At the stroke of midnight Sunday, Illinois was supposed to be the first state in the nation to eliminate cash bail. As of Jan. 2, however, the Chicago Tribune reported that Cook County’s judicial system “chugged along … in the same way it has for years” under the old rules governing pretrial proceedings.
That’s because a Kankakee County judge ruled in favor of downstate prosecutors who sued to stop the no-cash bail policy — one of the major provisions in the larger SAFE-T Act criminal justice reform bill — from taking effect. The lawsuit claims the state legislature violated the Illinois Constitution’s separation of powers clause and interfered with judges’ ability to set bail.
Illinois Attorney General Kwame Raoul has appealed the decision, and the Illinois Supreme Court has halted the no-cash bail policy’s implementation while they process Raoul’s appeal.
Prosecutors and other critics of cash bail reform have claimed that eliminating money bail will increase violent crimes despite the paucity of evidence to back up such a claim.
Last year, the Civic Federation analyzed the proposal to eliminate cash bail. It concluded that “removing money as a factor in pretrial release decisions is supported by research, best practices and national principles on bail.”
For instance, publicly available data from the Cook County Chief Judge Tim Evans’ office shows that, of the 70,283 people charged with felonies and released pretrial between Oct. 1, 2017 through June 30, 2021, only around 3 percent were charged with “a new violent or person crime (murder, rape, robbery, aggravated assault, assault, battery, child neglect and other offenses against another person),” the Civic Federation reported.
A report by Loyola University Chicago that examined public safety outcomes after Cook County instituted pretrial reforms in 2017 “aimed at reducing pretrial detention in Cook County Jail due to bond amounts that defendants were unable to pay,” concluded that the reforms led to more people being released from bond court, yet no changes in the crime rate.
But the data is moot because whether or not we should have cash bail isn’t about outcomes. It’s about principles. Either we should base a person’s pretrial detention on their ability to pay to get out of jail as the court determines their guilt or innocence, or we shouldn’t.
Unless that is, we believe that being broke or poor makes a person more likely to commit a crime. In practice, there is no pure presumption of innocence. For instance, judges deny bail for defendants believed to be risks to society. Typically, that determination is based on a variety of factors. As it stands, a defendant’s ability to pay is, de facto, one of them due to the nature of our cash bail system.
Under our current system, a broke person awaiting their day in court for petty theft charges can spend more time in Cook County Jail (regardless of innocence or guilt) than a hardened murderer who can afford to post bond. That’s fundamentally inequitable and unjust.
During a Maywood visit last month, Cook County State’s Attorney Kim Foxx addressed the issue of cash bail reform and outlined her support for the policy.
“I am supportive of bail reform,” she said. “But just because I am supportive of bail reform does not magically empower me to let people out of jail. … The system right now allows for you to be charged with a violent offense and write a check to go home. I find that fundamentally problematic.”
As we reported at the time, Foxx pointed out that Illinois currently has the lowest thresholds for felony shoplifting in the country. In Wisconsin, the threshold is $2,000 worth of merchandise stolen. In Illinois, however, it’s $300.
“I’m not condoning stealing … but something is fundamentally wrong [when] our prosecutors are spending more time going after shoplifting than after guns,” she said, adding that 2016 was “the bloodiest year since 1999,” with “somewhere around 900” homicides in Cook County, the second-largest county in the country.
“The number one referred prosecution to our Felony Review Unit wasn’t guns or murder — it was shoplifting,” Foxx said. “Seventy percent of the people in our jail in 2016 were there for nonviolent offenses … they couldn’t afford their bond.”
In other words, eliminating cash bail also works to reform a system that comes down heaviest on average people who may or may not have committed the pettiest indiscretions while being laden with loopholes for the most dangerous and well-connected people in society — whether you’re the prized shooter of a deadly drug gang terrorizing the West Side of Chicago or a privileged Proud Boy terrorizing the nation’s capital.
When bail reform takes effect, Foxx said, if “you’re charged with murder or a violent offense, you can’t write a check and get out. We now have to say you have to be held. There is no amount of money you can post to get out. You are a danger to the public and your danger won’t go away just because somebody said to give me $1 million. That’s what’s changing.”