Illinois Becomes First State to Abolish Cash Bail
Recently, the Illinois State Supreme Court upheld the 2021 Illinois Pretrial Fairness Act (officially known as Public Act 101-652), which abolishes cash bail and specifies procedures judges must use to impose pretrial detention. The Act establishes a default rule that all persons are eligible for pretrial release on personal recognizance, which is an agreement by the arrested person that they will comply with the terms of the court without paying cash bail. The Act also requires the State to establish a defendant’s eligibility for pretrial detention, making pretrial release the default. The Court’s opinion noted that the Illinois Constitution did not require money bail, and recognized that monetary bail is not the only way to assure a defendant’s presence at trial and to protect the public. Moreover, the Court held that regulating bail was a legislative function and the Illinois State Legislature, which has been regulating the state’s bail system since it first codified state criminal procedure in 1963, had proper authority to enact the 2021 legislation abolishing cash bail.
The Court’s opinion means that Illinois is now the first state to implement a pretrial system that will never demand payment for release. And, according to the ACLU, “anyone currently jailed under a cash bail order will get a release hearing under the new law.” While this change in Illinois is historic, pretrial money bail across the country remains a significant obstacle to criminal and economic justice across the nation. Since the 1980s, the U.S. jail population has more than tripled. A driving force behind this increase is a massive increase in the number of people held before trial (the “pre-trial” population). More than 400,000 people are currently held in pretrial detention, with the median bail bond for a felony being $10,000. The average income of a man who cannot afford bail is $16,000; for women, it is $11,000.
A report in 2017 from the Prison Policy Initiative provided several recommendations to reduce jail growth. These included (1) For low-level crimes where substance abuse and/or mental illnesses are involved, states should make treatment-based diversion programs the default instead of jail. States should also fully fund these diversion programs; (2) States should ban for-profit probation; and (3) States should eliminate the two-track system of justice by abolishing money bail. Multiple jurisdictions have found that releasing people pretrial does not harm public safety. As the country with the highest incarceration rate in the world, the United States should look to Illinois as an example of what can happen when safety and freedom work together in the justice system.
In September, Equal Justice Under Law secured a monumental victory in its lawsuit, Welchen v. Sacramento, a case challenging Sacramento’s pretrial cash bail system. The city’s bail policy resulted in indigent arrestees being held in jail longer solely because they could not afford to pay bail, while wealthier arrestees charged with the exact same crimes could go free. U.S. District Judge Nunley issued an order finding Sacramento’s bail schedule to be in violation of the Due Process Clause of the Constitution. Judge Nunley also issued an injunction preventing the Sacramento County Sheriff and the Attorney General of California from enforcing the bail schedule or any subsequent pre-arraignment bail schedule that set specific dollar amounts for bail by reference solely to criminal charges, without allowing defendants to modify their bail amounts based on their individual ability to pay, risk of nonappearance, or threat of public safety before trial.
Equal Justice Under Law is dedicated to making sure that no one is held in jail simply because they cannot afford their bail. To read more about our cases challenging money bail, click here.