A Model for the Nation? Tips from Illinois on Eliminating Cash Bail
Cash bail has long been the price tag on freedom in our pretrial justice system. However, this system routinely allows wealthy individuals charged with serious offenses to walk free while low-risk defendants remain behind bars simply because they cannot afford bail. Despite widespread recognition of these flaws, finding a better alternative has proven difficult, as it requires striking the right balance between public safety, accountability, and individual rights. Illinois broke new ground as the first state to abolish cash bail with its Pretrial Fairness Act (PFA), which took effect Sept. 18, 2023. Now, policymakers and stakeholders across the country are watching Illinois, learning from its successes and challenges as they consider similar efforts. Any changes to the bail system must carefully evaluate safety and flight risks while deterring crime—all without unnecessarily incarcerating low-level offenders. Illinois’ approach offers valuable lessons, serving as both a guide and an inspiration for other states aiming to build a more effective pretrial system.
Key Voices for Successful Bail Reform
To eliminate cash bail in a way that ensures fairness, safety, and practicality, a diverse group of stakeholders including law enforcement, judges, prosecutors, defense attorneys, legislators, and policy experts must work together to align reforms with constitutional standards. Community organizations, civil rights advocates, and victims’ groups should be consulted to address the impact on vulnerable populations, while sheriff’s deputies can provide operational insights. Public health experts can focus on the needs of defendants dealing with mental health and substance use issues, and academics and researchers can supply data to predict outcomes and support evidence-based decision-making. By bringing these voices together, states can craft balanced reforms that prioritize public safety while minimizing unintended consequences.
Navigating Constitutional Limits
Eliminating cash bail requires careful review of state constitutional provisions on the right to bail and preventive detention. Many state constitutions guarantee the right to bail for non-capital offenses, which must be reconciled with efforts to eliminate cash bail. Without cash bail as an option for detaining individuals who pose a serious risk of harm or flight, expanded eligibility for preventive detention will be necessary to ensure public safety and accountability. States must establish clear legal standards to determine which offenses qualify for preventive detention and apply them only when there is a demonstrated safety or flight risk. In place of the expedited hearings commonly conducted today, longer, more comprehensive hearings should be required to assess these risks properly. These hearings must meet at least a “proof evident, presumption great” standard to justify detention, reserving it for cases with strong evidence of guilt and identifiable public safety concerns. Procedural safeguards—such as legal representation, clear records for detention decisions, and regular reviews—are essential to safeguard against arbitrary or excessive detention and to protect due process.
| Citations | “Cite and release” is presumed for low-level misdemeanors and petty offenses, allowing officers to issue citations instead of making arrests (except in cases where the individual poses a threat, has a medical emergency, refuses to identify themselves, or shows a pattern of criminal behavior). Officers have discretion to cite or arrest for other non-detention-eligible offenses. |
| Arrest | Arrests are mandatory for detention-eligible offenses like serious felonies, while officers have discretion for high-level misdemeanors and low-level felonies. This flexible approach prioritizes public safety while allowing case-by-case evaluation. |
| Release hearing | Upon arrest, officers may release the individual or bring them to a hearing within 48 hours. Detention requires a motion from the prosecution to ensure judicial review and prevent automatic custody. This process balances swift decisions with oversight. |
| Cash bail | Abolished; cannot be used in any circumstance. |
| Nonmonetary conditions | Nonmonetary conditions may be imposed to address public safety or flight risks, but they must be least restrictive and tailored to the individual. Options like pretrial supervision and electronic monitoring ensure a consistent, fair approach statewide, balancing safety with minimal restrictions. |
| Detention | Preventative detention applies to 79 serious offenses, including domestic violence, when there is proof evident and presumption great of the crime and clear and convincing evidence that less restrictive measures will not ensure public safety or prevent flight. It also applies to defendants facing probation or pretrial release revocation. |
Strengthening Public Safety
- The PFA allows law enforcement to make arrests when individuals pose a clear threat to public safety or continue criminal activity.
- Serious offenses, such as violent, gun, and domestic violence offenses, are eligible for continued detention without the possibility of release.
- Nonmonetary conditions like electronic monitoring and supervision address safety and flight risks for those released. Violating these conditions can lead to detention, as well.
- By abolishing cash bail, the PFA spares many individuals from the economic fallout of pretrial detention, such as job loss, housing instability, and family disruptions—thereby contributing to lower reoffense rates.
- Those accused of domestic or sexual violence are held for up to 48 hours, allowing victims time to create safety plans. Victims are notified before release hearings, and continued detention is possible if the defendant poses a danger. Victim advocates praise the law for improving victim safety.
- Research shows a 12 percent drop in violent and property crime since the PFA was enacted, further highlighting a positive impact on public safety.
Ensuring Accountability
- Court reminders via phone, text, or mail significantly reduce failure-to-appear rates by keeping defendants informed of upcoming court dates. Research indicates that simple reminders can cut missed appearances by as much as 20 to 40 percent.
- Pretrial services and support for those who may face logistical barriers, such as transportation issues or job conflicts, can help individuals attend court. These services can be crucial for low-income individuals or those with unstable schedules.
- Nonmonetary release options like supervised release or electronic monitoring provide structure and accountability without the financial burden of cash bail.
- Ensuring that court dates are set promptly and reducing delays in the judicial process can maintain engagement and make it easier for defendants to comply with appearance requirements.
- Since implementation of the PFA, failure-to-appear rates have decreased from 17 percent to 15 percent, reflecting a small but notable improvement in court attendance.
The Time for Smarter Pretrial Justice Is Now
The term “bail reform” may spark debate, but the goal remains the same: to create a more effective pretrial system. Illinois has demonstrated that states can protect public safety and ensure court appearances without relying on outdated cash bail practices. Will your state be the next to step up and create a smarter, fairer pretrial system?