Unless a judge steps in, Illinois is poised to become the first state to eliminate cash bail, expanding an approach that has seen some success elsewhere. 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 on the public. Advocates say the law will impose long-needed equality in the criminal justice system and will actually make the public safer. Other states have tried limited versions of what Illinois is about to do. That has made it difficult to know exactly what to expect, reports the Chicago Sun-Times. Harvard University’s Kennedy School of Government researcers 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.” Reform advocates say the criminal justice system is inherently unfair when people with money can get out of jail, 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 danger to the public. No one will have to put up money to get out, resolving a basic inequality that has come with a considerable social cost, argues Insha Rahman of the Vera Institute of Justice. The longer people are held in jail, the more likely they are to lose their job or home or connections to family and community. People behind bars are also likely to agree to higher sentences in a plea agreement than people out of jail, Rahman said. More than a third of the people incarcerated in the U.S. are in local 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, reaching 173,000 in 2019. The savings from more releases could be used to target crime in other ways, like more drug treatment programs, more affordable housing and other social services. Across the U.S., a growing number of jurisdictions are reevaluating the use of cash bail. As in Illinois, the efforts have met with resistance.
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 be imposed only 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, D.C.'s Pretrial Services Agency found that 83 percent of people were released to the community at their first court appearance. The approach appears to be working, because over five years, 88 percent f defendants were not arrested for another crime, and of those who were, fewer than two percent were alleged to have committed a violent crime. Nearly 90 percent of defendants showed up for court. In New Jersey, court officials have reported similar results after the state passed criminal justice reforms in 2017, including the near elimination of cash bail. In 2021, only 23 people were required to post money to be released, only because most of them were accused of violating the initial conditions of their release. While many more people were being released from jail, the rate of people appearing at their subsequent court hearings rose to 97 percent in 2020. 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 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.