Looking Deeper at The First Four Months of Illinois’ Bail Reform

By: Don Stemen, David Olson

Bail Data Analysis Fines and Fees January 18, 2024

January is Poverty Awareness Month in America, so it is an appropriate time to look at the early implementation of Illinois’ Pretrial Fairness Act (PFA), which eliminated cash bail for all criminal cases. It became effective on September 18, 2023, three years after its passage.

Part of the impetus for the law was to eliminate wealth-based pretrial release and detention. While the public may hear about criminal cases involving wealthy celebrities posting millions of dollars in bail to secure their pretrial release (for example Robert Durst, Bernard Madoff, Wesley Snipes, Phil Spector, and Martha Stewart all posted eye-watering bail amounts), the majority of people charged with crimes in the United States are not wealthy. More than 80 percent of felony defendants cannot afford to hire a private attorney. For many defendants, the ability to post even modest monetary bail amounts is nearly impossible. And defendants often must rely on family members, who are usually in the same financial situation as their loved one, and have to cobble together the money to secure pretrial release.

Loyola University Chicago’s Center for Criminal Justice is conducting a long-term evaluation of the implementation and impact of Illinois’ PFA, objectively assessing the degree to which the elimination of cash bail corresponds to the many predictions practitioners, policy makers, and advocates have made.

For example, some are expecting jail populations to decrease; others, however, argue there will be no change in the size of jail populations, but there will be a change in the composition of who is held pretrial as only defendants charged with serious offenses are detained. Others think jail populations may increase, as defendants who previously would have been released quickly after posting bond are now held in detention until their case is disposed. Some are predicting that failure-to-appear rates or rates of new criminal charges will increase, while others believe there will be no change or perhaps a lower rate of these negative pretrial outcomes since individuals that pose a higher risk cannot post money to be released. Our research will be testing these and other hypotheses regarding the implementation and impact of the PFA, and in time we will be able to answer these questions.

There is, however, one outcome that is guaranteed: People charged with crimes on or after September 18, 2023 will not be required to post money bail to secure their pretrial release.

Under the PFA, the majority of defendants charged with low-level felonies and nearly all defendants charged with misdemeanors must be released pretrial with or without conditions, such as supervision. Only defendants charged with specific offenses can be detained pretrial following a hearing to determine if detention is necessary to ensure public safety or appearance in court. If a court determines detention is not necessary, these individuals also must be released with or without conditions.

Prior to the implementation of the PFA, an average of 230,000 defendants were admitted to and released from pretrial detention in Illinois each year, and along with their family members they collectively posted more than $140 million per year in monetary bail. Thus, in the four months since the PFA was implemented, defendants and more likely than not, their family members, did not have to post roughly $46 million in monetary bail to secure pretrial release.

However, the PFA does more to the address the nexus of poverty, crime, and detention than just eliminate cash bail. Under the PFA, a defendant’s inability to pay for a condition of release such as electronic monitoring cannot be used as justification for pretrial detention. Previously, whether a defendant on pretrial release had to pay for electronic monitoring depended on the county where their case was being heard.

In addition, under the PFA, all defendants must have legal counsel at their first hearing when decisions about detention and release conditions are set. Previously, this was not the case in many rural counties. Like many states, criminal defense services for low income people in Illinois are provided at the county level with limited state funding. Thus, low income defendants in rural counties oftentimes did not have legal representation when bond was being determined, although they were provided legal counsel at subsequent hearings.

The lack of adequate legal representation for defendants with low incomes in many parts of the state was identified as a potentially significant impediment to the effective implementation of the PFA, particularly the requirement that defendants be represented when detention or pretrial release conditions are determined at the first appearance. To address this problem, $10 million in funding was appropriated and distributed to all Illinois counties, except Cook County (where Chicago is located), based on a funding formula that included the percent of the county population living in poverty and the volume of criminal case filings. While part of the lack of legal representation is due to the limited number of licensed attorneys in some parts of the state, the limited resources in many smaller counties also contributed to the limited defense services.

The statewide elimination of monetary bail in Illinois increases, to some degree, consistency across the state. In Illinois prior to the PFA, like most states, the decisions about who would be released on their own recognizance and the amount of monetary bail imposed were made by practitioners in individual counties. As a result, the proportion of defendants required to post bail and the bail amounts they had to pay varied considerably. In other words, a low income defendant in one county might be released on their own recognizance, while a defendant with the exact same characteristics in another county might be required to post $1,000 to secure their release, and in another county, $2,000. Observational research we did prior to the PFA’s implementation confirmed this. While it is unlikely that the general wealth of criminal defendants varied considerably, the median amount of money that defendants were required to post ranged from $1,000 to $10,000.

We also found a wide variety of reasons why criminal justice practitioners saw utility in requiring defendants to post money to secure their release beyond the intended purpose of ensuring court appearance or deterring additional criminal behavior while awaiting disposition on the current case. For example, setting high bond amounts was often seen as a more efficient means of achieving preventative detention—the goal of setting a $3 million bond for someone charged with murder was really to make sure they remain detained; however, it also theoretically says that the judge setting the bond is OK with the person being released if they can post $300,000 or 10 percent of the bond amount, which was generally required in Illinois to secure release.

Another benefit to monetary bail cited by practitioners was the assurance that, if convicted, any court-imposed fees, fines, or restitution could be immediately deducted from the money the defendant had posted. Indeed, research performed for the Illinois Supreme Court Pretrial Practices Implementation Task Force found that most bond money posted by defendants, or more realistically, their family members, was used to pay these fees, fines, and restitution. Based on interviews we did prior to the implementation of the PFA with defendants who had posted monetary bail, this practice can be a source of legal cynicism. Specifically, defendants often expressed the frustration that the money posted, and later kept, was that of family members and resulted in them feeling like the justice system is illegitimate: “Well, it makes me feel like they’re crooked and they’re only out for money.”

One of these fees is the “Bond Processing Fee,” which generated anywhere from $5 million to $17 million per year statewide in the years leading up to the PFA. Importantly, the PFA does not eliminate the ability for individuals convicted of crimes to have fees, fines, or restitution imposed, with the obvious exception of the Bond Processing Fee. What could potentially change, however, is that the imposition of these fees, fines, and restitution orders will be based on what the now convicted individual can pay, rather than how much of their family’s money is sitting in their bond account.

The ultimate impact of the PFA on rates of pretrial detention, lengths of pretrial detention, rates of failure to appear or new charges being filed during pretrial release, the degree to which defendants are quick to take plea deals to get out of pretrial detention, the sentences imposed, and financial conditions of sentences is yet to be determined. But our evaluation will answer these questions in the months and years to come. It is likely that the impact of the PFA on these outcomes will vary across Illinois’ diverse 102 counties. However, one thing is guaranteed: The ability to post a monetary bail will not be a factor that determines who is, and who is not, held in pretrial detention.

The Importance of Prosecutorial Independence

By: David LaBahn

Interagency Collaboration Prosecutors December 21, 2023

Prosecutors are elected by voters to protect the safety and wellbeing of the communities they serve. Removing prosecutors from office can have a chilling effect on the rule of law. It blurs the separation of powers and upends the checks and balances the three branches of government were designed to ensure.

The removal of Florida State Attorney Monique Worrell from her elected prosecutor position is one recent example, but threats to prosecutorial independence are emerging nationwide. Georgia, Tennessee, and Texas have already passed laws making it easier to remove prosecutors from office, and currently there are more than 24 bills in 16 states that would limit the power of prosecutors.

Giving governors the authority to supersede the will of voters and oust a prosecutor impedes a prosecutor’s ability to make the best decisions for their communities and erodes the separation of powers that are central to our democracy. If a prosecutor’s job is at risk, they may be reluctant to adopt promising prosecutorial practices or exercise their discretion to make the tough calls that they believe are right for their communities.

Independence is central to a prosecutor’s ability to be effective, as what a governor or legislator may consider politically popular does not always advance the mission of prosecutors to ensure justice and the safety and wellbeing of their community.

The United States Supreme Court has a long history of validating the importance of prosecutorial independence—from the recent June ruling affirming the United States government’s prosecutorial discretion in immigration to the 1935 case of Berger v. United States, which stated the prosecutor’s “compelling obligation” is “not that it shall win a case, but that justice shall be done.”

America is a patchwork of nuanced law and procedure around prosecutorial independence, but the responsibility of elected prosecutors remains constant: to use the lawful discretion of their offices to hold individuals accountable for their actions, protect victims of crime, and work to improve the safety of their communities. Prosecutors should be held accountable for fulfilling these responsibilities, rather than to the political whims of an executive branch.

Each of the three branches of state government should operate independently and none should hold greater power than another. The ramifications of one branch having the power to remove an elected official of another branch, without due process, are far reaching. Should an attorney general have the power to single-handedly remove a governor? Or should a governor have the power to remove a legislator without an impeachment trial?

Our Prosecutorial Independence Policy Brief articulates the role and duties of the prosecutor as “ministers of justice,” and underscores the importance of prosecutorial decision-making and the exercise of discretion to ensure justice, fairness, accountability and community safety. The brief addresses the core tenets of our democracy, including the separation of powers.

The prosecutor’s duty is to fulfil their role as ministers of justice, promoting more equitable, safer, and more just communities. Prosecutorial independence ensures an important separation between politics and the criminal legal system necessary to create safer communities through a more just and equitable legal system.

–The Association of Prosecuting Attorneys is a strategic ally of the Safety and Justice Challenge to uplift practices that work to keep communities safe while lowering jail populations and reducing racial and ethnic disparities.

Redefining Community Safety in Three Local Counties

By: Lee Ann Slocum, Beth Huebner, Claire Greene, Kiley Bednar, Adriano Udani

Community Engagement December 12, 2023

Everyone wants to feel safe in their community. Yet, we know little about how people make sense of what community safety looks and feels like to them. Discussions among policy makers and the media often center on a very specific and limited conception of safety. It emphasizes crime rates as a key measure, and the criminal legal system as the primary means of achieving this goal.

But aspects of safety captured by criminal legal system data may not align with community priorities or values. Allowing communities to define what safety means to them enables them to tailor this definition to their needs and values. It allows them to identify their own priorities for action, helping to advance the goal of safety for all.

A new report explores the meaning of community safety for people who live and work in three US counties. Each county faces some challenges that impact views of safety. Missoula County, Montana; St. Louis County, Missouri; and Mecklenburg County, North Carolina are all currently working on interventions around crime and community safety funded, in part, through the John D. and Catherine T. MacArthur Foundation‘s Safety and Justice Challenge initiative.

In Missoula, there is general agreement that the physical and social environment is rapidly changing. Housing-related concerns and the visibility of the unhoused population dominate conversations around safety. Part of these changes are due to an influx of new residents and associated increases in home prices, making basic needs less affordable even for people with stable employment. At the same time, many perceived that the unhoused population was growing in visibility because of a higher prevalence of drugs, a limited supply of low-income housing, and difficulty accessing mental health and substance use treatment services.

In St. Louis, violence is a significant concern for area residents. Like in many places, aggravated assaults and homicide rose at the onset of the Covid-19 pandemic. Concerns about violence are exacerbated by the county’s proximity to St. Louis City, which has high rates of these crimes. St. Louis County’s high level of fragmentation creates many challenges for community safety as it hinders the ability to address crime and safety-related concerns in a coordinated fashion. Black county residents, particularly those residing in North County, are disproportionately impacted by crime and the criminal legal system.

Violence is also a significant concern for residents of Mecklenburg County. Violence, particularly aggravated assault, and homicide, increased rapidly from 2018 through 2020, before leveling off and falling; however, violence, particularly gun violence, continues to be a significant safety related concern for people in Mecklenburg County. Other forms of violence, including among youth and police violence, are also viewed as serious concerns.

An analysis of local newspaper coverage of crime trends found that media reports often attributed increasing violence to root social causes (e.g., mental health issues, substance use, poverty); however, the solutions presented were just as or more likely to rely on the criminal legal system. Further, individuals who work for the courts, law enforcement, and government were quoted most frequently, while the perspectives of system-impacted individuals were rare. Although many factors shape news coverage, these selective narratives have significant sway over public perceptions of violence.

To develop a new conceptualization of community safety, we asked people what this term means to them. We solicited a group of local stakeholders to help organize and make sense of these responses. They generated a Community Safety Concept Map. It has 11 components grouped into five domains or “regions”:

  1. Personal safety and security;
  2. Thriving and socially connected community;
  3. Resources and services for a socially and economically just community;
  4. Responsive and effective government and public safety agencies;
  5. Systems for preventing and addressing harm.

Personal safety and security are at the heart of community safety for most people, yet the types of harm and day-to-day hassles that concerned people varied based on life experiences. These differences underscore that conversations about community safety must be inclusive and include the perspectives of marginalized groups, as their safety concerns may require a different set of policies and actions.

On average, people rated all the components of community safety as important or very important. Recognizing the overlap of safety with other community priorities, such as ensuring that everyone has their basic needs met and an equal opportunity to lead a stable life, can help promote and sustain collaboration among agencies.

Several key recommendations emerged from the work:

Language is important. Framing conversations around “community safety” Instead of “public safety” may help people think more expansively about what safety looks like and how to achieve this goal. Redefining community safety in this way has the potential to reveal the broader historical forces that create and sustain inequalities in accessing safety.

Educate people on what a more inclusive and equitable vision of safety can look like. While low rates of violence and feeling secure are key components of community safety, it is much more than that. The methods used in the report can help residents and stakeholders see a range of possibilities that move beyond a focus on crime statistics.

Identify local priorities and structure future action steps using the Community Safety Concept Map that was generated from this research. This map is designed to be a dynamic tool to engender discussions about safety and to ensure that a holistic perspective is being considered by a multitude of stakeholders (e.g., community groups, local leaders, educators).

Collect data from a representative group of community members, making sure to include the perspectives of groups who are most impacted by crime and the criminal legal system. This includes unhoused individuals, people of color, and other minoritized groups as well as people who work in the criminal legal system. Rural communities may have unique perspectives on safety and should be included in any effort of this type.

Make information on community safety readily available, so that it can be used by a variety of stakeholders. All three counties have ongoing data collection efforts that can be leveraged to measure various components of community safety identified in this study. Creating a dashboard or website that brings together these data and makes them easily accessible can empower communities to assess their own progress toward achieving safety.

When resident input is solicited, ensure there is follow-up, so people know how the information is being used. For example, local stakeholders could partner with the media to describe what is being done to address safety-related concerns and how the community can contribute to these efforts.

Replicate this work focusing on the experiences of youth. Youth are an important part of the community that we were not able to reach in this study, and they likely have very different views than older community members. From an equity and representation perspective, it is important to consider their views.

Conduct this work on a regular basis to keep up with shifting priorities. Changes in the demographic or economic profile, like what happened during the COVID – 19 pandemic, can change community perceptions. Views on safety are dynamic and should continue to be reassessed.

The Prioritizing and Measuring Community Safety Toolkit associated with this work provides a step-by-step guide for local communities interested in reimagining community safety.

Hand the microphone to individuals closest to the problem to illuminate overlooked areas of safety that are often taken for granted or absent from mainstream discussions about this issue. Moving forward, communities can benefit from local conversations that are more centered on advancing safety for all than narrow crime-oriented definitions that are just one component of how people experience and think about safety.

A Better Approach for Managing Justice-Involved Veterans

By: Sergeant Major Alford L. McMichael

Interagency Collaboration Jail Populations Veterans November 9, 2023

Each year roughly 200,000 active-duty service members leave the United States military and return to civilian life. While most navigate this transition successfully, many struggle with mental health and substance use disorders, the effects of traumatic brain injury, homelessness, and criminality. One in three veterans report having been arrested and booked into jail at least once, a rate significantly higher than for non-veterans.

People who have served this nation in our armed forces have sacrificed to protect us. It is time for us to better recognize that sacrifice and take steps to ensure our veterans are treated fairly by the justice system. Veterans who encounter the criminal justice system should receive interventions that can help them resume their responsibilities to their families, their communities, and their country.

Last year the Council on Criminal Justice launched a national effort to help make that happen. Its Veterans Justice Commission, on which I serve, is chaired by former U.S. Defense Secretary and U.S. Senator Chuck Hagel and also includes former Defense Secretary and White House Chief of Staff Leon Panetta, the Chief Justice of the Georgia Supreme Court, two formerly incarcerated veterans, and other top military, veterans, and criminal justice leaders.

Our mission is straightforward: to examine veterans’ involvement in the criminal justice system and the risk factors that drive it, and to develop recommendations for evidence-based policy changes that enhance safety, health, and justice.

My fellow members and I have learned a lot since embarking on this endeavor. Above all, we have discovered that despite a patchwork of interventions designed to help veterans across the country, too many are falling through the cracks. Here is one example: while Veterans treatment courts have been a pioneering front-end intervention, just 14 percent of counties operate one, and eligibility requirements for such courts exclude many veterans.

Another challenge is that veterans who become incarcerated lose access to health care from the Department of Veterans Affairs (VA), which prevents them from receiving the specialized treatment they need to address post-traumatic stress disorder (PTSD) or other problems. The suicide rate for veterans is approximately 1.5 times higher than the rate among the general population, and it is especially high for veterans leaving incarceration.

In September, the commission released a policy roadmap that encourages the expansion of alternatives to prosecution and incarceration for justice-involved veterans. This blueprint outlines alternative sentencing options that not only recognize veterans’ service, but also consider the fact that their criminal behavior may have been influenced by that service. The options, which include expanded use of pretrial supervision and probation in lieu of a record of conviction or incarceration, are grounded in evidence-based practices. The commission also recommends allowing veterans whose cases are processed through such options to pursue record expungement.

Based on the policy framework a model policy called the Veterans Justice was adopted. This version of the framework will be shared with state legislatures as a blueprint for action on the issue. The policy framework reflects an initial set of recommendations released by the commission in March. Additional recommendations targeting veterans’ transition from service to civilian life will be forthcoming early next year.

As jurisdictions consider this model policy framework, my fellow commissioners and I hope the federal government will incentivize the widespread adoption and effective implementation of these reforms. Many of the framework’s elements will require updating existing systems, training personnel, and conducting ongoing evaluations. Federal funding can serve as a critical resource for jurisdictions pursuing these vital reforms, which will ensure that veterans nationwide can access correctional interventions designed for their specific needs.

I also hope policymakers at the state and federal level consider this disturbing reality: We are prosecuting and imprisoning veterans while denying them the care and consideration they need and deserve. And we are doing so even though their criminal justice involvement is often due, at least in part, to their willingness to fight for their country. As a result, we are not only doing a disservice to veterans, but also jeopardizing the safety of the public they once fought to protect.

The challenge of veterans returning home from wars and landing in the criminal justice system is not new. But our response can be.

Elevating Crime Victims’ Voices in Safety and Well-Being Investment

By: Matt Davis

Community Engagement Crime Interagency Collaboration Victims November 3, 2023

Bria Gillum, Senior Program Officer, Criminal Justice for the John D. and Catherine T. MacArthur Foundation and Aswad Thomas, Vice President of the Alliance for Safety and Justice (ASJ), appeared at The Atlantic Festival 2023 in Washington, D.C., in a talk entitled “How to Invest in Safety and Well-Being.” It was part of a session underwritten by the MacArthur Foundation on criminal justice reform.

Bria interviewed Aswad, who survived a robbery attempt that left him with two life-altering gunshot wounds, about his experience as a survivor of violence, and his journey to embrace the Trauma Recovery Center (TRC) model of addressing the needs of crime survivors, who often face the biggest barriers to accessing healing services.

After Aswad left the hospital with his gunshot wounds, there were no support services, or even information about where to look.

“My story might sound unique, but it’s not unique at all,” he said at the conference. “In this country, three million people are crime victims every year, but only nine percent of people get access to victim services.”

Thomas began organizing crime victims and advocating for victims’ rights, and today he is working to expand the ASJ’s national network of crime survivors to elevate their voices in criminal justice reform.

“When you think about the criminal justice system, the voices of crime victims like me have never been at the center of criminal justice policies,” he said. “One thing that we are trying to do is to elevate this new victims’ rights movement, this is calling for new safety solutions to help stop the cycle of violence.”

In addressing this need for advocacy, services, and resources, Aswad spoke about his organization’s TRC model as a “one-stop shop that provides you with all of the recovery services that you need, without all of the red tape.” The first center was developed at San Francisco General Hospital in 2001. Today, there are 52 TRCs in the United States.

He said community is at the heart of what ASJ does. “What we do is we build community,” Aswad said. “We build community with survivors, providing peer-to-peer support. We build community with law enforcement, with advocates, with legislators, and we build that community so that we can start having conversations around our public safety policies.”

Aswad shared some of ASJ’s accomplishments. “In the past 10 years, we passed about 91 criminal justice and public safety reforms across the country. We’ve changed victim compensation programs in about ten states. We’re helping to provide more protections for victims to be safe from employment protections and housing and protections.”

Another area of advocacy for ASJ is criminal justice reform. “Across this country, crime victims are now organizing to change criminal justice policies,” he said. “Past reforms have reduced incarceration and helped to incentivize more rehabilitation for folks who have caused harm. But also working on reforms to remove the barriers for people coming out of the justice system and back into our communities. We also passed laws, so [that crime victims can] access housing, jobs, education, things that help promote stability. Those are the things that help keep communities safe as well.”

In response to a question from Bria about what it means to be safe in your community, Aswad asked the audience to close their eyes and think about where they feel most safe.

“Is it a garden? Is it at church? Is it with family? Think about where you feel most safe. The majority of us in this room, I don’t think we say more police, or that we feel safe with more prisons. We feel more safe in community with each other. So that’s what we need to invest in, more Trauma Recovery Centers, more mental health programs, more solutions to help stop the cycle. That’s how we actually get to true safety in this country.”

You can watch the full conversation on YouTube.