UPDATE 7/18/23: Six months after the Illinois Supreme Court halted the Pretrial Fairness Act from going into effect, the court ruled that the landmark law does not violate the state’s constitution. Illinois has officially become the first state in the U.S. to eliminate cash bail.

Almost five months after the state of Illinois was poised to do away with cash bail, activists and organizers are speaking out to push for its implementation. 

The Illinois state legislature passed the SAFE-T Act in January 2021, with the Pretrial Fairness Act portion, which would abolish cash bail in the state, set to go into effect Jan. 1 2023. Criminal justice advocates stressed that the bill could change the lives of hundreds of thousands of people held in pretrial detention every year, as well as the lives of their families. 

But on Dec. 31, hours before the Pretrial Fairness Act would have gone into effect, the Illinois Supreme Court issued a stay to consider lawsuits by conservative prosecutors and sheriffs. In the meantime, people in detention who have been convicted of no crime continue to wait for weeks, months, and even years in overcrowded, dangerous conditions. 

Like prisons across the country, Illinois is facing acute staffing shortages in prisons. One report from a court-appointed monitor found that 46% of medical positions in Illinois prisons were unfilled. These shortages compound in jails with overcrowding problems, like St. Clair County Jail. One year into the pandemic in 2021, the jail was sometimes almost 100 prisoners over its 418-inmate capacity, and COVID-19 spread almost unchecked.

“People are housed in the gym [of the St. Clair County Jail], which is the only recreational space that the jail was using,” said Amanda Antholt, the managing attorney of the Illinois disability advocacy group Equip for Equality. “So that means there’s no gym. And there’s also no yard at that facility. And so there’s not any out-of-unit recreation at all. We have people right now at that jail who have not had the ability to exercise for years.”

COVID-19 has somewhat receded, but overcrowding still makes health care difficult—private mental health consultations, for example, are nearly impossible, according to Antholt. St. Clair County Sheriff Rick Watson promised to address the overcrowding, but Equip for Equality, which is monitoring the situation, has seen little improvement. The sheriff’s office did not return a request by Prism to comment.

The problem with cash bail

The U.S. only began using cash bail as a condition of release pretrial at the beginning of the 20th century. When someone is arrested, they have to pay a court-set fee for release. If they don’t show up to trial, the fee is forfeit. Those who can’t pay the fee remain in jail—even though they haven’t been found guilty of any crime.

The injustice here is straightforward, according to Will Tanzman, the executive director of The People’s Lobby, a Chicago-based grassroots organization that advocates for public policies around racial and gender justice. “It’s fairly widely supported and agreed upon that people should be innocent till proven guilty.”

Tanzman added that in conversations he’s had explaining the new law, “people really get that relying too heavily on policing and incarceration as the answer to crime and violence just hasn’t worked.” 

That’s particularly vivid with pretrial detention. Wealthy or affluent people can often raise money for release fairly easily—which is why the median income of people in jail prior to incarceration is about half of the general public. 

The requirement for cash bail can create hardship and misery for poor and working people who are, in theory, presumptively innocent. Some 1 in 30 jail inmates report being sexually assaulted while in prison—presumptively innocent people face brutal violence thanks to the cash bail system. Dying by suicide is the leading cause of death in jails; people detained pretrial are six times as likely to die by suicide as people convicted and sentenced. 

Pretrial detention also has a serious destabilizing effect on families and communities. In a 2017 study in Philadelphia, for example, half of the men jailed pretrial were the primary source of income for their families. Beyond the loss of income, families can face devastating strains as they try to pay bonds to keep their loved ones out of jail. 

“The way to create safe communities is to provide people [with] the resources they need,” Tanzman said. “So mental health care, good living-wage jobs, high-quality affordable housing, good schools. And when people are arrested, or when people are jailed pretrial, it disrupts many of these things. It causes people to lose homes; it causes people to lose their jobs.” 

Pro-prison demagoguing 

Conservatives hoped that fearmongering about the Pretrial Fairness Act would boost their chances in the 2022 midterms. The GOP’s candidate for governor, Darren Bailey, said the act would release a “flood of violent criminals … into Illinois neighborhoods.” On social media, conservatives used racist images, such as mugshots of Black people, to try to frighten voters. 

The Pretrial Fairness Act allows judges to keep people accused of violent felonies in jail pending trial. It simply ends the use of cash bail; people will be detained based on whether they are a safety risk, not on the basis of whether they can pay. States that have taken steps to move away from cash bail, like New Jersey, have not seen a spike in violent crime. 

Bailey lost the gubernatorial election, but the GOP had some success in derailing the law. They argued that the Illinois Constitution allocates the power to make decisions about bail to the judiciary and that, therefore, the legislature violated the constitutional separation of powers by eliminating cash bonds. They also argued that the act violated victims’ rights provisions of the constitution by threatening victims’ safety. A judge in Kankakee County upheld the conservative position. 

While the Illinois Constitution does mention bail, it never says that the bail has to be in the form of cash. The court has to consider conditions for release, but the constitution doesn’t say money has to be one of those conditions.

As for the victims’ rights argument, Alexandria Block, the senior supervising attorney at ACLU of Illinois, said that their amicus brief with the court cites “decade’s worth of data from academic studies that show that cash bail does not keep community safe, and, in fact, can actually undermine public safety.” 

Advocates are cautiously optimistic that the Democratic-majority state Supreme Court will rule in favor of eliminating cash bail. Tanzman said his organization is pushing ahead with educational outreach, preparing for the inevitable conservative outcry when the law goes into effect. Antholt hopes the law will finally provide some relief for inmates packed into St. Clair County Jail. Advocates hope that the end of cash bail can usher in a more just, safe Illinois—and perhaps inspire other reform movements throughout the country.

“The plaintiffs are just incorrect that, in the long run, locking people up on cash bail is going to keep the city safe,” Block concluded. “It’s just not what keeps the state safe. It’s just not.”