A year after end of cash bail, early research shows impact less than many hoped or feared

By PETER HANCOCK
Capitol News Illinois
phancock@capitolnewsillinois.com

SPRINGFIELD – One year after Illinois became the first state in the nation to eliminate the use of cash bail, the impact on the state’s criminal justice system appears to have been far less dramatic than people on either side of the debate had predicted.

That, at least, is the early indication from an analysis of data being monitored by the Center for Criminal Justice at Loyola University in Chicago.

“Jail populations did go down a bit, but nowhere near as much as some people were predicting, and the research suggests that the rate at which people are being released from jail pretrial likely hasn’t changed dramatically,” David Olson, a co-director of the center, said during an interview this week.

“What’s changing is that the means of release are changing,” he added. “People don’t have to post the money, and rather than being released in a few days when they come up with the money, they’re being released in a day or two.”

The law to end cash bail in Illinois passed the General Assembly during a special lame duck session in January 2021. Known as the Pretrial Fairness Act, it was part of a broader criminal justice reform package known as the SAFE-T Act that was backed by the Legislative Black Caucus.

Those measures passed during a period of social unrest that followed the killing of George Floyd at the hands of Minneapolis police the previous summer. But the push to reform the cash bond system in Illinois had begun years earlier.

In 2017, the Illinois Supreme Court formed a Commission on Pretrial Practices, charging it with studying and making recommendations about comprehensive pretrial reform. That commission issued a report in April 2020, a full month before Floyd’s murder.

In that report, the commission noted there was already a “growing national movement” underway focused on eliminating cash bail as a means of securing a defendant’s appearance in court because it resulted in people being detained in jail, sometimes for lengthy periods of time while awaiting trial, solely because of their inability to pay a cash bond.

The report called for a new pretrial system in which only people charged with specific violent offenses would be held while awaiting trial. It further recommended detention only if prosecutors could show they posed an “unmanageable level of risk” that they would commit more offenses while on release and that no conditions or set of conditions could be attached to their release that would mitigate that risk.

The law passed the General Assembly on Jan. 13, 2021. Gov. JB Pritzker signed it into law Feb. 22, prompting a flurry of lawsuits in circuit courts throughout the state by county sheriffs and state’s attorneys who challenged its constitutionality.

In December 2022, Pritzker signed an amendment to the original law that clarified which individuals and what crimes would be eligible for detention.

Read more: Pritzker signs changes to SAFE-T Act’s cash bail provisions

Then, just before the law was set to go into effect later that month, the Supreme Court put it on hold while it considered those challenges. But in a 5-2 ruling in July 2023, the court rejected those challenges, upheld the law as constitutional, and cleared the way for it to go into effect 60 days later, on Sept. 18, 2023.

Read more:Cash bail will end in Illinois as justices rule SAFE-T Act provisions constitutional

In advance of the one-year anniversary of the new law, the Center for Criminal Justice released preliminary data from its ongoing effort to monitor the law’s impact.

One of the first things researchers noticed, Olson said, is that detention hearings now take considerably more time than they used to. In urban counties that handle large numbers of criminal cases, he said, the median length of a detention hearing went from four minutes before the law took effect to 16 minutes under the new rules.

Researchers also noticed a change in the issues discussed during those hearings. Prior to the new law, Olson said, most of the discussion centered on the offense being charged and the defendant’s criminal history. But since the new law went into effect, he said there is more focus on the strength of the evidence against the defendant as well as the risk the defendant poses to other individuals.

Also, he said, judges have begun providing more specific, detailed explanations for their decisions about whether to hold a defendant or place conditions on their release.

“Part of that is likely because this is a new law,” he said. “There are a lot of legal challenges on individual cases as to whether or not the person should have been detained, and it’s likely the judges are trying to establish a clear record for those subsequent appeals. But part of it is also that the expectations of what is considered during the decision to detain are much more clearly articulated in the law, and the judge is likely trying to ensure that they kind of touch on all those things that have to be considered.”

 But one issue that no longer comes up during detention hearings, he said, is money.

“Prior to the law going into effect, statewide about $140 million each year was paid by defendants in the form of posting money to secure their pretrial release,” he said. “No longer are they posting money to secure their pretrial release. So, $140 million is now remaining in the community.”

Meanwhile, Olson said, the research so far has not shown any significant change in the percentage of people who fail to appear for subsequent court hearings. Prior to the new law, he said, the failure-to-appear rate hovered around 17 percent, and since the law took effect it has been “statistically very similar,” at about 15 percent.

In addition, he said, the research so far has not documented any increase in crime as a result of defendants being released without posting bond.

“We can’t say whether it’s had an impact on crime,” Olson said. “But what we can say is, during the first six months of 2023 compared to the first six months of 2024, crime is not up in Illinois. It’s not up in Chicago. It’s not up in other urban areas. It’s not up in rural areas. It’s not up for violent crime. It’s not up for property crime.”

Olson emphasized that the findings so far are only preliminary because the law is still new and many of the most serious criminal cases that have been filed in the last year are still working their way through the court system.

But he said the research so far does appear to indicate that the basic theory behind the old cash bail system – that requiring someone to post a bond was necessary to protect public safety and secure a defendant’s later appearance in court – was fundamentally flawed.

“There’s plenty of empirical evidence that suggests that people posting money isn’t what guaranteed them showing up to court,” he said. “And part of it is to recognize where the money that they are posting comes from. It’s usually not the defendant’s money. It’s their family’s money.”

He noted money used to post bail was often never returned to the defendant under the previous system.

“And also the threat of losing your money if you don’t show up – for many defendants, they realize that they’re not going to see that money ever again, that if they’re convicted, that money is going to be used to pay fines and fees, all of which can still be imposed by the by the court,” he said.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of newspapers, radio and TV stations statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.