Illinois looks to other states for preview of cash bail end

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Illinois was hours away from becoming the first state in the nation to fully abolish cash bail from most of its courtrooms when the Illinois Supreme Court slammed the brakes on it last week, throwing the controversial new law into doubt while the high court weighs its constitutionality.

The delay came days after a Kankakee County circuit judge ruled that individual county court systems may ignore the new policy if they choose. Opponents of the bail reform law, like Illinois Republican Party chairman Don Tracy, celebrated the last-minute roadblock for the 2021 Pretrial Fairness Act.

“This law would have severely limited the ability of judges and prosecutors to keep dangerous criminals off of the streets thereby exporting the epidemic of lawlessness we’ve seen in certain parts of Chicago throughout the rest of our state,” Tracy wrote in a statement after the local judge’s ruling last week.

Academic and judicial reviews of similar bail reform efforts from across the country — including in Cook County — suggest Tracy’s prediction is off. Varying efforts to roll back the use of cash bail in different states have so far led to consistent results, including lower jail populations, low re-offense rates for people released on bond and less jail time for people accused of low-level crimes.

However, reforms have also swelled the numbers of detainees who are held on electronic monitoring and other forms of supervision, and racial disparities in incarceration have held steady or even hardened in jurisdictions with bail rollbacks. Every reform effort was also met with a swift and intense political backlash — sometimes catastrophically for the law.

‘A model for other states’

New Jersey jumped to the vanguard of bail reform in 2014 with a sweeping bipartisan law that nearly eliminated cash bail, pushing judges to use it only in rare cases.

The law required the state’s supreme court to report annually on the impact of the policy, which went into full effect in 2017, and the most recent report showed stark results. By October 2021, just 0.4% of the state’s jail defendants were held on bail of $2,500 or less, compared to 12% at the same point in 2012.

The Garden State’s bail reform coincided with a sharp drop in the state’s pretrial jail population, from more than 15,000 detainees in 2012 to fewer than 8,000 in 2019. By 2021, defendants with violent charges made up about 55% of the state’s jail detainees, up from 47% in 2018.

At the same time, the percentage of defendants who were charged with serious crimes while out on pretrial release did not budge from 2017 to 2019, holding at 13.7%. The proportion of re-offenders soared past 20% in 2020, however, coinciding with the COVID-19 pandemic and a nationwide spike in crime.

The proportion of New Jersey defendants charged with less serious “disorderly person” offenses while on release sank steadily, even through the pandemic, declining from 13.2% in 2017 to 11.4% in 2020. And court appearance rates defied expectations by shooting upward from about 89% in 2017 to 97% in 2020.

“Through its four years of existence, criminal justice reform in New Jersey has performed admirably and with consistency,” New Jersey Supreme Court Chief Justice Stuart Rabner wrote in a letter accompanying the report. “It remains a model for other states to consider, even as it continues to confront the challenges ahead.”

Many of the same results have been seen in other states whose leaders have enacted major bail reform laws.

A December report from the John Jay College of Criminal Justice found a 34% decline in New York state’s jail population tied to that state’s adoption of a 2019 law that eliminated cash bail for most non-violent offenses. Researchers also found no direct impact on crime or recidivism, pointing to a modest decline in non-violent crime in New York while violent crime rose apace with national averages.

The trend is not limited to urban blue states. Recidivism declined in Harris County, Texas, after the county implemented bail reform for misdemeanor crimes in 2017, according to an August 2022 University of Pennsylvania report. And Alaska’s 2016 bail reform correlated with a nearly 20% drop in its jail populations with no corresponding spike in crime, the Alaska Criminal Justice Commission found in a 2019 report. 

Studies traced similar trends from an administrative bail reform effort undertaken by Cook County Chief Judge Timothy Evans in 2018. Even as police leaders railed against the policy by pointing to examples of detainees who committed new crimes while released on bail, advocates cited a Loyola University study and official county reports that found the same aggregate impacts as elsewhere: declines in the jail population and unchanged levels of recidivism.

The mounting case studies combine for “extremely good evidence” that bail reform works, according to Sarah Staudt, policy director for the Appleseed Center for Fair Courts and a member of the coalition that lobbied for the Pretrial Fairness Act.

“We know that the vast majority of people released pre-trial are going to be successful, and only a tiny, tiny minority are going to be re-arrested for a violent crime,” Staudt said. “People released pre-trial are not driving violent crime . . . there’s lots of evidence that isn’t the case.”

Limitations to reforms

Many of the same reports that showed promising trends following local bail reform efforts also highlighted some common shortcomings, especially when the reform laws are measured up against their goals of breaking down racial disparities in the criminal legal system and limiting low-level criminals’ contact with courts.

Last year’s judicial report on New Jersey’s bail reform law showed a steady increase in the proportion of that state’s jail population that is Black, from 54% to 60%. It also found that law enforcement agencies remain far more likely to refer Black arrestees to judges for possible detention than white arrestees, whom police more often released with court summonses.

Similarly, the John Jay College report found that judges were more likely to remand Black defendants to jail than their white counterparts, and Black defendants eligible for cash bail generally had their rates set higher.

New York also marked a decline in pre-trial defendants released from jail without conditions, coinciding with a sharp increase in electronic monitoring and other forms of pre-trial supervision.

Reform advocates have flagged a potential increase in supervised release as a potential unwanted side effect of bail reform, saying ankle monitors and other forms of surveillance are often overly restrictive and counterproductive.

A September 2021 report from the Appleseed Center measured a sharp uptick in Cook County’s use of electronic monitoring, mainly due to the COVID-19 pandemic and mostly for defendants who faced nonviolent charges.

The use of electronic monitoring “is a concern, and something we’re going to be watching closely” if the Pretrial Fairness Act takes effect, said Staudt, who helped write the 2021 report.

“There’s very little evidence that electronic monitoring is successful at actually changing rates of re-arrest or changing rates of failure to appear in court,” she said. “So it’s not doing anything except for making people’s lives more difficult and restricting their freedom unnecessarily.”

Political backlash

Every state and county that rolled back the use of cash bail faced a vocal and organized opposition, often from police and their allies, that blamed the laws for increases in crime.

The backlash to Alaska’s 2016 reform was so fierce that 2018 gubernatorial candidate Mike Dunleavy vowed as part of his campaign to repeal what he called the “catch-and-release” law, highlighting individual stories of gruesome crimes for which he said bail reform was to blame. He won the election and kept his promise to gut the law in 2019.

New York state legislators and Gov. Kathy Hochul last year bowed to pressure from critics, including New York City Mayor Eric Adams, by rolling back that state’s bail reforms, widening opportunities for judges to set cash bail or keep defendants in jail. Similar efforts are underway in New Jersey, with local Democrats leading the charge to reverse part of that state’s bipartisan bail reform law, Politico reported last month.

Illinois Gov. J.B. Pritzker and legislative Democrats resisted calls last year to scuttle or water down the Pretrial Justice Act, even as some opponents spread disinformation that the end of cash bail would herald the release of violent criminals onto the streets.

Opponents’ last hope lies with the Illinois Supreme Court, which will rule on whether the law violates the state Constitution’s Separation of Powers clause that allows counties to set their own court policies.

“The Circuit Court ruling which rightly declared it unconstitutional is a win for public safety, and the businesses and residents of Illinois, if upheld by the Illinois Supreme Court,” Tracy, the Illinois Republican Party chairman, wrote in his statement last week. “For now, it should serve as a message to Governor Pritzker and Democrat legislators that they can’t subvert our constitutional process by ramming their unpopular and dangerous soft-on-crime policies through the legislature in the dark of night.”

Tracy did not point to any data linking the end of cash bail to rising crime.

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January 30, 2023 at 09:02AM

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