An End to Cash Bond in Illinois is Only the Beginning of Restorative Justice

Last month, state Senator Robert Peters and Representative Justin Slaughter announced a bill known as the Pretrial Fairness Act that, if passed, would make Illinois the second state to end the use of money bonds after New Jersey. In Cook County, where about a quarter of the county’s detainees are kept incarcerated because they cannot afford to pay their bond, the passage of the Pretrial Fairness Act could be a positive step towards reforming the state’s judicial system. Because of the abrupt cancellation of the General Assembly’s fall session, the bill has yet to be entered into the record.

When a person is arrested and charged with a crime, a judge determines whether the individual is eligible for bail. One common condition of bail is that the defendant must pay a monetary bond before they are released, and this amount is determined by a judge at the defendant’s bail hearing. In Cook County, there are two types of bonds that require payment upfront: C-bonds and D-bonds. A C-bond requires that the entire bail amount be paid, while a D-bond requires that ten percent of the bail amount must be paid—the full amount is only paid if the defendant fails to appear in court or violates another condition of bail. 

More than 90 percent of detainees at Cook County Jail are awaiting trial, according to data from the Illinois Criminal Justice Information Authority, though that is likely lower this year due to the reduction in transfers to IDOC during the pandemic, the Coalition to End Money Bond said. The only reason many defendants remain incarcerated prior to their case being heard in court is because they are unable to afford their bond payment. Usually, the detainee themselves is not the person who posts their own bond—that burden is placed on the detainee’s family and close relations.

“If you are poor, but especially if you’re poor and Black, and especially if you’re a woman, you are at an extreme disadvantage when it comes to pretrial incarceration compared to someone who has money, is white, and is a man,” said Peters, who chairs the senate’s Special Committee on Public Safety and worked on the issue of money bond as an activist before being appointed to his seat in 2019. “We need to get rid of the fact that your safety and freedom is tied to money. We need to get rid of the idea that freedom is a privilege. Our freedom is a right. You are not guilty because you’re poor.”

The Coalition to End Money Bond includes policy, organizing, and religious groups that seek to abolish the use of money bond through county-level policy change, state legislation, public education, and organizing efforts—carrying on a fifty-year legacy of organizing on this issue in Cook County. Early on in the pandemic as coronavirus cases surged in the Cook County jail, the coalition’s campaign focus shifted to more immediate decarceration work by putting pressure on city officials to reduce the amount of people being incarcerated and to release inmates that were awaiting trial. 

“We were trying to save lives because we know that jails are prime spaces for viruses to spread,” said Malik Alim, the campaign’s coordinator. “[The COVID-19 pandemic] has shed light on the barbaric practice of locking people in cages. When [the courts] began releasing people, what do we make of that response? We can understand that means that a lot of people in jail are not there because they need to be there in order to keep [the public] safe. They’re there as part of this punishment bureaucracy—the criminalization of poverty.”

This summer, a study by Loyola University Chicago’s Center for Criminal Justice Research, Policy and Practice found that even though Cook County Jail released nearly twenty-five percent of its detainees, between March 22 and November 22, the “overall reported crime decreased across the City of Chicago relative to a 3-year average of the same time period.” The researchers found that holding defendants in jail prior to their court dates did not have a direct correlation to either an increase in crime or a decline in public safety. 

In addition to abolishing money bond, the bill will include measures that ensure those charged with a crime appear in court by supporting them, rather than holding money over their heads—which is what Alim refers to when he refers to the “criminalization of poverty.”

Courts would be required to send reminder texts and phone calls prior to an individual’s court date, and transportation services, such as CTA fare, would be provided for low-income people who are more likely to miss court over transportation arrangements or being unable to afford taking the day off from work. These services would help reduce the likelihood of missing a court date, but, in the event that does occur, the accused person would be given notice that they have forty-eight hours to appear in court before a warrant is issued. The bill will also require that the state becomes more transparent about pretrial decisions by collecting and publishing data that will be made available to the public. 

If cash bond is abolished, activists will shift their focus to how risk assessments are used to determine a defendant’s eligibility for bail. When an accused person sees a judge for a bail hearing, they are quickly informed of the charges against them and a bail amount is set. A risk assessment is used to determine whether a defendant is eligible for bail—including prior arrests and convictions, pending charges, and the violent nature of the current offense. The proposed bill would attempt to enforce that all detainees who are not deemed a flight risk or threat will be released without needing to make any bond payment prior to their court date. If a judge determines that an individual should be denied bail, then enough evidence must be presented to prove that the person is a legitimate flight risk.

Already, the proposals in the bill have been opposed by criminal justice officials. Some adversaries have cited their reliance on bond-based revenue as a primary reason for opposing the bill. During a subject matter hearing on October 20, Holly Lemons, the Republican Circuit Court Clerk in Montgomery County, outside of St. Louis, and president of the Illinois Association of Court Clerks, listed several programs funded by bond revenue, including administrative court services and restitution for crime victims.

Peters said in an interview that the argument that legislators feel the need to “lock up their own constituents” for financial reasons is a dangerous stance to take.

“The best argument people are going to have against the bill isn’t going to be focused on public safety. There will be fear mongering, but it won’t be rooted in fact because they can’t defend a failed system that is just not working,” he said. “One thing that I’ve learned doing this work is that for forty years, policy was built off of fear. And yet nobody feels safe, no matter where they are. It doesn’t help people feel like they have dignity in their lives.”

Outside of government officials relying on bond money to “bolster their budgets,” Alim said another challenge that money bond abolitionists have had to overcome is the perception that Cook County already reformed its use of money bond a few years ago.

In 2017, Cook County Chief Judge Tim Evans issued an order that judges had to determine how much someone charged with a crime could reasonably afford to pay, and to not set the individual’s bond any higher than that amount in order to prevent excessive bond. The order stated that those who were deemed safe to be released without money bond were not to remain in jail because they could not afford to pay their bond, and detainees held without bail must present a “real and present threat.” Additionally, all detainees that had not posted bond in seven days were to have their cases reviewed. Because the ruling reduced the median amount and use of monetary bail bond, according to a report issued by Evans’ office in 2019, this reform was seen as a tentative victory for money bond abolitionists. However, it was only an incremental step forward—the ruling did not completely eliminate the use of excessive money bonds.

As recently as December 2019, Cook County Judge Susana Ortiz set a defendant’s bond at $300,000 after prosecutors first tried to deny bail—meaning a bond amount of $30,000 needed to be paid for the defendant’s release. The defendant in question was arrested after a shooting in Englewood, but was not alleged to be one of the shooters. 

In addition to not eliminating excessive bond, there was actually an increase in the number of defendants who were denied bail after the order went into effect. The use of both C-bonds and D-bonds decreased, but these bonds were often replaced with defendants being denied bail when they may have been deemed eligible previously. Evans’ 2017 order had not reformed the county’s judicial system in the way many hoped it would, and advocates say no change had been made to the use of money bond in the rest of the state. 

When the legislature returns to session, Peters said he will fight for the Pretrial Fairness Act. His primary tactic is to be “ruthless” when it comes to changing the state’s judicial system.

“You can’t be afraid of being ruthless on the issues you care about. The people who oppose us are ruthless. We need to be as ruthless as them, but we need to know that we’re coming from a place of love,” he said.

Should it pass, the Pretrial Fairness Act will fundamentally change the way public safety has traditionally operated in Illinois.

Nikki Roberts is a freelance writer from the western suburbs with a journalism degree from DePaul University whose writing has appeared in local publications including Chicago Reader, Chicago magazine, and South Side Weekly. She was the Bridgeport captain for Best of the South Side 2020.