What is Cash Bail in Illinois?
Landmark Illinois Law Ends Cash Bail
On January 22, 2021, Governor J.B. Pritzker signed a landmark criminal justice reform package that makes Illinois the first state to completely eliminate cash bail. Illinois House Bill 3653, The Pretrial Fairness Act, also includes other major changes to the state’s policing and adjudication policies to address racial disparities. Governor Pritzker hails the passage of this bill as a “substantial step toward dismantling the systemic racism that plagues our communities.” The law eliminates detention based on wealth, replacing it with a strict process for determining the risk of flight or violence. It will be slowly phased in slowly over two years, going fully into effect in 2023. One thing is clear, prosecutors and criminal justice attorneys in Illinois will have their hands full adjusting to these huge changes.
What Is Cash Bail?
Cash bail is money paid by a criminal defendant in exchange for being released instead until their next court appearance. If the defendant skips bail, he forfeits the money. Judges sometimes have a great deal of discretion over the amount of bail and whether to require it at all based on the charges, an assessment of the defendant’s “flight risk,” and other factors. If the defendant doesn’t have enough money to pay the bail, they can seek funding from a bail bond company. Bail bond companies require a ten to fifteen percent of the bail amount plus collateral such as a car or home. If the defendant doesn’t have sufficient funds for the bail bond premium and/or no valuable collateral, the defendant will be forced to remain in custody until the next court appearance. This means that regardless of the crime alleged, people with less money are more likely to spend time in jail. In addition to reducing the amount of time a defendant can spend with their Illinois criminal attorney planning their defense, being behind bars causes needless trauma for defendants of modest means.
Current Bail System in Illinois
The Illinois Bail Reform Act of 2017, had already made significant changes to the traditional way courts set bail. The Act specified a large number of non-violent crimes where bail would be non-monetary, meaning that defendants would not have to post any money to be released on their own recognizance. Non-monetary usually means that the defendant must comply with certain conditions rather than paying cash. Some examples are the use of SCRAM alcohol monitoring devices for persons arrested for DUI charges or a requirement that the defendant keep a distance from a person that’s accused them of abuse. For offenses where bail could be imposed, there were reforms to make it more slightly less burdensome such as an entitlement to a bond reduction hearing within thirty days and reducing the amount of bond required by $30 a day until it reaches zero.
How Has The Cash Bail Law Changed?
On January 1, 2023, Governor Pritzker proudly announced that the Pretrial Fairness act would completely abolish monetary bail. In the interest of public safety, defendants charged with the following crimes will be held without bail:
- First-degree murder;
- Sexual assault;
- Arson;
- Felonies involving force or the threat of force;
- Stalking and aggravated stalking;
- Domestic abuse;
- Some gun crimes and
- Felonies for a defendant that’s a likely flight risk.
The new law puts the burden on the state to prove that a defendant needs to be detained, rather than requiring the defendant to show why he should be released. The Commission on Pretrial Practices has determined that the non-monetary conditions for release must be the least restrictive method possible that ensure that the defendant will appear and that the community will be safe.
Proponents of Criminal Justice Reform Applaud the Change
Bail reform has been a central issue for the criminal justice reform community due to its disproportionate impact on low-income people and people of color. They cite the negative impact of being forced to wait for months or even years in jail on defendant’s cases, making them much more likely to take a plea to avoid a higher charge and longer sentence. The racial disparity statistics for who’s held in jail before trial with the traditional bail system are shocking. According to the United States Department of Justice (DOJ), unconvicted defendants now compromise 65% of the total national jail population with young African-American men 50% more likely to be detained than others. Proponents cite the tragedy of Kalief Browder, an African-American youth that was held in New York at Riker’s Island for three years on a charge of stealing a backpack. He was so traumatized by his experience that he committed suicide two years after the charges were dropped and he was released.
Opponents Cite Public Safety Concerns
Opponents are concerned that proper mechanisms are not in place to ensure that defendants that are dangerous are not released. They cite the tragedy of Caitlynne Infinger, a twenty-year-old pregnant woman who was allegedly killed by her husband just two days after he was released from jail on domestic violence charges. Some bail reform bills throughout the country have taken away the discretion of judges to set bail for so-called minor crimes, forcing them to be released into the community. For example, in New York, judges are not allowed to set bail for a long list of misdemeanors and felonies including stalking, assault without serious injury, burglary, and certain types of robbery and arson. This happens in large part because of outdated concepts that require judges to consider flight risk, but not public safety. Some opponents also cite loss of revenue to municipalities from bail and the impact on the bail bond industry.
Illinois Criminal Charges Defense Attorney
The Pretrial Fairness Act is a well thought out piece of legislation that the criminal justice community believes has great potential. There will be many changes in regulations and procedures over the next couple of years as it is implemented. If you’re accused of a crime, it’s important to work with an experienced and caring Illinois criminal charges defense attorney who carefully follows changes in the law, and that’s willing to go the extra mile for your case.
