Story by Kevin Woodard
During February of 2021 Governor JB Pritzker signed the first state wide no cash bail law in the United States scheduled to go in effect on January 1, 2023. The bill is referred to as the Illinois Pretrial Fairness Act. Leading the effort to pass the bill was the Illinois Legislative Black Caucus who viewed the signing as “an historic step.” The law was celebrated by defendant advocacy groups. Other groups such as the Illinois Law Enforcement Coalition believe the law will put the public and law enforcement at risk.
“This legislation marks a substantial step toward dismantling the systemic racism that plagues our communities, our state and our nation, and brings us closer to true safety, true fairness and true justice,” Governor Pritzker said after the signing.
Illinois State Senator Robert Peters added, “Today is a historic step toward winning real safety and justice for our communities.
The Illinois Law Enforcement Association described the law as, “a blatant move to punish an entire, honorable profession that will end up hurting law abiding citizens.”
Ed Wojcicki, Illinois Association of Chiefs of Police Executive Director, wrote it, “unfairly targets officers and attempts to punish them, not just make them accountable.”
In a July 2021 article, Scott Shackford wrote in Reason magazine, a libertarian publication, “Bail is supposed to be a system that makes sure people who are released from jail after being arrested show up for court and behave themselves while awaiting trial. But in many places in the United States cash bail demands have become a system for keeping people who don’t have resources trapped behind bars not because they are dangerous or flight risks, but because they don’t have the money. The result is a system that essentially punishes people, particularly poor minorities, before they’re ever convicted and makes a mockery out of the idea of presumed innocence.”
Hartsfield Law, a Joliet law firm wrote on their web page in a July 2021 article that, “Cash bail policies are especially difficult for low-income defendants who may not have the resources to post bail, and who therefore must remain in custody while waiting for trial.”
McNamara, Phelan and McSteen, a Chicago law firm explain how the existing cash bail system works in a July 2021 article on their website as follows, “When a person is arrested and charged with a crime, a judge determines how much bail a defendant will have to pay in order to be released while awaiting trial. In Illinois, the current system is a cash bail system. This means that a defendant is required to pay certain percentage of the amount of bail the judge sets in order to be released. In most cases in Illinois, the bond amount is 10 percent of the bail amount the judge sets. For example if the judge sets bail at $10,000 dollars, the defendant would have to post $1,000 cash to be released.”
Hartsfield describes how the new system works on the same article previously referenced on their website in the following manner “Once the law fully goes into effect, Illinois courts will no longer be able to set bail payments of any amount as a condition for a defendant’s release in advance of their trial. Rather, the courts will be required to implement new systems to determine when a defendant may safely be released. Under these new systems most defendants will be released from custody on their own recognizance, with the expectation that they will return for their court dates. Pretrial detention will be reserved only for defendants who have been charged with certain serious offenses, or who are found to pose a significant threat to another person or to be likely to fail to appear in court.
According to information on McNamara, Phelan and McSteen’s site according to the American Bar Association 375,000 people in our country are incarcerated on any given day after being accused of low level offenses simply because they can not afford bail.
Shackford wrote in his Reason article that as a result of not being able to make bail, “People who are stuck in pretrial detention often end up accepting bad plea deals that saddle them with harsher sentences and punishments than they’d get if they were free to fight the charges.”
Randall Shelden wrote in his book Dangerous Classes, “According to the Fifth Amendment of the U. S. Constitution, no person can be held, ‘nor deprived of life, liberty or property, without the process of law.’ Also, according to legal procedures one is presumed innocent until proven guilty beyond a reasonable doubt, and there can be no punishment without conviction, nor can one be detained for the purposes of punishment. The reality of criminal justice is just the opposite.”
Shelden also argues that historically, “Jails have been used mostly to … manage the rabble – another term for the dangerous classes.”
Cities 92.9 asked Illinois State Libertarian Party Chair Steve Suess, of Normal, to share his thoughts on cash bail and he responded, “I’m against the cash bail system because I see the entire concept of cash bail as a constitutional violation of 5th and 8th amendment rights.
Suess continued, “The fifth amendment, which guarantees due process and contains the famous, “life, liberty, and pursuit of happiness” phrase, exists to ensure the fair treatment of individuals accused of crimes in the United States. What could be less fair than letting the incarceration status of individuals be determined by their ability to pay a fee? The ability or inability to pay should not be a determining factor as to whether an accused criminal is allowed back on our streets.
Suess continued regarding the eighth amendment saying it “limits the penalties and punishments government can inflict on an individual when they are accused of a crime, including limiting “excessive bail.” Given that the nature of the word excessive, itself, is subjective to the individuals involved, the logical conclusion is that all cash bail is excessive. $1,000 to you and me may not be excessive, but it very well could understandably be excessive to someone living paycheck to paycheck.”
Suess’ remarks regarding asking the accused to “pay a fee” serves to remind us that in the 1300’s London jails had evolved into simply a method to extract payments from debtors, hence the term debtor’s prisons, according to Shelden.
Cities also reached out to Woodford County Sheriff’s Deputy Dennis Tipsword to get his perspectives on how the new cash bail law affects law enforcement and he gave us an example of the kind of situations he anticipates having problems with saying, “Take a simple trespassing complaint. Someone is on your property one night and they are not breaking into anything or threatening any harm to anyone. In that case there is really nothing we can do. All we can do is use our verbal skills to persuade them to leave on their own or write them a citation with directions to appear in court within 21 days. … That doesn’t really solve the problem. That night we are really handcuffed when trying to help the victim. So that is really frustrating for us.”
Tipsword would like to see a special session of the state legislature called to make changes to the law.
According to McLean County State’s Attorney Don Knapp, the law as passed created a list of “do not detain” crimes but even at 700 pages in length, still left a lot open for discussion.
Some of these could be cleared up at a special session.
Among other items Knapp is concerned about the language in the bill that states that even if a detainable crime has been committed the suspect has to pass another threshold to be detained. That is the suspect has to be a threat to a specific person.
Sandage gives this example, “It looks to us vehicular homicide … is not a a qualifying crime.”
As we can clearly see the state is definitely in a quandary. We have a new state law passed with good intentions but as the old saying goes, the devil is in the details.
