Illinois Ends Cash Bail: What’s Next?

On September 18, 2023, Illinois became the first state in the country to eliminate money bail. This long-awaited implementation of the Pretrial Fairness Act is a huge victory for the national movement to end wealth-based detention. For Illinoisans, this legal change is life-altering: many people awaiting trial will now be able to return home to their families, jobs, and lives – regardless of socioeconomic status. While reports thus far have been positive about the transition, challenging hurdles to creating a strong, accountable pretrial system remain.

Passing a strong bail reform law is the first step. But implementation is where the rubber hits the road. To ensure that the presumption of innocence is properly applied in this renewed criminal justice system, stakeholders must remain true to the law’s original intent: eliminate wealth-based detention, reduce racial disparities, and meaningfully advance public safety.

True bail reform results when we pass laws that reduce incarceration, uphold due process, create equity, and also ensure that the reformed system does not result in new forms of injustice. Fortunately, experiences across the country offer guidance on how to avoid unintended consequences in implementing bail reform.

Smart and effective bail reform policies in places like Harris County, TX have limited cash bail, reduced pretrial incarceration, and improved court return rates. However, as with any new system transformation, unexpected hurdles in jurisdictions that have reformed cash bail use often arise, providing us with learnings that can positively inform next steps in Illinois:

• A change to Maryland’s court rules in 2017 disfavored the use of cash bail, guiding judges toward requiring only the “least onerous” conditions of release. This change decreased the number of people jailed pretrial. However, electronic monitoring continued to proliferate, and in 8 counties and in Baltimore City, defendants are required to pay significant fees for its use while at home awaiting trial; if they cannot afford these fees, they must stay in jail instead. Once cash bail declined, wealth-based detention shifted into this different system, penalizing those who can’t afford to pay in a different way.
• New Jersey’s 2017 bi-partisan Criminal Justice Reform Act eliminated the long-standing reliance on cash bail and instituted a pretrial risk assessment tool (the PSA) to guide pretrial decision making. However, pretrial risk assessment algorithms can perpetuate racial bias in how they evaluate risk, resulting in a higher risk of incarceration for Black and brown people. Thus, while New Jersey’s pretrial jail population is significantly lower following bail reform, racial disparities within jails persist: Black residents accounted for a staggering 60% of the jail population in 2021.
• In 2019, New York passed sweeping bail reform that eliminated cash bail for most non-violent charges and successfully reduced the number of people in jails across the state by 15% in its first two years. Despite several analyses showing that bail reform had no negative effect on rearrest, and in fact reduced rearrest in New York City, lawmakers responded to a fear-mongering media onslaught based on false information by rolling back the reforms, and failing to sufficiently fund implementation, particularly in rural counties.

These are far from cautionary tales – rather, they are stories of progress which contain lessons about how we can ensure that bail reform in Illinois achieves all that it was intended to, and perhaps more.

The challenge before Illinoisan stakeholders is to take these lessons and apply them whenever possible: beware proxies for wealth-based detention, track and focus on solutions that ensure pretrial release is equitable, provide proper resources across the state to support this transition, and stand strong against falsehoods. Fortunately, elected leaders and advocates, like the Coalition to End Money Bond and the Illinois Network for Pretrial Justice, are laser-focused on protecting the law and ensuring that its implementation advances racial and socioeconomic justice, improves due process, and reduces the overuse of jails.

Fundamentally restructuring any long-standing system is genuinely difficult. Passing a transformative law is a crucial victory, providing a necessary foundation for change. But implementation requires hard decisions that the law may not have provided a specific solution for. The nation’s eyes are rightfully on Illinois after taking a massive step forward by eliminating wealth-based detention. But the work is far from over; implementation is just as important.