Illinois lawmakers move to end cash bail with ‘Pretrial Fairness Act’

The Illinois General Assembly is one step closer to abolishing the use of cash bail after passing a massive bill that could transform the state’s pretrial court system.

The bail provision, known as the Pretrial Fairness Act, is one of many criminal justice reforms included in House Bill 3653, which was spearheaded by the Illinois Legislative Black Caucus and passed on Jan. 13.

“I think we’re leading the way,” said Illinois State Sen. Elgie Sims (D-Chicago), who helped corral and introduce the sweeping omnibus bill. “We’re showing that it’s possible to reimagine what our criminal justice system looks like.”

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

If signed into law by Gov. J.B. Pritzker, the bill would make Illinois among the first states to eliminate its cash bail system. But the use of cash bail wouldn’t end until 2023, per the request of state judges and probation departments, to allow them time to “fully understand what we’re trying to accomplish,” Sims said.

State Sen. Robert Peters (D-Chicago) and state Rep. Justin Slaughter (D-Chicago) announced the Pretrial Fairness Act in November. But abolishing the cash bail system in Illinois would also mark the culmination of a multi-year push by community organizers and legal advocates, including the Coalition to End Money Bond, a group of 14 advocacy organizations that helped draft the act and generate support.

Currently, defendants charged with felony crimes in Illinois are subject to a bond hearing before a circuit court judge. The judge decides whether the individual will remain in jail before the resolution of their case and can require a defendant to pay a certain amount to leave custody.

Community organizers and legal advocates have long accused the monetary bond system of punishing defendants charged with nonviolent crimes who cannot pay for release, leaving indigent defendants, who are mostly Black and Latinx, behind bars.

The need to pass and implement the Pretrial Fairness Act is more urgent than ever given Covid-19 and economic hardships families are suffering amid the pandemic, said Sharone Mitchell, the director of the Illinois Justice Project, a Chicago-based advocacy organization that is part of the Coalition to End Money Bond.

“We have jails that for much of the summer have served as virus centers, we have families that are making decisions about paying rent, utilities, or paying bond,” Mitchell said. “We have people taking pleas because they’re incarcerated, not because they are guilty…we are called the wrongful conviction capital of the world, and a lot of that has to do with what we do in bond court.”

Pritzker has expressed support for the Pretrial Fairness Act—and the Black Caucus’ bill—despite stark opposition to the bill from law enforcement groups and police unions. The Illinois and Chicago chapters of the Fraternal Order of Police, the Illinois Sheriffs’ Association, and the Illinois Association of Chiefs of Police released a statement Wednesday alleging that the bill was rushed and would make communities less safe.

“It ties the hands of police officers while pursuing suspects and making arrests, and allows criminals to run free while out on bail,” the law enforcement coalition said in the statement, stressing that more than 112,000 people had signed an online petition against the bill.

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.

April Friendly, an organizer with The People’s Lobby, another member of the Coalition to End Money Bond, said her group has been pushing for pretrial fairness for more than four years by working with and pressuring legislators, convening community meetings, and rallying outside courthouses and police stations. Organizers also trained community members as court watchers to monitor bond decisions.

If the bill becomes a law, Friendly said she and other organizers would have to turn their eyes toward monitoring the law’s implementation. Moreover, the Pretrial Fairness Act is not retroactive, meaning that people currently held in Cook County Jail who can’t afford bonds would not be automatically freed. And then there’s the two-year implementation period to consider. Peters said in the meantime that local bond funds working to bail out defendants “are still going to do the work that they do.”

 Rita Oceguera contributed reporting