This fall, a long-fought-for piece of Illinois legislation went into effect, eliminating the state’s notorious money bond system. The Illinois Pretrial Fairness Act, a provision within the larger SAFE-T Act that makes a number of key reforms to the state’s criminal legal system, went into effect on Sept. 18, removing money bonds as a mechanism for detaining defendants pretrial. The legislation makes clear that every defendant is eligible for pretrial release and that judges must bear the burden of proving that they should be detained.
Now, during the pretrial hearing process, defendants can plead their cases, and judges are encouraged to consider the fullness of a defendant’s life and the responsibilities and personal needs that might require them to remain home.
“In addition to ending money bond in Illinois, the Pretrial Fairness Act does really remap the entire flow of the pretrial hearing process,” says Briana Payton, director of policy and advocacy at Chicago Appleseed Center for Fair Courts. “Previously, the system was marked by a first appearance in court, that was a bond hearing, and those hearings would be incredibly brief in nature—we were finding them to be as short as 30 seconds. With some advocacy, they seemed to increase to three-to-five minutes but still disturbingly brief.”
Chicago Appleseed is just one group within the Coalition to End Money Bond, a group of member organizations working since 2016 to tackle bail reform and end the money bond system through targeted campaigns and public education. The coalition is part of an even larger web of organizations that make up the Illinois Network for Pretrial Justice (INPJ), which has been focused on successfully passing—and now monitoring—the Pretrial Fairness Act.
Under this new legislation, release and detention decisions are made more transparently and with greater rigor. Further, cases can now be subject to review, an important deviation from the past when courts were not even required to offer justification for their decision to detain a defendant.
“What we have now is a system in which, at the end of the hearing, everyone knows what the decision was, and there is a justification,” says Sharlyn Grace, senior policy adviser at the Law Office of the Cook County Public Defender. “The state has made an argument, and the court has made actual findings before someone loses their liberty while they’re awaiting trial, which is a huge decision.”
The Pretrial Fairness Act has also created a window for release for those who had been detained pretrial on money bond before Sept. 18 and were still detained after the act went into effect. Under the new policy, defendants still detained on money bonds can request a new hearing and petition for their release on a scaffolded timeline. Those detained on low-level charges must have their hearing take place within seven days of their request being made, those who were determined to be a flight risk within 60 days of their request, and those determined to be a safety risk within 90 days of their request.
Anticipated impact
In recent years, the money bond system has been a major target of criminal legal system reform and a central discussion point in discourse about the financial impact of the carceral system. That individuals can be detained before their trial on bonds of hundreds or thousands of dollars and, in some places, forced to enter into predatory contracts with bail bonds companies has been a major focus of reform or abolitionist-leaning organizations. However, advocates say the money bond system’s practices are misaligned with what the system was initially designed to do. As such, while this new legislation is ushering in dramatic changes, it also seeks to honor some of the original intention of the state’s pretrial process.
“Pretrial release is supposed to be the norm, as a very famous opinion from former Chief Justice [William] Rehnquist from the U.S. Supreme Court said, but that wasn’t the reality,” says Grace. “The reality was that most people in Illinois—as they are across the country—were being given money bonds, and then many people would spend, if not long periods of time, at least shorter periods of time, in jail while their loved ones came up with the money to purchase their freedom. And that was a system that was actually terrible for community safety in a number of ways.”
For one, Grace notes, safety has not been the primary determinant of whether individuals were placed on money bonds even though proponents of the bond system often play up fears around public safety to garner public support. Further, detaining individuals even briefly while their loved ones try to gather money for their release often undermines public safety by destabilizing family units and disrupting daily life. Recent data from 2020 and 2021 found that the average length of pretrial detention in Illinois is 34 days. In certain counties, that number is significantly higher, such as Cook County, where defendants are on average detained pretrial for 76 days.
“People who are in jail for even 24 hours or more start to experience the negative effects of that and have long-term consequences,” said Grace. “So people who are in custody for what might otherwise be considered a short period of time often lose their jobs, which can set them on a pathway to losing their housing. It can threaten people’s custody of their children; it disrupts treatment for medical conditions, mental health treatment, or education that people might be involved in. And those are all things that are protective factors; those are things that help generate safety for that person and for all of us.”
Research has shown that those who are jailed pretrial are more likely to be rearrested in the future than those who are released and able to live with their families or return to their communities.
In addition to the public safety concerns, advocates have framed the bond system and the need for its abolition as an issue of racial equity. As data has made clear, the burdens of the bail system fall disproportionately on low-income people of color—particularly Black and Latinx people—and create a ripple effect that tears across entire families and communities. This bears true across the country and especially in Illinois, where Black and Latinx people make up roughly 14% and 18% of the state population, respectively, but constitute 48% and 15% of the population under pretrial supervision.
The specific demographics of those most impacted by bail have required groups within the INPJ whose membership might fall outside of those categories to communicate the necessity of allyship to their members. For example, as a member of this larger coalition, Asian Americans Advancing Justice Chicago (AAAJC) engaged in canvassing efforts to help build a base of support for the act before its passage, particularly when it was contending with pushback from opponents.
“We know that, broadly, the Asian-American community is, of course, not the most impacted by cash bail or the issue of money bond,” said Andrea Chu, Chicago and Midwest regional organizing manager at AAAJC. “That being said, there are sub-sections of the Asian-American community that are particularly criminalized, and so we know that is a part of our community that we did want to uplift, and we also, as a community, want to be in solidarity with other communities of color that are more broadly impacted by the issue of pretrial incarceration.”
When canvassing, AAAJC worked to educate the community about the Pretrial Fairness Act and the money bond system overall. Chu was surprised by the degree of support that her canvassers received during that outreach work.
“I think even after the Pretrial Fairness Act passed and we were doing a lot of protection work around the bill, folks were actually pretty savvy in being able to see through a lot of the right-wing opposition and the simply racist propaganda that was out there that was aimed at attacking the Pretrial Fairness Act,” said Chu. “Something like that is very impactful both for our members in terms of understanding their own stake in pretrial incarceration, but also more broadly how to live out their values from solidarity.”
Implementation thus far
While the Pretrial Fairness Act was meant to go into effect at the start of this year, a stay in court delayed its rollout until late September. Still, county courts and public defenders have had their offices prepared since January for the changes they’ve anticipated for once the legislation went into effect. In Cook County, Grace says the Office of the Public Defender hired new attorneys and added complementary staff roles such as paralegals and investigators to ensure they had the capacity to meet the demands of these more rigorous hearings.
“We did dozens of hours of training across the office with a special focus on attorneys who will be handling the initial appearances in court and detention hearings, which happen in a number of different courtrooms all across the county,” said Grace.
Local grassroots groups, many of which were a part of the INPJ that helped pass the legislation, have begun their court-watching efforts to ensure that the legislation is being successfully implemented in real time. More formally, Payton says the INPJ has launched its own court-watching program, which spans eight counties and has collected thousands of observations thus far. These court-watching efforts, alongside conversations shared among public defenders, are helping paint a portrait of how the legislation has been rolled out thus far—and the results have been promising.
“We have seen pretty substantial drops in some places. In Cook County alone, there are 700 fewer people in the jail now than there were before the law took effect,” said Payton, “and there have been some pretty large percentage drops in some other counties across the state.”
Even anecdotally, advocates such as Chu have heard that pretrial hearings have been taking far longer than the minutes- or even seconds-long sessions commonplace before the act went into effect. While the impact of the legislation has already begun to be felt and has yet to result in a crime wave that opponents of the act predicted, its true success will best be measured in the long term. Loyola University Chicago’s Center for Criminal Resource has begun to embark on a robust nine-month-long project to evaluate and track the impact of the act. The findings of these studies will help those on the ground understand the implications of the legislation and hopefully provide a model for other states that intend to design similar policies of their own.
Concerns around electronic monitoring
Just as has been the case for other reforms made to the criminal legal system, there remains the threat that new mechanisms of control will emerge that replicate the same harms reforms were designed to address in the first place. Electronic monitoring has often posed as that foil in counties and states nationwide. In 2021, the Illinois Supreme Court created the Office of Statewide Pretrial Services (OSPS), a department designed to “support [the] efforts” of the Pretrial Fairness Act by assisting in the “administration of justice” and promotion of “community safety by ensuring fairness and equality in the pretrial process.” The mode by which OSPS claims to offer such support is through electronic monitoring contracts with 70 counties across the state at “no cost to the county, and at no cost to the defendant.”
“We know there is always a risk in any jurisdiction when a tool is taken away,” said Grace, “and if we think of money bond as something that judges used as a tool, then there’s a risk of replacing that with something else. Electronic monitoring is a natural go-to that the court may look to, despite the fact that there’s no evidence that it’s effective in achieving the court’s goals.”
Electronic monitoring has been increasingly used in both ends of the criminal legal system as a condition for an individual’s release pretrial and while on probation or parole. As such, electronic supervision encompasses “community corrections,” a system that advocates say widens the net of the carceral state by utilizing GPS technology to surveil and continue to restrict an individual’s freedom of movement even if they are physically outside of prison or jail.
When James Kilgore, researcher, author, and director of the Challenging E-Carceration Project whose activism has targeted the carceral system and, even more specifically, electronic monitoring, discussed his early research, he was often met with pushback from those who believed that home detention was at least preferable to being inside a prison or jail. Kilgore’s work, however, has sought to reveal how electronic monitoring is “not an alternative to incarceration, but an alternative form of incarceration.”
In the years since, as more advocates have highlighted the impact of electronic monitoring, much focus has been placed on the technology’s financial impact on those placed on it. In many counties, users must pay extremely high daily fees for the monitors that the state makes them wear, and the impact on their lives is easily quantifiable in ways that the social, psychological, and emotional consequences are not. However, advocates like Kilgore highlight that the financial burdens are not the only costs of electronic monitoring. Understanding these additional costs is particularly important in areas where electronic monitoring is still required but is being made available without “user fees,” such as those offered via Illinois’ OSPS.
“The issue for us has always been the issue of freedom, not money, not that the money doesn’t hurt and that it’s not terrible that these companies are making money off this. But really, for us, the issue is always freedom,” said Kilgore. “Freedom to access employment, freedom to access to medical care, freedom to work and to build connections with your family and community. All the restrictions that it puts on you in terms of living any kind of life. If you’re someone who is currently facing a case in court, what you need is the freedom to address whatever it was that put you in the court system in the first place, and that’s not going to be addressed by locking you in your house, making it very difficult for you to do any kind of social activities, to work, or to even maintain your health.”
Kilgore highlighted the impossible decisions that individuals on electronic monitoring often have to make, whether during an emergency or just in day-to-day life. During a medical crisis, for example, does one leave home to seek care or forgo treatment to avoid the risk of rearrest? Suppose one has an itinerant job such as a contractor or construction worker. Do they take a last-minute job outside of the area they are permitted to be in or forfeit that income to not violate the condition of their release?
That constant negotiation also plagues the loved ones surrounding an individual on electronic monitoring. Those family members and friends are even further tasked with the additional weight of supporting—often financially—those who are on monitoring and are unable to go to work, go to school, or otherwise contribute to their household.
“They also have to take on a lot of legal work, trying to consult with lawyers, trying to gather evidence, trying to do whatever it is you need to do to build the case, to defend yourself. All of this puts tremendous burdens on your family members,” said Kilgore. “I think this is one of the real issues in mass incarceration that hasn’t been given nearly enough attention. That not only does it impact the person who’s locked up or who is on a monitor, but it has incredible consequences for their family, financially and also emotionally.”
Despite the creation of OSPS and the contracts it has forged with more than half of the state’s counties, Kilgore was impressed that local organizers, particularly those in Chicago, were mindful of the potential threat posed by electronic monitoring when they were advocating for the Pretrial Fairness Act. That mindfulness meant that the legislation itself has some built-in restrictions around the use of electronic monitoring. Among these is that those on pretrial electronic monitoring must be released from their homes at least twice a week to attend to any errands and needs. In Cook County, the sheriff has instituted a policy of granting “movement” to people on electronic monitoring from 8 a.m. to 4 p.m. either on Monday and Wednesday or Tuesday and Thursday where they can leave home and not be required to provide as much verification or documentation as would otherwise be needed.
“Additionally, because electronic monitoring is a form of incarceration—and we believe that and have been advocating for people to understand that—the Pretrial Fairness Act ensures that people who spend time on electronic monitoring on house arrest at least 12 hours a day receive credit toward any sentence that they might receive at the end of that case for the time spent,” said Payton.
Other built-in protections include that judges reconsider orders for electronic monitoring every 60 days with the option to release people from their electronic devices if they have not violated any conditions. Additionally, the act changes the legal standard for filing escape charges.
“We found that people on electronic monitoring would at times be charged with escape charges that were incredibly frivolous and unfair [because] they did not actually try to escape. It might have been a technical violation, a minor or short-term violation, but it’s treated as though the person cut the band and ran away,” said Payton. “The Pretrial Fairness Act says that there has to be a known intent to actually try to escape. Then that has to be shown by the court before someone can actually be convicted with escape. So escape charges for people on electronic monitoring have gone down significantly, and we consider that a victory.”
