Illinois could eliminate cash bail as part of the SAFE-T Act. The Illinois Supreme Court has issued a stay on the measure until the court hears arguments on it.
Under the SAFE-T Act, if an individual is arrested, a judge would decide whether the accused awaits trial in jail or not. Pretrial detention would no longer depend on whether that individual could afford to post bail. The current system has tied finances to freedom, contributing to economic disparity in the criminal justice system.
The ACLU of Illinois has supported the SAFE-T Act.
“People are stuck in jail for days, weeks, months, and sometimes even years at a time, not because of any threat to another person that they’ve been found to pose, not because they are likely to flee from prosecution, but simply because they cannot afford to pay an arbitrary amount of money that’s been the price tag that’s been set on their freedom,” Ruddell said.
Research indicates that pretrial detention detrimentally affects people. Statistically, the longer a person is in jail pretrial, the more likely they are to be rearrested later on, according to a recent Core Correctional Solutions study.
“It doesn’t take long for people to begin suffering negative consequences like job loss,” Ruddell said. “if you were arrested and held in jail, and you didn’t show up at your job the next day, you probably wouldn’t have that job for very long.”
While proponents of the change say eliminating cash bail is a solution, state attorneys from 65 counties filed a lawsuit over the legislation. A Kankakee County judge ruled parts of the law unconstitutional, so a cash bail system will remain in the counties listed on the lawsuit.
Jeffrey Clayton, the executive director of the American Bail Coalition, agreed with the perspective that eliminating cash bail is contradicts the state constitution.
“It’s a question of whether we want people to have at least the opportunity to get out or whether we’re just going to condemn people based on their future behavior and say, ‘We just think they’re too dangerous to let out,’” Clayton said. “That’s never been really the constitutional tradition in the United States until probably the 1980s during the Reagan administration.”
According to Article 1, Section 9 of the Illinois Constitution, “all persons shall be bailable by sufficient sureties,” with exceptions.
Cash bail is one kind of surety, a guarantee that the accused shows up for trial – even if only to get their bail money back. Though there are many iterations of a surety if someone doesn’t have the cash on hand. For example, with bail collateral, someone can offer their property in place of money.
“For the average person, you want the right to bail,” Clayton said. “You don’t want the state to say we just don’t like Jeff, and he’s going to jail like we don’t believe in that.”
Other critics – including leaders in law enforcement – have speculated about the correlation between bail reform and crime rates. They warn about the risk of releasing people who will become repeat offenders because a judge decides not to detain them before trial.
While crime did increase in New York since the state’s bail reform measure passed in 2019, the connection is not clear.
The New York City Comptroller pointed out that “the share of released people awaiting trial who are rearrested remained roughly the same before and after implementation of bail reforms,” according to state data.
Also, the crime spike wasn’t specific to states with bail reform. It was nationwide, during a pandemic.
