Illinois looks to become the first state to end cash bail

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(Photo by Giorgio Trovato on Unsplash)

By Patrick Forrest

A new piece of legislation would make Illinois the first state in America to do away with the system of cash bail that many have viewed as a pillar of institutional racism within the justice system.

The bill, which was introduced last week, would ensure that people accused of crimes don’t await trial in jail just because they can’t afford bond.

State Senator Robert Peters introduced the bill, called the Pretrial Fairness Act, to the State Senate on November 9, arguing that the cash bail system imposes a different justice system on defendants who can afford their bond compared to those who can’t.

“All it does is reinforce the idea that if you’re poor, you’re supposedly more dangerous,” he said. “The policy affects the largest intersection of race, class, and gender.”

The Pretrial Fairness Act would still allow a judge to detain someone pretrial, but only if they are charged with specific felony offenses like domestic battery, murder or certain gun crimes, and the judge determines that they pose a threat to a specific individual or that they are likely to intentionally skip court. In all such cases, a judge would be required to impose the least restrictive conditions they believe will ensure that a defendant returns to court.

Other states that have tried to eliminate or greatly reduce cash bail have seen blowback to the proposal. In both Republican-led Alaska and Democrat-led New York, bail reforms passed statewide during the past several years but have been rolled back or amended due to arguments by politicians and police unions that the respective bills went too far and would risk their communities’ safety.

California also had a bill to end cash bail, which passed in 2018, but voters rejected the passage of the bill through a ballot measure in the election on November 3rd.

Multiple studies have shown that Black defendants are much less likely than white defendants to be released without financial conditions and, due to the financial gap seen all over the country, are also less likely to be able to meet them. Research has also shown that people who are jailed pretrial are more likely to plead guilty, more likely to be sentenced to jail time, and receive longer sentences than people who are released.

Opponents of the bill have said rushing to eliminate cash bail without providing every county in the state the resources to ensure that people appear for their court dates has the potential to backfire. Many counties do not have enough pretrial officers, said John McCabe, the Director of Governmental Relations for the Illinois Probation and Court Services Association, which opposes the Pretrial Fairness Act in its current form.

“To limit action based on the promise or the suggestion of better action is not productive,” said Malik Alim, the campaign coordinator with the Chicago Community Bond Fund. “The people who have been preyed upon, they don’t have time to sit back and wait for this nebulous process that the Supreme Court Commission is outlining.”

A report released in April by the Illinois Supreme Court Commission pointed to New Jersey’s success as a model and said eliminating cash bail without first implementing other reforms would be “premature.”

Pretrial Fairness Act supporters have argued that the State Supreme Court Commission’s recommendations came with no roadmap or sense of urgency and would simply shift responsibility with no timetable to get things done.

“We think that by passing the Pretrial Fairness Act, reducing inappropriate incarceration and ending wealth-based incarceration, that you wouldn’t have had all that sickness and all that death,” said Sharone Mitchell, the Director of the Illinois Justice Project.

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