One state looks to be the first to end cash bonds — and the wealth-based system of freedom it creates

CHICAGO — When a Cook County court judge set Timothy Williams' bond at $10,000 for a traffic charge, he knew he would be going to jail. There was no way, even after gathering everything he had, that he could come up with that amount of money.

So for the next two months, still legally innocent, Williams, 34, waited in jail.

On the other side of the bars were his wife, Brittany Williams, their newborn and three other children — all under the age of 10. The couple had just started a small business and moved to a condominium in the suburbs outside of Chicago.

Not long after Williams’ incarceration, his wife began struggling. She wasn't able to manage both the new company and children, leading to the business’s eventual collapse. Without a steady income, she lost their home and had to move in with her sister-in-law. Timothy Williams was finally released after a judge lowered his bond to $5,000, which was paid for by the Chicago Community Bond Fund.

"It devastated our family," Brittany Williams, 30, said. "People don't understand how severe it is to put someone in jail just because they can't pay their way out. And it doesn't just hurt them; it hurts every person connected to them."

But the long-standing practice may come to an end as Illinois is expected to pass legislation that will fully end the use of money bond, making it the first state to explicitly and entirely end a system of wealth-based freedom that has not only disproportionately affected low-income populations but also communities of color. While other states have struggled to successfully implement similar bail reform measures, criminal justice advocates say Illinois may have gotten it right.

The Illinois Pretrial Fairness Act passed the state legislature last month and is expected to be signed into law by Illinois Gov. J.B. Pritzker in the coming weeks.

The act, more than 300 pages long, is one of the most comprehensive pieces of legislation that not only abolishes the cash bond system but also aims to end mass pretrial incarceration, said Sharone Mitchell, director of the Illinois Justice Project, a member organization of the Coalition to End Money Bond that was heavily involved in drafting the legislation.

"We live in a system today where we use money as the sole determining factor in determining whether somebody is going to be in jail or out of jail," he said. "Using money instead of risk is clearly not what we want to do."

Under the Illinois Pretrial Fairness Act — which would not be implemented until January 2023, after a two-year rollout plan — charged individuals will either be held or not held, eliminating any element of money. Along with the end of cash bond, there will be a new, strictly defined process to guide the decision-making for detention.

“With or without money bonds, the vast majority of people accused of an offense come back to court. Options like court reminders, transportation assistance or flexible scheduling are successful at mitigating the issue of the accused being late to or missing a court date,” Mitchell said. “Those options also avoid the harm inflicted when the system pulls millions of dollars per year out of mainly Black and brown women’s pockets who come from communities that are already struggling.”

But bail reform has not been an easy feat to implement in other states that tried to enact similar legislation. Without clear and narrow guidelines for when bail could be used, judges in some states were preventively detaining defendants in jail without any option of pretrial release. In other jurisdictions, courts have been called out for utilizing risk assessment tools that have been criticized for being flawed and racially biased.

But Illinois' bill accounted for those mistakes, Mitchell said: "We looked at what happened all over the country and used it to buttress the bill with as many fail-safes as possible to combat countereffects. We tried to take in the things that worked and try to abandon the things that didn’t, and it takes a complex bill to get that done."

“It’s the farthest any legislation has come, and I think, dare I say that it's the most progressive piece of legislation that has been passed,” Mitchell said.

A broken system

Despite a very visible public outcry to move away from a wealth-based detention system, bail has been the system many state and local jurisdictions use to deal with individuals before they go in front of a judge.

Those who can afford to pay bail go home and resume their lives, and, despite being legally innocent, those who cannot wait behind bars.

Nearly half a million people detained in locally run jails across the country were held in pretrial status, according to 2016 data from the Vera Institute of Justice, a nonprofit research and policy organization that supports pretrial reforms.

"When you set a price for release for people who are charged with a particular kind of offense, that immediately creates two different outcomes for people with money and people without money," said Lauryn Gouldin, a professor at Syracuse University College of Law. "In that way, it's just an automatic wealth-based detention system, not one based on risk."

Without a trial or verdict, these individuals wait in jail, sometimes for several months, losing jobs, homes and relationships in the process, she said. Gouldin added that it makes it more likely that these individuals will also plead guilty just to get out of jail.

In the midst of a global pandemic, pretrial detentions have become even more dangerous as Covid-19 outbreaks have run rampant in jails. In Texas, 64-year-old Preston Chaney died of Covid-19 after spending more than three months in jail because he was unable to pay $100 bail after being accused of stealing lawn equipment and frozen meat, the Houston Chronicle reported earlier this month.

It comes as no surprise that poverty plays a seminal part in pretrial jail populations, but wealth-based detentions also have a disproportionate impact on communities of color.

"In large urban areas, Black felony defendants are over25 percent more likely than white defendants to be held pretrial," the Prison Policy Initiative, a nonprofit research and advocacy group, reported in 2019. In addition, research suggests that Black and brown defendants' bail amounts are twice as high white defendants' bail, even though they are less likely to be able to afford it, the organization reported.

While public safety seems to be the trigger word surrounding calls to roll back bail reform, maintaining a money system does not actually manage risk, Gouldin said.

In Chicago, where a large portion of the Illinois jail population resides, a 2020 study by researchers at Loyola University Chicago found that bail reform efforts in Cook County since 2017 have had no impact on new criminal activity or new violent criminal activity by those defendants released pretrial. In fact, the study found that the avoided bond costs actually saved defendants and their families more than $31.4 million in the six months after bail reform was implemented.

Similar outcomes were seen in Washington, D.C., where 98 percent of all people released in 2016 were not rearrested for a new violent crime pretrial.

“If you are setting a cash bail figure because the idea is to incentivize somebody to return to court, over time, for a large population of people, it's just become the reason that they are held in jail. It's not being used as any incentive anymore,” Gouldin noted. “And it can't ever really be an incentive about public safety risk. People don't refrain from committing crimes because they've paid a bail figure. They refrain from committing crimes because they don't want to be caught and punished.”

Where does the Illinois Pretrial Fairness Act fit in?

Many jurisdictions across the country have experimented with some form of bail reform over the last two decades, with varying outcomes.

In New Mexico and Maryland, measures eliminating cash bail without providing clarity to judges on who should be detained led to more defendants in jail without any option of pretrial release at all.

A proposition in California seeking to eliminate the bond system was struck down by voters in a referendum in November with much criticism aimed at the proposition’s use of risk assessment algorithms that have historically carried racial and cultural biases.

"Many jurisdictions have some measure of bail reform that's being considered or has been introduced," Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice, said. "A lot of it is the potentially bad version of bail reform, introducing mandatory use of a risk assessment, expanding the net of charges that can have preventive detention imposed, restricting release on recognizance for certain kinds of offenses."

But there have also been success stories, like in New Jersey, she added. Even though it's technically still available, cash bail is imposed in very few cases, and at the same time, they've enjoyed a significant reduction in crime rates and overall arrests, as well as a much lower rate of pretrial detention.

“But what Illinois is doing with respect to other states is by far the most comprehensive and sweeping that the country has undertaken,” said Taryn Merkl, senior counsel at the Brennan Center for Justice at the New York University School of Law and a former federal prosecutor. “It is one step farther than New Jersey.”

Will it work?

Most simplified, the Illinois Pretrial Fairness Act centers around four main parts, said Mitchell, of the Illinois Justice Project.

In addition to ending money bail, the act creates clear standards for due process that are built around the idea that if a person is going to be in jail, they are there because under the act’s strict definition they were a specific, real and present threat to any person or persons or they were a risk of willful flight, and not for any other reason, he said.

"The act also establishes a data collection system that would allow the state to make evidence-based, fact-based decisions about what should happen and what modifications we may need to make down the road," Mitchell added. "While nothing in the bill automates changes based on certain data milestones, we would be in a position, if changes were necessary, to make more informed decisions."

And the last part re-evaluates the entire bond statute, resolving issues that would force people into incarceration, such as the use of risk assessments, warrant regulation and electronic monitoring.

Once signed into law, criminal justice reform advocates across the country will be watching Illinois closely to see if the measures could potentially be used in other states.

“The bill is very well thought through and has real potential,” Merkl said. “I think that by seeing the experiments in other jurisdictions, Illinois was able to really try to mitigate against falling into some of those same pitfalls.”

But with any progressive reform, Mitchell expects bumps along the way and said the coalition’s main focus now is seeing it through the next two years.

“It looks like we're 49 percent of the way there, and implementation is incredibly important,” he said. “We've got it on paper. Now, we've got to make sure it happens actually in the courtroom.”