In February of 2021, Illinois governor J.B. Pritzker signed a bill into law making Illinois the first U.S. state to abolish cash bail payments for arrested individuals who are waiting to stand trial. Known as the Illinois Pre-Trial Fairness Act, proponents of the law argue that cash bail is a “poor people’s tax” because incarcerated individuals who don’t have enough money to pay bail end up in jail for significantly longer or take premature plea deals to get released.
Additionally, criminal justice reform advocates contend that cash bail has a disproportionately negative impact on people of color. Police unions and organizations across Illinois strongly condemned the legislation when it was initially passed, saying that the law punishes police officers and law-abiding citizens because it limits the power of police to stop crime and allows arrested individuals to be free to commit more crimes before they stand trial.
How Does ‘No Cash Bail’ Work in Illinois?
The law was initially set to go into effect on January 1, 2023, but several legal challenges delayed this. Although a lower court ruled the law unconstitutional, a 5-2 decision by the Illinois Supreme Court upheld the legality of the law, saying that the Illinois constitution does not mandate a monetary bail as the only way to protect the public or ensure criminal defendants show up for trial. The law then went into effect on September 18, 2023.
Even though cash bail can no longer be applied to arrested individuals in the state, judges can still determine whether those accused of specific felonies and violent misdemeanors (such as murder, sexual assault, arson, or burglary) pose a risk to others or the community. If a judge determines that a criminal defendant falls into either of these categories or is a potential flight risk, the defendant can still be held in jail prior to trial.
People accused of “more significant offenses” will have to appear in court within 48 hours of their initial arrest, even if they are not initially incarcerated. Criminal defendants not falling into these categories will be released on the condition of attending required proceedings and judicial hearings—at least until the date of their trial.
The History of Cash Bail and the Push to End It
Cash bail is the practice of requiring a specific amount of money that a defendant must post to be released from custody until their trial. This practice has existed in various forms for centuries.
In the United States, the practice of releasing criminal defendants before their trial, if they could pay a set amount of money, has existed for its entire history. The only element of the U.S. Constitution that limits this is the Eighth Amendment, which specifies that judges cannot require “excessive” bail.
However, this vague limitation on imposing cash bail has led to issues with defining what amount is considered excessive in each specific case. This problem has been amplified in the last half-century. According to the U.S. Commission on Civil Rights report, there was a fivefold increase in the number of people jailed before trials between 1970 and 2015, with more than 60% of these defendants being detained prior to trial because they could not afford to post bail. A 2022 federal civil rights report found that courts tend to impose bail amounts that are 35% higher for black men compared to white men, and 19% higher for Latino men compared to white men.
Despite efforts to eliminate cash bail in other states over the years, such as Alaska, New York, and California, those states have either rejected eliminating cash bail or rolled back previous reforms, making Illinois the only state to strike it down entirely.
Impact on Electronic Monitoring
Many advocates for this law have expressed concern that the end of cash bail could lead to more electronic monitoring of criminal defendants in the time before their trials. Because judges will no longer have the option to impose a cash bail, supporters of the law worry that judges will impose more electronic monitoring as a substitute for pretrial incarceration.
However, Cara Smith, the director of the Office of Statewide Pretrial Services (OSPS) refuted this claim, stating her office is not urging judges to order electronic monitoring as a substitute for cash bail. According to Smith, the law eliminating cash bail discourages electronic monitoring use because judges are required to apply the “least restrictive conditions” necessary to ensure the criminal defendant appears at hearings while protecting victims of the crime from imminent threat of physical harm.
Still, the office announced that by September 18th active GPS monitoring would be available to all counties at no cost to the county or defendant. The OSPS supports the use of electronic monitoring as a strategy for reducing jail populations, as well as monitoring domestic violence and other high-risk offenders to protect victims.
With 70 Illinois counties managed by OSPS with about 100 individuals on electronic monitoring each, it seems likely that the number of criminal defendants being electronically monitored in Illinois will increase as Illinois becomes the first state to enter a post-cash bail era in its criminal justice system.
