Photo caption: Safe-T Act. Inset: Representative La Shawn Ford (D-8th)
If you are arrested, you will no longer have to appear before a judge for a bond hearing, thanks to the now legal Pretrial Fairness Act that abolished the cash bail system. However, Representative La Shawn Ford (D-8th) fears some judges will abuse their newfound power, detaining Blacks and releasing whites who may commit the same crimes.
The Pretrial Fairness Act, part of the Safe-T Act, became effective on Monday, September 18, and, like when it was first introduced, it has already created a buzz.
Illinois is the first state in the nation to pass no cash bail legislation.
But the historic Act didn’t come easy. It was challenged in court by 65 States Attorneys, prosecutors, elected officials, and sheriffs who claimed that parts of the Act violated the Illinois Crime Victims’ Rights Act, and the separation of powers between the Illinois judicial and legislative branches.
However, the Illinois Supreme Court rejected their allegations, explaining that abolishing cash bond does not harm victims and that the power of whether an incarcerated person is released or detained is solely up to the judge’s discretion.
And that is what worries Representative Ford.
The reason is because the now legal judicial risk assessment lies in the hands of judges who will decide if a person is detained or released. “That is our goal, to make sure that only people who are at risk are detained.”
The ACLU echoed similar concerns. Ben Ruddell, director of Criminal Justice Policy for the ACLU, told the Chicago Crusader, “while implementation of the Pretrial Fairness Act marks a critical step in improving our criminal legal system, there is much more work ahead.
“But today demonstrates what can be accomplished when people work together for a common goal,” Ruddell said. “Now, we all must turn our attention to assuring that the law is implemented fully and fairly. We must ensure that release is not denied on the basis of race, the very harm that permeated the money bond system.”
Ford told the Chicago Crusader, “In the absence of cash bail, law enforcement agencies, prosecutors and judges play a crucial role in ensuring that arrests, prosecutions, and application of the law are done in a fair and just manner.
“It requires collaboration and a commitment to upholding the principles of justice for all individuals involved in the criminal justice system,” said Ford.
“This includes considering the individual’s risk to public safety, their likelihood of appearing in court, and their access to community resources, which can address underlying issues such as drug addiction.”
Under the old system, Ford said a person could be arrested, and the judge might order an unaffordable high bond no matter what the crime might have been. Offenders then languished in the jail system, sometimes for years, due to a lack of cash and because they had nobody to bail them out.
Both Ford and the ACLU agree that abolishing the cash bail improves safety by releasing offenders so they can return to their jobs and families while awaiting trial. That, they said, helps maintain safety for the entire community, as well.
Ford referred to Cook County Sheriff Tom Dart when he said the Cook County Jail “wasn’t designed to be a psychiatric facility, but it’s the largest mental health institution in the country… half of the detainees shouldn’t be here.”
This law, Ford said, “has changed it where judges have to measure the risk of an individual, and if that risk measures out to be a danger to the community, then they should be detained.
“Once the risk assessment is taken and they don’t appear to be a danger, the judge will have the discretion to send them home pretrial, and this is what this is about.” Ford said before this law came into effect people were being housed in jail.
“These people would lose their jobs, be held in jail only because they could not afford to bail themselves out,” said Ford, explaining that the old cash bond system was a slap in the face to justice.
“What we know is that people with the ability to pay, like violent people, can bond themselves out.” That, Ford said, is not making a community safer. “That makes it very dangerous for us.”
He said in the category of those who can meet cash bond, included are drug dealers who have a lot of money, those arrested for murder, but because they have the financial means to bail themselves out, they can walk; versus persons arrested for drug possession and can’t bail themselves out though they are not a risk to the public.
“The intent of this law is to keep dangerous people behind bars; people who are measured to be dangerous through the assessment should remain in jail pretrial, but those who don’t pose a risk to the public should be pretrial released. It’s all about measuring risks and that is up to the judge,” said Ford.
But that is what is so important about this new law, according to Ford.
“We have to have a watchful eye on the judges. If you look at the history of the courts, it has never favored Black people. Judges have always had the discretion to detain people based on their risks. Ford said now judges have two options, to detain them or release them.
“Now the judges have no way out,” Ford said, “release a person unless they have a good cause to detain them. Previously, the judge did not have that discretion, they simply had to detain somebody they thought just because they could.”
Now, judges must exercise one of two options, release a person, or detain them based on risks.
“What we have to do is to have a watchful eye, since there are only two options, no cash bail and you are released on your own or you have to stay,” said Ford. Some Blacks, he said, may think this is not fair, “because they will say judges will not be fair.”
“What we have to worry about is whether the judges will be fair with the people they have been unfair to for all of these years,” Ford said.
“Will the judges be detaining more Black people? That is what we have to watch.”
Ford said the legislature will have some type of oversight on the rulings of these judges under this new system. He said what needs watching is if a judge detains Blacks due to risks but releases whites for the same crime. “Will there be equal justice under this law, or will they be judged fairly based on the risks?
“We have to look to see there is no disparity in detaining people. Including watchdog groups like the ACLU, “because Black and brown people have been jailed pretrial because of their inability to pay. We have to make sure that the intent of the law is carried out, that the very people we are aiming to protect are not going to be victims of the new law because of judicial discretions,” said Ford.
When contacted, Matthew McLoughlin, from the Illinois Network for Pretrial Justice, told the Chicago Crusader, “That is definitely a concern for our network. We have been working on this issue of racial injustice. It was the main driver addressing the money bond system. Unfortunately, biasness” has infiltrated the legal system.
McLoughlin said that is why his Network has trained over 250 members to watch and record what is happening in the courtrooms, then meet with the chief stakeholders on how they can make sure the intent of the law is adhered to.