Pretrial Fairness Act would make Illinois the first state to abolish cash bail

Update: The Pretrial Fairness Act passed the Illinois General Assembly on Jan. 13. It now awaits the governor’s signature before becoming law.

A bill introduced this week would make Illinois the only state in the country to abolish cash bail, ensuring that people accused of crimes, who are legally considered innocent until proven guilty, don’t await trial in jail just because they can’t afford bond.

State Sen. Robert Peters (D-Chicago) introduced the bill, called the Pretrial Fairness Act, to the state senate on Nov. 9.

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Peters said the cash bail system imposes a different justice system on defendants who can afford their bond compared to those who can’t.

“All it does is reinforce the idea that if you’re poor, you’re supposedly more dangerous,” he said in an interview with Injustice Watch, adding that the policy sits “at the intersection of race, class, and gender.”

Research shows that people who are jailed pretrial are more likely to plead guilty, more likely to be sentenced to jail time, and receive longer sentences than people who are released. Black and Latinx defendants are less likely than white defendants to be released without financial conditions.

Under the Pretrial Fairness Act, a judge can still detain someone pretrial, but only if they are charged with specific felony offenses, such as domestic battery, murder or certain gun crimes, and the judge determines that they pose a threat to a specific individual or that they are likely to intentionally skip court. In all cases, a judge must impose the least restrictive conditions they believe will ensure that a defendant returns to court.

Opponents of the bill said rushing to eliminate cash bail without providing every county in the state the resources to ensure that people appear for their court dates has the potential to backfire. Many counties do not have enough pretrial officers, said John McCabe, the director of governmental relations for the Illinois Probation and Court Services Association, which opposes the Pretrial Fairness Act in its current form.

McCabe said if cash bail is eliminated too quickly in Illinois and people released pretrial re-offend, judges could lose confidence in the no-cash bail system and release fewer people.

“[Then] you’re going to find more and more people held for trial, and instead of emptying the jails, you’re going to have the opposite effect,” McCabe said.

Other states that have tried to eliminate or drastically reduce cash bail have seen this kind of blowback. In both Alaska and New York, bail reforms passed in the past several years have been rolled back or amended because politicians or police unions believed the initial bills went too far or risked their communities’ safety. In California, a bill to end cash bail passed in 2018, but voters rejected the bill through a ballot measure in the election this month.

New Jersey significantly reduced its use of cash bail in 2017, and it has seen some success. The rates of court appearances and rearrests remained about the same and the number of people held in the state’s jails decreased by about 44 percent from 2015 to 2018, according to a report by the New Jersey Courts. “Concerns about a possible spike in crime and failures to appear did not materialize,” according to the report.

An Illinois Supreme Court commission report released in April pointed to New Jersey’s success as a model and said eliminating cash bail without first implementing other reforms would be “premature.

Pretrial Fairness Act supporters said the state Supreme Court commission’s recommendations came with no roadmap or sense of urgency.

“To limit action based on the promise or the suggestion of better action is not productive,” said Malik Alim, the campaign coordinator with the Chicago Community Bond Fund. “The people who have been preyed upon, they don’t have time to sit back and wait for this nebulous process that the Supreme Court commission is outlining.”

Gov. J.B. Pritzker said last month that ending cash bail was one of his “guiding principles” for criminal justice legislation this year, but his office did not respond to requests for comment about the Pretrial Fairness Act.

Proponents said the Covid-19 pandemic, which spread rapidly through carceral settings, brought into stark relief the dangers of pretrial incarceration. More than 600 detainees at the Cook County jail have tested positive for the virus and seven people have died, according to data released by the Sheriff’s Office.

“We think that by passing the Pretrial Fairness Act, reducing inappropriate incarceration and ending wealth-based incarceration, that you wouldn’t have had all that sickness and all that death,” said Sharone Mitchell, the director of the Illinois Justice Project, one of the members of the Coalition to End Money Bond, a group of 14 advocacy organizations who helped draft the bill.

The coalition has pressed lawmakers at recent legislative committee hearings and town hall meetings to support the Pretrial Fairness Act. The bill would also require that Illinois collect more data about pretrial decisions and outcomes across the state, reduce the penalty for failing to appear in court, and change the rules for pretrial home confinement, according to a draft of the proposed legislation that was shared with Injustice Watch.

However, the coronavirus pandemic has put the bill in limbo. On Tuesday, state legislative leaders postponed the annual veto session that was scheduled to start next week, due to the state’s skyrocketing Covid-19 cases. Senate Majority Leader Kimberly A. Lightford (D-Hillside) said in a press release that the General Assembly will hold a lame-duck session in January and that criminal justice reform will be on the agenda.

Peters, the bill’s sponsor, said the additional time would allow the organizers behind the Pretrial Fairness Act to continue building support in the General Assembly.

“What we have right now is a lot of momentum, a lot of organizing,” he said. “And we have the case to be made that after 40 years of failed tough-on-crime policies, that it’s time for us to go in a new direction.”