Bailout: Abolishing Cash Bail to Jettison Low-Level Offenders Crowding Our Nation’s Jails While Making Communities Safer

Bailout: Abolishing Cash Bail to Jettison Low-Level Offenders Crowding Our Nation’s Jails While Making Communities Safer

Andrew Larson, Staff Editor

October 26, 2024


For some Americans, the concept of cash bail may be limited to an experience of their thimble avatar inauspiciously landing on the corner Go to Jail space on a Monopoly board. For countless others, the realities of cash bail present an insurmountable barrier preventing release from county and city jails across the country. Every day, approximately 700,000 Americans are held in jails awaiting trial or plea deals; 60 percent of whom suffer incarceration because they cannot afford to pay the secured bond to await their next court date unbound by law enforcement.[1]

Jails are predominately populated with people who cannot afford to pay cash bail to secure their release. As a result, American tax payers spend approximately $38 million dollars a day, tallying close to $140 billion a year on pretrial detention.[2] As a growing choir of dissenting voices criticize the entrenched cash bail system, beacons of change emit from legislatures across the United States. In the last few years, several states passed progressive bills modifying their pretrial detention laws (New Jersey, New Mexico, New York, and the District of Columbia). One state, Illinois, completely banned cash bail.[3]

Opponents of cash bail argue that pretrial detention resulting from unpaid secured bonds are unjust, ineffective vestigial appendages of 13th-century English common law with shameful roots in American slavery.[4] Those accused of an offense—not convicted—must pony up hundreds or thousands of dollars to avoid being locked up while awaiting their court appearance. Cash bail is a “faulty and unreliable metric to determine whether someone could be a danger to their community and whether they pose a flight risk.”[5] Indeed, the ability to pay cash bail may be more indicative of a person’s resources to flee rather than to appear in court at a subsequent criminal proceeding.[6] Studies also report higher rates of recidivism stemming from the negative effects of pretrial detention.[7] In sum, the jailhouse gates become a revolving door for those unable to make bail and subjected to the experience of incarceration.

Pretrial incarceration can yield devastating consequences, including job loss, inability to care for children, and housing forfeiture. These consequences disproportionately impact minority and lower income populations.[8] Just two days in jail can increase the likelihood and length of incarceration, reduce economic viability, induce recidivism, and create health risks for largely low-risk defendants.[9] Sadly, judges are statistically more likely to hand down an active jail sentence for individuals who have served pretrial detention.[10] Of the 60% of jail inmates who cannot afford cash bail, many may wait weeks, months, or even years for trial, clogging county and city jails. Meanwhile, jail stays have gotten longer, further subjecting at-risk groups to the negative effects of incarceration. Between 1983 and 2013, the average length of jail visits jumped from 14 to 23 days.[11] Many defendants awaiting trial plead guilty in plea arrangements—irrespective of their culpability in an alleged defense—because they are desperate to get out of jail.[12] Many of these plea arrangements exchange time served (largely an artifact of the inability to pay) for guilty pleas to lesser offenses, cementing criminal offenses on a person’s record.

As the choir of voices admonishing the injustices of the cash bail system around the country swell, several states and organizations have taken various measures to address this problem. However, most of these measures fall short of abolishing cash bail. Vermont, for instance, passed legislation that prohibits the levying of cash bail only when an individual has been “charged with an expungement-eligible misdemeanor” while leaving the door open for judicial discretion to continue to set cash bail.[13] Private organizations have taken a work-around approach by establishing bond funds—whereby bail amounts are paid out of a collective pool of capital.[14]Money refunded after court appearances is then redeposited into the bond fund, creating a recyclable cash purse for petitioning individuals looking to secure cash bail.[15]

Only one state has abolished cash bail. Beginning September 18, 2023, Illinois’ Pretrial Fairness Act (PFA) “eliminated the use of cash bail in all criminal cases [and] prohibited pretrial detention altogether for most defendants.”[16] Supplanting the requirement to cough up cash to avoid pretrial detention, the PFA institutes a series of new timelines and measures to reduce the number of jail detainees awaiting trial. Beginning with law enforcement, the PFA authorizes officers to issue citations for many low-level offenses rather than jailing offenders.[17] Currently in Illinois, “cite and release” is presumed for low-level misdemeanors.”[18]Next, the PFA requires that individuals who are detained for higher level offenses must appear before a judge within 48 hours.[19] Conversely, many states avoid such a tight timeline for first appearances with vague statutory language requiring only that defendants face a judge “without undue delay.”[20] Furthermore, the PFA places the burden on prosecutors to prove “by clear and convincing evidence [that a] condition of release is necessary” to jail a person pending trial.[21]

As the first state to abolish cash bail, Illinois’ move may seem unprecedented. However, the PFA merely echoes what the federal criminal courts accomplished in 1984, under the Federal Bail Reform Act, by implementing hearings to weigh a defendant’s danger to a community and issuing non-financial conditions for pretrial release.[22] Mirroring the federal system, Illinois courts are now tasked with risk assessment hearings to determine whether to release or hold individuals accused of offenses in lieu of cash bail.[23] One year after implementation of the PFA, this judicial assessment requirement has been associated with more thoughtful and substantive hearings focused on relevant case issues and evidence.[24] Subsequently, judges predicate pretrial detention on specific facts and circumstances rather than a template cash bail order for conditional release.[25] Risk assessment hearings empower Illinois courts to detain accused defendants who may have otherwise posed a risk to the community, while drastically reducing the number of pretrial inmates who have been charged with low-level offenses. Keeping low-level offenders out of jail minimizes the adverse effects of pretrial detention and leads to safer communities.[26]

Proponents of cash bail often cite community safety as a principal concern to preserve the money-for-release system.[27] However, data suggests that the implementation of risk assessment hearings instead of cash bail is making Illinois safer.[28] For example, under the cash bail model, suspects in domestic violence cases who could pay to secure their release were free to return back to their previous victims. Now, under the PFA, victims receive higher levels of protection due to statutory requirements to notify victims of a defendant’s release.[29] Additionally, risk assessment protocols empower judges to deny bond to offenders charged with misdemeanor domestic assault—a group previously released on cash bail.[30] Since the PFA was enacted, opponents’ concerns about public safety issues related to the abolition of cash bail have been unsubstantiated.[31] In fact, one year after the PFA became law, Illinois has seen reduced failure to appear rates and a 12 percent drop in violent and property crime, evidencing that the PFA is bolstering defendant accountability while making communities safer.[32] 

In sum, the Illinois law has replaced the capacity to pay for pretrial freedom with substantive measures that assess the accused’s potential threat to society while awaiting trial. As a model for other states, the PFA shirks centuries of unjust policy, replacing a regressive monetary measure of a person’s flight and danger risks with evidence-based risk assessment. By focusing on the nature of the alleged offense, a defendant’s specific case, and the relevant evidence presented in a hearing, jurisdictions can better evaluate which individuals should be detained pretrial—a metric that, historically, has failed to be qualified by cash bail.

[1] Report: The End Money Bail Act, Data for progress (2023), https://www.dataforprogress.org/end-money-bail.

[2] Id.

[3] No Cash Bail States 2024, World Population rev. (2024), https://worldpopulationreview.com/state-rankings/no-cash-bail-states#google_vignette.

[4] Natasha Brown, Note, Innocent Until Proven Guilty: Unless You’re Poor. Righting a Systemic Wrong Under the Pretrial Fairness Act. 57 UIC Law Rev. 291, 295 (2024); Ending Cash Bail Keeps Families Together, Communities Safe and Strong, Shriver Ctr. on Poverty Law (June 3, 2004), https://www.povertylaw.org/article/ending-cash-bail-keeps-families-together/.

[5] Id. at 294.

[6] Paul B. Wice, Freedom for Sale: A National Study of Pretrial Release 5 (1974).

[7] See Will Dobbie et al., The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges,” 108 Am. Econ. Rev. 201-240 (2018).

[8] See Norma Cantu, The Civil Rights Implication of Cash Bail, U.S. Comm’n on Civ. Rts. (2022), https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf.

[9] Incarceration’s Front Door: The Misuse of Jails in America, Vera Inst. of Just. (2015), https://www.vera.org/downloads/publications/incarcerations-front-door-summary.pdf.

[10] Supra note 1.

[11] Supra note 8.

[12] Supra note 9.

[13] 13 V.S.A. § 7551(a)(1)(B).

[14] E.g., The State of Bail Reform, The Marshall Project (Oct. 30, 2020), https://www.themarshallproject.org/2020/10/30/the-state-of-bail-reform.

[15]Id.

[16] Patrick Griffin et al., The First Year of the Pretrial Fairness Act, Loy. Chi. Ctr. for Crim. Just. (Sept. 24, 2024), https://pfa-1yr.loyolaccj.org/; 725 Ill. Comp. Stat. 5/110-1.5.

[17] 725 Ill. Comp. Stat. 5/110.

[18] Lisel Petis, A Model for the Nation? Tips from Illinois on Eliminating Cash Bail, R Street (Sept. 18, 2024), https://www.rstreet.org/commentary/a-model-for-the-nation-tips-from-illinois-on-eliminating-cash-bail/.

[19] 725 Ill. Comp. Stat. 5/110-2(b);

[20] See Conn. Gen. Stat. § 54-63(c); Haw. R. Penal P. Rule 5; Ind. Code Ann. § 35-33-7-1; Iowa Code § 804.21-804.22; Kan. Stat. Ann. § 22-2901; Ky. RCr Rule 3.02; MCR 6.104; Mont. Cod Ann. § 46-7-101; N.M. Stat. Ann. § 31-1-5; N.Y. CLS CPL § 120.90; N.D.R. Crim. P. Rule 5; Okla. Stat. tit. 22, § 1105; Pa. R. Crim. P. 516; R.I. Super. R. Crim. P. 5; S.D. Codified Laws § 23A-4-1; Tenn. R. Crim. P. Rule 5; Utah Code Ann. § 77-7-23; V.R.Cr.P. Rule 3; Va. Code Ann. § 19.2-80; W. Va. R.Cr.P., Rule 5; Lisel Petis, Navigating Bail Reform in America: A State-by-State Overview, R Street 64 (Feb, 2024), https://www.rstreet.org/research/navigating-bail-reform-in-america-a-state-by-state-overview/ “The phrase ‘without necessary delay,’ which is used in many states, lacks clarity and invites a variety of interpretation. Introducing a defined time limit of 24 to 48 hours ensures a swifter delivery of justice, preventing unnecessary delays in future court proceedings.”

[21] 725 Ill. Comp. Stat. 5/110-2(b).

[22] James G. Carr, Bail Bondsmen and the Federal Courts, 57 Fed. Prob.: A J. of Corr. Phil. and Prac., 9, 9 (March 1993).

[23] 725 Ill. Comp. Stat. 5/110-4(b).

[24] Supra note 15.

[25] Id.

[26] Lisel Petis, Navigating Bail Reform in America: A State-by-State Overview, R Street 64 (Feb, 2024), https://www.rstreet.org/research/navigating-bail-reform-in-america-a-state-by-state-overview/.

[27] See Allie Preston, The Case for Cash Bail Reform, CAP20 (Sept. 19, 2022), https://www.americanprogress.org/article/cash-bail-reform-is-not-a-threat-to-public-safety/.

[28] David Pierce, New SAFE-T-Act Enhances Protection for Domestic Violence Victims in Illinois, News Channel ABC 20 (Oct. 28, 2023), https://newschannel20.com/news/local/new-safe-t-act-enhances-protection-for-domestic-violence-victims-in-illinois.

[29] Id.

[30] Id.

[31] Megan Hickey, End of Cash Bail in Illinois Has Not Resulted in More Crime, But Has Impacted Court Systems, CBS NEWS CHI. (Sept. 12, 2024), https://www.cbsnews.com/chicago/news/cash-bail-illinois-one-year-later/.

[32] Supra note 17.

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