Flo, a 59-year-old Chicago resident, sat in the local jail for two months because he could not afford to pay $7,500.
He was arrested for burglary in 2016 after a gambling problem led to “a bad choice”, he said. Unable to afford 10 per cent of the $75,000 bond set by a judge — the deposit necessary to satisfy Chicago courts or, in other jurisdictions, to obtain the remainder from a bail bond lender — Flo was incarcerated awaiting trial. He lost his job as a heating and cooling technician.
“You get a bond that’s so high, you can’t afford to get out,” said Flo, who asked that his surname not be used due to the stigma attached to incarceration.
That will change on Monday in Illinois, when the state becomes the first in the US to entirely eliminate the use of cash bail. The practice, which is rare in other countries, binds a defendant’s freedom to their ability to pay, and campaigners say it has helped make the incarceration rate in the US significantly higher than in other developed economies.
About 427,000 people are incarcerated in local jails awaiting trial in America, according to the advocacy group Prison Policy Initiative. That means eight out of 10 people held there have not been convicted of a crime. While black and Latino people make up roughly a quarter of the US population, data from 2002 — the last time it was collected nationally — shows they made up 63 per cent of the pretrial detention population.
The new policy will replace a monetary bond with a hearing before a judge, should prosecutors request one, to determine if a person requires pretrial detention because they pose a flight risk or threaten public safety.
The effects of Illinois’ rule change, which could only be introduced after a legal battle that went all the way to the state’s Supreme Court, will be scrutinised far beyond the Midwest. It comes into force in an election cycle that has been dominated by bitter disputes over criminal justice reform — a key talking point for conservative candidates nationwide.
New York’s milder bail reform, which in 2019 eliminated cash bail for most misdemeanours and non-violent offences, nonetheless became a lightning rod for Republicans in the 2022 midterm elections, with several rightwing candidates inflicting embarrassing losses on Democratic incumbents after running on a public-safety platform.
New York’s Democratic governor Kathy Hochul watered down the state’s reforms earlier this year, giving judges more discretion, after competing in a close race with a rival who blamed the abolition of cash bail for a rise in crime. New York City mayor Eric Adams, a former police officer, has hinted that he would support further rollbacks.
“We’ve seen a lot of different jurisdictions implement bail reform and it has faced some headwinds, unfortunately,” said Stephanie Wylie, counsel at the Brennan Center for Justice, a New York-based think-tank. “Bail reform often gets erroneously blamed for any crime trends, even crime trends that we might be seeing nationally.”
Crime rates have risen across America in recent years. The country registered its highest increase in homicides in modern history during the first year of the Covid pandemic, although there is some evidence of a recent decrease in major cities. Yet studies in New York, such as one by the University of Albany, have suggested that “the effect of bail reform on crime rate increases is negligible” and that recidivism rates have declined.
Opponents claim that the data gathered looks at too broad a sample, rather than focusing on the most dangerous criminals, and that a general reduction in arrests could be distorting the results of such analyses. Some argue that bail reform efforts are Trojan horse campaigns by activists looking to abolish incarceration altogether.
“We don’t want a system that treats poor people and rich people differently,” said Hannah Meyers, a fellow at conservative think-tank Manhattan Institute. But she maintained that with recent efforts to reform criminal justice “there’s just a complete unwillingness to have a conversation about all the trade-offs . . . the harm on both sides, because, of course, the bail system allows you to keep dangerous people from reoffending and keep people who have preyed on victims from preying on victims again.”
As evidence of such trade-offs, conservative news networks have seized upon cases such as Darrell Brooks Jr, who drove into a Christmas crowd in Wisconsin two weeks after being released on a $1,000 bond for another offence.
But Cook County State’s Attorney Kim Foxx, who heads the second largest prosecutor’s office in the country, covering Chicago and parts of surrounding suburbs, pointed out that a defendant’s ability to pay is unconnected to the danger they pose. The Illinois reform takes “money out of the equation in making determinations of risk”.
“People who are a threat to public safety, who may cause harm even while awaiting trial but have access to money, are people we should be concerned about,” she said. “People who are sitting in jail for long periods of time . . . because they cannot afford bail leads to far worse outcomes for all of us.”
Pretrial detention can lead people to plead guilty to crimes they did not commit, just to go home, said Tanya Watkins, executive director of the Chicago organisation Southsiders Organized for Unity and Liberation. Those convictions can result in housing or employment discrimination, and harsher penalties for any future criminal infraction, even minor ones.
One of the worst cases involved 22-year-old Kalief Browder, who died by suicide after being incarcerated on New York’s notorious Rikers Island for three years without a trial, having been unable to post a bond.
Such incidents contrast with the treatment of white-collar defendants, such as FTX co-founder Sam Bankman-Fried, who was released on a $250mn bond. His bail was later revoked amid allegations that he attempted to intimidate witnesses.
But in Illinois, Foxx said she looked forward to the end of a system that disproportionately hurt poor, black and Latino families.
“We have long known that the money bail system was a dysfunctional system,” she said. “To have public policy catch up to common sense is rare, and I think that this is the culmination of that.”
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