A big overhaul is coming to Illinois’ criminal justice system in 2023, when cash bail will be eliminated.
The practice has been criticized for leaving defendants in jail for months while awaiting trial. Data also shows that requiring cash bail disproportionately affects minority communities.
While Illinois will become the first state to eliminate cash bail, the change does not apply to federal courts.
A new report from the University of Chicago Law School’s Federal Criminal Justice Clinic shows that locking up pretrial defendants has become the norm in federal court, rather than the exception, as required by law. And just as in state courts, many of those jailed are people of color unable to pay bail.
“One of the things that led me to want to do this study was after looking at the data, I saw the pretrial incarceration rates on federal crimes are much higher,” says Alison Siegler, founding director of the Federal Criminal Justice Clinic and lead author of the report, “Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis.”
It is the first national investigation of federal pretrial detention.
“Only 2% of federal crimes are considered violent,” says Siegler. “Why are we locking up so many people for non-violent crimes?”
The Bail Reform Act passed by Congress under President Ronald Reagan in 1984 was meant to keep the majority of federal defendants awaiting trial out of jail. However, the rate of people being jailed while awaiting trial has skyrocketed since then. Pretrial detention has surged from 29% in 1984 to 75%, according to the study.
Siegler’s data shows that federal judges often overlook legal requirements at initial bail hearings, leading to unlawful detentions.
“The federal bail law simply is not working,” says Siegler. “I do think a solution might be for Congress to step in and create a law that forces federal judges to properly apply the existing laws.”
Siegler supports the Smarter Pretrial Detention for Drug Charges Act, which was introduced in 2021 by Sen. Dick Durbin (D-IL), chair of the Senate Judiciary Committee.
The bill would eliminate presumption of pretrial detention for most federal drug charges.
“Far too many people are being detained pending trial without consideration of their individual circumstances,” Durbin said in a written statement at the time the bill was first drafted.