Bail reform: The impact cash bail has on minority populations
Updated: May 20
In an important first step to making substantial reform to the American criminal justice system, Illinois became the first state to abolish cash bail in February 2021. Some other jurisdictions have taken steps to get rid of cash bail, and the District of Columbia outlawed cash bail in the early nineties. However, with this new legislation, Illinois becomes the first actual state to complete eliminate cash bail all together.
While some other jurisdictions and states have taken steps to get rid of cash bail for a large percentage of cases, in addition to the District of Columbia getting rid of cash bail in 1992, Illinois became the first state to completely eliminate cash bail all together with the new legislation.
Illinois Governor JB Pritzker cited the disproportionate impact that cash bail has on people of color and low-income individuals as a main reason behind the bill, which also includes various other criminal justice reform measures. The purpose of cash bail is assurance that a defendant will appear for their court hearing after being released from jail, or else the money will not be returned to the defendant. Typically set by either a judge or standardized bail amounts per offense, the amount set for bail can range from hundreds to thousands of dollars depending on the charge. Ranging from $500 - $20,000 for petty theft or $100 – thousands for protesting, bail amounts can require an upfront payment of a large sum that many people do not have quickly available. If an individual, or the individual’s friends or family, does not have the money available to post bail, they either have to wait in jail for their hearing or trial or attempt to use private companies to post bail for them, if the use of private bail bondsmen is legal in the state.
Called the “poor people’s tax”, cash bail has extremely serious consequences for those who do not have the means to post bail. In addition to having to stay in prison for weeks or months while awaiting trial, defendants who cannot afford bail are nine times more likely to plead guilty to misdemeanor charges. Being locked up in jail while awaiting trial also can lead to additional consequences, detainees can lose their jobs, their children, and their income, along with the long lasting trauma that jail can inflict on those detained for long periods of time.
The disparity of those who are in jail pretrial because they are unable to pay bail, is well documented. According to the Prison Policy Initiative, nearly 74% of people in jails are currently being held pretrial, meaning they have not actually been convicted of a crime yet. Many of them are awaiting trial in jail because they cannot afford to post the bail amount, the median of which is about $10,000 for felony crimes. Nearly 7 in 10 detainees in jail pretrial are people of color, compared to those who are white.
Critics who oppose legislation ending cash bail often claim it will result in allowing “criminals to run free while out on bail.” However, data from jurisdictions that have already reformed the bail process counter that claim, as seen in Washington D.C., where 91 percent of defendants release pretrial appear at their trial date. Additionally, there has been no indication or “data that changes to the bail process have led to an increase in crime,” according to Director Preet Chauhan of the Date Collaborative for Justice at John Jay College of Criminal Justice.
The current bail measures in many US states punishes those who are not able to pay their way out of jail while awaiting their court hearings, while allowing those who have access to large amounts of money to be able to prepare for trials from their homes. Illinois’ decision to pass legislation outlawing the use of cash bail will allow for a more equitable and fair criminal justice system and process, especially for those from lower income backgrounds and minority groups who have been negatively impacted by the current bail system.
While eliminating cash bail is an important step to take, one that additional states hopefully soon follow, further reform is needed to combat the systemic racism that is continually present across the nation. The Illinois reform does not officially take place in the state until January 2023, which allows time to work around any challenges the change may present and figure out how to best implement the policy.