Illinois became the first state to completely abolish cash bail when a 2-year-old law finally went into effect on Monday, ending a long-criticized practice that disproportionately affects poor people.
The Pretrial Fairness Act of 2021, which ends money bond and the practice of putting criminal defendants in jail before trial if they can’t afford to pay, became law after the Illinois Supreme Court voted 5-2 in July to uphold it in the face of a legal challenge. That decision overturned a lower court judge, who had ruled that the law violates the state constitution’s provision that “all persons shall be bailable by sufficient sureties.”
Without cash bail, judges will now decide if a defendant can be released pretrial based on whether they pose a threat to the community.
Jeremy Cherson, director of communications for The Bail Project, an organization that provides free bail assistance to those in need, told HuffPost that it’s a good economic move for Illinois to get rid of cash bail because it keeps people out of jail, which lowers jail administration costs. Plus, the organization has seen people die in jail while waiting for their court hearing, which leads to wrongful-death lawsuits.
“There’s economic costs of detaining people that are sort of macroeconomic costs, where if a person loses their job, they can’t be a part of society, they can’t contribute in that way that is important to Americans and to each person who’s responsible to their families,” Cherson said. “And that’s an extensive cost that the state ultimately has to bear, whether it’s through increased benefit payments or supportive services that are completely unnecessary if otherwise we just let people continue their lives.”
Advocates for getting rid of cash bail say it’s used to hurt poorer people. Wealthy people can easily pay their way out of jail while they await trial, while others can’t. This largely affects people of color.
The Associated Press wrote about Shannon Ross, a person of color, who could not afford the $75,000 bond set after he was arrested in Chicago on weapons charges. He was found not guilty, but after spending months in jail awaiting trial, he lost his home, his car and his job.
“I had to lose everything to prove that I wasn’t guilty,” he told the AP. “It messes with you mentally, psychologically. It messes up relationships; it messes up the time you put in to build your life up.”
Others lose their lives. In 2015, Kalief Browder died by suicide two years after he was released from jail, where he spent more than 700 days in solitary confinement awaiting trial for allegedly stealing a backpack. (The charges were ultimately dropped.)
“There are plenty of people across the country who died in jail because they haven’t been able to pay bail, and they’ve been inside some of the nation’s most dangerous jails,” Cherson said. “Kalief Browder in New York City is sort of the landmark case around that, but it happens with great frequency all the time. Fulton County Jail in Atlanta, for example, has high rates of in-custody deaths. Jacksonville, Florida, has high rates in custody. So it’s a constant problem.”
Georgia’s Fulton County Jail, where former President Donald Trump was booked before posting bond in August, has had 10 jail deaths this year through Sept. 7. Florida’s Duval County jail, in Jacksonville, has had 11 jail deaths this year through Aug. 11, and had 19 more in 2022, according to local news.
Critics of abolishing cash bail argue that it helps ensure defendants show up for their court hearings. But Cherson said that isn’t the case. The Bail Project has been around since 2018 and has worked with 30,000 people, and Cherson said 91% of the time, defendants return to court for their hearings.
“There’s a whole fallacy that’s been built around the idea of bail reform, that it’s just going to lead to terrible violence, and a lot of that has been because of specious arguments made by law enforcement and law enforcement unions,” Cherson said. “And I think that’s unfortunate.”
In 2017, Cook County, Illinois, began requiring judges to set cash bail only in amounts people could afford. Statistics show that the reform led to a decrease in the percentage of people rearrested on violent charges, according to a study from the JFA Institute, a criminal justice think tank that works with state and local governments.
New York, New Jersey, California, New Mexico and other states have instituted some degree of bail reform, but Cherson said Illinois’ abolition of cash bail is a “big step.”
“This is a very momentous decision, very momentous law in the movement for pretrial justice across the United States,” he said. “You know, Illinois is taking a big step to completely abolish the use of cash bail.”
“I think people will be watching because it’s such an issue, and I think we’ll likely see that this is going to be fought,” Cherson continuted. “And then it will hopefully encourage the lawmakers in other states to follow suit.”