for being too poor.
Illinois’ reform also means that judges will only be able to order someone to be detained pretrial for certain felony charges, including domestic battery, murder and firearms offenses. People deemed to pose a specific danger to another, or to be at risk of intentionally skipping court, can also be detained.
It will be important to ask what exactly these last two exceptions mean, and how they will be determined by judges; there seems to be plenty of room for subjective interpretation. The idea of people escaping town to skip their court date does not often reflect reality. In truth, many people miss court simply because they cannot afford transportation, time off work, or child care.
The bill additionally puts stricter limits on the conditions of pretrial detention. The includes use of electronic monitoring—whether through attaching a digital device to a person’s body to surveil their activities or movement, or restricting their use of telephones and computers. People under this monitoring may be confined to their homes or to certain geographic areas.
If they want to use electronic monitoring for a defendant, they must prove it is necessary at the outset—and then again after every 60 days.
The reform’s requirement that judges use the least restrictive measures necessary to ensure defendants show up in court means that if they want to use electronic monitoring for a defendant, they must prove it is necessary at the outset—and then again after every 60 days of monitoring. And any time served under such monitoring will be subtracted from a defendant’s sentence if they are later convicted.
An oversight board will also publish quarterly data on which counties are using electronic monitoring—significant in its own right, because throughout the US, advocacy organizations have found it difficult-to-impossible to know which jurisdictions are using this technology. Estimates indicate that about 125,000 monitoring devices are used in the US today.
The Illinois reform will also address counties’ use of computer algorithmic “risk assessment” software. Basically, these are computer programs which “predict” the likelihood that a defendant will skip court or pose a danger, and recommend whether or not they should stay in jail.
The programs are controversial among justice advocates, who argue that, by relying on data like prior arrest histories, the algorithms’ predictions merely reflect and amplify the criminal-legal system’s existing racism. In Illinois, counties will now have to publicly report when they use these algorithms, and the law will not require their use.
These reforms have the potential to radically alter the state’s jail system by increasing transparency and judges’ accountability. “[It is] a strikingly arbitrary system under which defendants’ fates—whether they are released or held in jail—depend on which judge they happen to draw and what the judge’s mood happens to be at the time,” wrote local journalist group Injustice Watch. Judges may literally make decisions in a minute. The result is that mostly Black, Brown and poor defendants are detained in jails awaiting trial, while their whiter and wealthier counterparts can be released.
Pretrial detention in jails has also swollen the state’s incarcerated population–even as the prison population has fallen. According to the Vera Institute, the state’s jail population has shot up 5 percent since 2000, while the prison population has dropped 12 percent. Pretrial detention accounted for 71 percent of the state’s jail population in 2015.
The racial disparities in Illinois jails are shocking. Black people make up nearly half of all people in jail–more than triple their proportion of the general population. Today they are close to 7 times more likely than white people to be jailed, while Indigenous people are more than twice as likely as whites to be jailed.
Illinois’ reforms to its jail system are perhaps the most far-reaching to date in the US. But once signed, they won’t take effect until 2023, and will not be retroactive. People detained and held on bail until then will not be freed after the fact. And despite the improvements, judges may still have too much authority to detain people pre-trial.
Nonetheless, the door is now open for other states to make similar efforts to keep more people out of jail.