By Audrey Sawyer
CHICAGO, IL — The Illinois Supreme Court last month upheld the Illinois Pretrial Fairness Act, which eliminates cash bail in the state after the bill was approved by the legislature following advocacy from a wide coalition that successfully demonstrated the public safety benefits from eliminating cash bail. This goes into effect September 18.
A discussion was held over ZOOM this week to talk about the historic moment and what lessons can be adopted nationwide. The panel included of IIP (the Institute for Innovation in Prosecution at John Jay College)Executive Director Rachel Marshall acting as the moderator, State Attorney Kim Foxx, Briana Payton (Chicago Appleseed Center for Fair Courts) and Sharlyn Grace (Cook County Public Defender’s Office).
State Attorney Foxx began by stating how she had been concerned about the overcrowding in Illinois after a visit to Cook County Jail during her high school years of the 80’s, noting the majority of individuals incarcerated were there for non-violent offenses, but that they could not afford their bail bonds.
Foxx added, “it was a priority of mine to address cash bail. We looked at misdemeanor charges and even looked at non-violent felony charges. Our job is to ensure they come back to court, not pretrial punishment because of poverty. Some cases saw people were in jail for even $1,000 or less.”
Foxx also emphasized the Constitution itself discusses excessive bail with the Eighth Amendment, which states that “excessive fines shall not be imposed.”
Grace said, “Our statutes were already quite good in Illinois. Illinois already eliminated the private, for profit bail bonds industry in 1963 . We had a system where accused people paid 10 percent of the bond amount set directly to the court. We had a statute saying that the amount of bond should be considered, the amount ought to not be oppressive, but the majority of people in any county jails were there pretrial.
“National average is around 67 percent pretrial detention, but over 90 percent in Illinois jails, this is an issue across the state despite being driven by Cook County. Some county decisions decided to get together over ZOOM. The target is monetary bonds as the main driver of pre-trial detention.”
Reportedly, 85 percent of people in Cook County jail needed $10,000 or more to get out, even though Illinois lacks a private, for profit bail bonds industry.
Payton pointed out racial disparities, noting Black and Brown (alongside poor) are always overrepresented in jail despite low populations. In Cook, Black people make up less than 25 percent of the population, but 75 percent of those in jail are Black.
Grace noted, “There are no reputable studies conducted (if bail is effective), but there might actually be an increased reason someone does come to court if there is no cash bail. In fact, it is shown that the likelihood of an accused appearing in court either stays the same, or even improves.”
When Marshall asked what a new system would look like without cash bail, and how pretrial release will change under the new law, Grace made the argument prior statutes Illinois had were not effective.
“In a new system, each person is given a robust hearing. The hearing presents evidence and proves either person is a safety risk to the community or they are at risk of evading prosecution. This won’t be for every case, but that the Fairness Act will reply to the staggered court process, and will avoid the 6-8 hours of fingerprinting in certain misdemeanors at the lowest levels, or lower level felonies, instead issuing a citation or releasing with a court date (in felony cases),” Grace said.
Foxx said even taking a plea will stick with an accused for life and have long term consequences, such as impacting parental or custody rights, or job security.
Marshall questioned which arguments were most effective in ending cash bail, and what didn’t work.
Payton said it was community involvement, a common theme throughout the discussion in general. Payton pointed out that: “People showed even in the midst of the pandemic. 2020 played an instrumental role with George Floyd, Breonna Taylor in getting people more involved and vocal.”
Payton argued that to have an effective argument to end cash bail, you must know the group you are meeting with because different groups and demographics are going to have different concerns, such as some prioritizing victim rights, others prioritizing parental rights, while others may want to know about law enforcement’s role, adding, “Data has shown zero negative impact on crime rates.”
When Marshall asked about any shifts noticed aside from the formed coalition, Foxx said it was the community and stakeholders together that had influence. They had written a letter to the Illinois Supreme Court.
Foxx: “We applied as a county, so we all came together as a united voice, not as individuals. We had combined all of our data together to speak as a group.”
Similar comments came from Payton, who said, “It cannot be overstated the role of community engagement…hearings existed on this topic due to the public’s interest in ending cash bail, even during the pandemic.”
Payton said there has been a ton of misinformation flying around but people are largely supportive of ending cash bail once they have their questions answered.
Foxx ended by stating, “To be on the vanguard of reform by ending something like cash bail, if you didn’t believe it was possible to be done, when resistance came, there would be an instinct to say things are moving too fast. This taught us that everything is possible, that it requires a commitment even to maintain in the face of adversity.”
Foxx added, “When the bill was signed, the next year being an election year, the politicization was timed, with an effective misinformation campaign (but) we didn’t retreat. You need a certain level of courage and understanding that something is going to happen. We have to do the right thing for the right reason at all times, that is when progress gets done. The impossible is always possible.”
