Video: Joining “Chicago Tonight: Black Voices” are Ahmadou Dramé, director of the Illinois Justice Project; Cook County Public Defender Sharone Mitchell Jr.; and the Rev. Charles Straight of East Side United Methodist Church. Straight is part of the Illinois Network for Pretrial Justice that has worked to reduce pretrial detainment. (Produced by Acacia Hernández)
Beginning next week, people arrested for crimes across Illinois will no longer be ordered to pay a set cash amount to ensure their release from jail, marking a first for any state in the U.S.
The long-anticipated elimination of cash bail officially takes effect Monday, following extensive delays, legal challenges and pushback from some prosecutors and law enforcement officials who sought to keep the existing system in place.
With the Pretrial Fairness Act — a section of the Illinois SAFE-T Act passed two years ago — going into effect, those charged in criminal cases will no longer have to pay any cash in order to be released from jail while they wait for their trial.
WHY IS CASH BAIL GOING AWAY?
Advocates have for years pushed for this change, saying it’s long overdue as the cash bail system punishes those who were forced to remain in jail, not because of any risk they pose to the public, but simply because of their finances.
“Black, Brown and poor communities are bearing the brunt of this injustice that is wealth-based incarceration,” Briana Payton, a senior policy analyst with the Chicago Appleseed Center for Fair Courts, said during a panel discussion this month held by the Institute for Innovation in Prosecution at John Jay College of Criminal Justice.
A 2022 federal civil rights report on cash bail systems found that courts tend to impose higher pretrial detention penalties on Black and Latino people, citing a study that showed Black men received bail amounts 35% higher than White men, and Latino men received bail amounts 19% higher than White men.
The Associated Press has reported that between 1970 and 2015, there was a fivefold increase in the number of people jailed before trials, according to the 2022 U.S. Commission on Civil Rights report. Data shows more than 60% of defendants were detained prior to trial because they couldn’t afford to post bail, and that nearly 74% of the 631,000 people jailed daily in the United States are awaiting trial.
Critics, however, argue this shift will put dangerous people back on the street.
The loudest opposition to the change in Illinois has come from law enforcement. Jim Kaitschuk, executive director of the Illinois Sheriffs’ Association, told the Associated Press that members’ focus is now on trying to “work through it the best we can.”
“I think we’ll be searching for a lot of people” because defendants who don’t post bond have no incentive to return to court, Kaitschuk said.
Cook County State’s Attorney Kim Foxx said that while there’s an “inevitability” that someone released from jail without paying bond will commit another crime, those cases are rare exceptions.
She argued that it’s not fair to keep a majority of people locked up pretrial for something that happens a small percentage of the time.
“What we wanted to make sure was that as a system, we also talked about the 98% of the people who go home, having not committed another offense, who return back, and that we have to continually emphasize that,” Foxx said during the Institute for Innovation in Prosecution panel discussion. “Because these systems get hijacked by the thing that happens rarely, and it impacts the majority.”
Illinois was set to become the first state to fully eliminate cash bail at the start of 2023, but that was delayed several months after a circuit court judge ruled the change violated portions of the state’s constitution.
But in a 5-2 decision in July, the Illinois Supreme Court overturned that ruling and found that the Pretrial Fairness Act is constitutional.
“We are excited about the fact we will be moving away from that system, because it really has taken a toll … on primarily Black women, Brown women who have been putting up and posting bond for people to be released,” Ahmadou Dramé, director of the Illinois Justice Project, said Friday on an episode of “Chicago Tonight: Black Voices.”
“Moving away from that system, and moving towards one that really focuses on a case-by-case assessment in those individual hearings … is something that’s critically important if we’re going to restore trust in our criminal legal system,” he added.
WHAT IS CHANGING?
Under the existing system, when someone is arrested for a crime, a judge can decide whether that person is eligible to be released from jail as their case plays out if they post a certain amount of money. That amount (bail) is paid as a means of ensuring the defendant will continue showing up for their court hearings and eventual trial, if the case gets that far.
There are different types of bail in Illinois that require different types of payment. Under an I-bond, or personal recognizance bond, a defendant would not have to post any money to be released. Under a D-bond, a defendant would have to pay 10% of the set amount — so if a judge issues a $100,000 D-bond, that defendant would have to put up $10,000. A C-bond, or cash bond, requires a defendant to pay the full bail amount.
Beginning Monday, this will no longer be the case. If a judge decides a defendant does not pose a public safety or willful flight risk, then they will be released without being required to post any money.
People arrested for certain serious felonies — including first- and second-degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault and criminal sexual assault, violent robberies and burglaries, residential burglary, home invasion and vehicular invasion — can still be denied pretrial release.
Prosecutors must request a detention hearing and the decision whether to hold someone or not will be made at a judge’s discretion. That ruling will be based on factors including the defendant’s likelihood to flee or any public safety risk they may present.
“The reality of the situation is that the use of money bond is a deplorable practice, frankly it has very close ties to slavery,” Cook County Public Defender Sharone Mitchell Jr. said Friday on “Chicago Tonight: Black Voices.” “We’re putting dollar amounts on people’s freedom. We are very excited that we are moving to a new process that doesn’t ask people to buy their freedom.”
Mitchell said his office has been preparing for the Pretrial Fairness Act to be enacted for more than two years, by hiring more than 100 additional attorneys and putting his staff through different training so they’re prepared to handle this shift.
WHAT ABOUT PEOPLE WHO ARE CURRENTLY IN JAIL WITH A CASH BAIL?
Once this change officially takes effect, defendants who are already in jail because they couldn’t pay their cash bail can also request hearings to decide if they should be released, which will be granted within a certain timeframe based on the nature of their alleged offense.
Those defendants who were determined to pose a possible flight risk must be given a new hearing within 60 days of their request, while defendants who may pose a safety risk must have a hearing within 90 days. For the defendants facing low-level charges, their hearing must be held within seven days.
As of Wednesday, there were 835 people being detained in the Cook County Jail with nothing more than an unpaid cash bail holding them there, according to records from the Cook County Sheriff’s Office. Those people had no other detainers, warrants or holds keeping them in jail. This total did not include people who have paid their cash bail and are out of jail on electronic monitoring.
Of that total, 95 people needed to post less than $1,000 to be released, the records indicate. That means they either had a C-bond totalling less than that amount, or they were required to pay 10% of a D-bond that was issued at less than $10,000.
There were also 316 who needed to post between $1,001 and $5,000 in cash, and 92 people required to post between $5,001 and $10,000, according to the Sheriff’s Office records. Beyond that, 118 people being held at the jail were required to post between $10,001 to $30,000, 42 people were required to post $30,001 to $50,000, 65 people needed to post between $50,001 to $100,000, and 107 people had to post more than $100,000.
The jail’s total population as of Wednesday was 5,439 people.
“There are a lot of strategic decisions to be made,” Mitchell said, “but those will be happening individually with their attorneys.”
The Associated Press contributed to this report.