Illinois Begins Decriminalizing Poverty, Balancing the Justice System
By Alexus McNally, Esq. (Jr. Advocate)
Effective September 18, 2023, Illinois state courts will be prohibited from jailing individuals who are accused of crimes simply because they cannot afford to pay bail while they await trial. On July 18, 2023, the Supreme Court of Illinois published a monumental opinion that significantly altered the criminal justice system and corrected the bail practice which has resulted in differential treatment between the rich and the poor, and disproportionately harmed people of color. The Court declared the controversial Illinois Pretrial Fairness Act as constitutional, allowing the elimination of the use of cash in exchange for pretrial release. Illinois is the first state in the nation to end cash bail as a condition for pretrial release. The move cements the Pritzer-Stratton administration’s legacy of advancing criminal justice and racial justice reform and serves as a bellwether for broader change across the nation.
Contrary to popular belief, the Illinois Pretrial Fairness Act does not open up the jail cells and allow dangerous and violent suspects to terrorize the populace. Under the Act, people charged with crimes can still be held in custody pending trial. The difference is that payment is just no longer required for a person’s release. In line with the U.S. and Illinois state constitutions, judges are still required to order the detention of individuals that pose a high risk of willful flight or a specific threat to someone else. Judges are required to consider numerous factors before granting pretrial release, including the nature and circumstance of the offense charged and the history and characteristics of the accused. Individuals currently detained will be able to request a hearing for their pretrial detention to be reexamined by a judge.
Abolishing cash bail is critical for guaranteeing equity in criminal justice systems, as generally, only poor people are languishing in pretrial detention. Currently, in the United States, a person’s experience with the criminal justice system drastically varies depending on their socioeconomic status. A person with financial means can buy their pretrial freedom, liberating them to keep their job and live at home while preparing their defense. People without financial means are forced to languish in detention. Their incarceration has a snowball effect, spurring the potential loss of employment and housing, family disintegration, and gaps in education. When a person is arrested and unable to pay bail, they can stay in jail for days, weeks, months, or years until their case is resolved. They are unable to care for dependent relatives. They may lose custody of their children. While they sit in jail, they are confined to tight quarters, which are often unsanitary and lack adequate medical treatment, exposed to disease and other health risks. The desperation caused by the mounting ramifications of pretrial detention, forces people to take plea deals, even when they are not guilty of the crimes they are accused of committing. Between 90% and 95% of all criminal cases are resolved through plea agreements, rather than through a trial.
Wealthy people are almost never subjected to detention while they await their trial. Disgraced Theranos founder, Elizabeth Holmes, was free for more than three years after she was indicted and before her conviction because she was able to afford her $500,000 bond. Under the Illinois Pretrial Fairness Act, a person’s pretrial release will no longer hinge on their ability to pay for their freedom.
On any given day in the United States, 1.9 million people are incarcerated across 6,000 correctional facilities; more than 400,000 of these people are awaiting their trial. Between 1983 and 2019, local jail populations nearly tripled, growing approximately 195%, largely due to the increased use of pretrial detention. The majority of individuals incarcerated are poor. Two-thirds of people detained in jails report annual incomes under $12,000 prior to their arrest.
Criminal justice system reform is often connected with racial justice due to the current policing, prosecutorial, and incarceration practices that disproportionately impact Black and Brown people. Black people in America are incarcerated at more than 5 times the rate of White people. In Illinois, Black people make up 56% of the incarcerated population, despite comprising only 15% of the state's total population. Black people are typically assigned higher bail amounts than White people. Additionally, high bail amounts lead to longer times in jail and a higher likelihood of incarceration as a sentence. The Illinois Pretrial Fairness Act levels the playing field for Black and Brown people, allowing individuals—presumed innocent by law—to be free while preparing their defense. The human impact of this Act cannot be overstated. Through the abolishment of cash bail, individuals accused of non-violent acts will be able to return to their families and care for loved ones; maintain their employment and housing; and avoid exposure to health risks from detention facilities.
Fear-mongering by critics of bail reform contributes to public misconceptions of crime. In New York, several counties actually recorded a drop in crime when they released more people pretrial. Nevertheless, some politicians continue to push false narratives that crime will surge if cash bail is eliminated. Numerous studies have shown that releasing people pretrial does not harm public safety. In fact, no state or city has seen a rise in crime as a result of reducing or eliminating their use of money bail. Furthermore, research has found that pretrial detention actually increases the odds of a person being re-arrested in the future. Despite this evidence, many politicians continue to criticize the Pretrial Fairness Act, as it is politically expedient to side against the abolishment of cash bail and claim to be tough on crime.
The excessive use of pretrial detention is found in many countries around the world, however, the United States incarcerates more of its population than any other nation, including nations with similar or higher crime rates. Illinois, with incarceration rates below the national average, imprisons people at more than double the rates of the United Kingdom, Portugal, Canada, and France. Other U.S. states and countries would benefit from eliminating cash bail as a precursor for pretrial release. U.S. taxpayers spend nearly $14 billion per year on pretrial detention. This money could be better spent on resources that enrich communities and address the root causes of criminal justice system involvement. Abolishing wealth-based detention brings Illinois closer to decriminalizing poverty and guaranteeing the presumption of innocence until proven guilty.
It is my hope that other states do the same.
This article is featured in COE®️ Excel! Magazine, Edition XIV.
