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

By: Don Stemen, David Olson

Bail Data Analysis 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.

Illinois Bail Reform Makes Justice System More Equitable and Fair

By: Laurie Garduque

Bail Data Analysis September 18, 2023

The justice system in MacArthur’s home state of Illinois is set to become more just, equitable, and fair without increasing crime, thanks to the Pretrial Fairness Act. While many people and organizations worked towards this landmark reform bill for years, MacArthur’s Safety and Justice Challenge (SJC) helped support non-partisan analysis and research and education around key parts of the bill.

The Pretrial Fairness Act makes a range of reforms to the criminal justice system in Illinois. One of the most significant changes is eliminating cash bail and redesigning the pretrial process and decision-making. Illinois is the first state in the nation to ban cash bail entirely.

The end of cash bail in Illinois, which goes into effect September 18, 2023, will reduce the discriminatory impact of the justice system in the state. In the past, cash bail left people in jail who could not afford to pay bond, while those with greater access to resources were released and able to return to their families, jobs, and homes.

Under the new system, people are released from jail unless the State’s Attorney initiates a petition for detention, based on the risk of a defendant committing another crime or fleeing prosecution. When this occurs, a hearing is held, evidence of risk to the community is presented and evaluated, and the judge determines if pretrial release will be granted. By removing the role of money and wealth from pretrial release, the Pretrial Fairness Act will promote greater equity and fairness, particularly for people with lower income and members of historically marginalized communities in Illinois.

Analyzing the Impact of Local Reforms

While support for ending cash bail had been building for a while, some important steps happened in Cook County under their MacArthur SJC grant. The Cook County’s Office of the Chief Judge issued a general order in 2017, designed to increase pretrial release without cash bail and increase the affordability of cash bail when used as a condition of release. The chief judge received collaborative support and buy-in from other system and community stakeholders to implement these changes.

And, because SJC prioritizes data transparency and analysis, the Office of the Chief Judge shared their data with another MacArthur grantee for analysis: Loyola University of Chicago’s Center for Criminal Justice.

Loyola deserves credit for its efforts to educate journalists, government officials, and the public about how bail reform impacts community safety. Their analysis of bail reform in Cook County since 2017 traced people who had been released pretrial. What they found was invaluable to the debate around bail reform in the Pretrial Fairness Act: they learned that there was no change in the rate at which defendants were charged with new crimes in the six months or year following their release, even though the number of people released during this period increased.

Data showed that bail reform in Cook County had no effect on new criminal activity or crime. This was based on analysis performed by Loyola University Chicago under a grant from MacArthur.

Loyola’s Professors Don Stemen and David Olson concluded that Cook County’s decreased use of cash bail had no impact on new criminal activity or crime. Overall crime rates in Chicago, including violent crime rates, were not any higher after the implementation of bail reform. The analysis and findings in Cook County resembled other areas where similar bail reform efforts have been undertaken, such as New York, New Jersey, and Philadelphia.

The analysis also showed that releasing people while they await trial does not make communities less safe. Monetary bail, however, does impose a burden on the individuals and families who are least able to afford it. Like bail reform efforts in other communities, Cook County’s initiative demonstrated that it is possible to decrease the use of monetary bail and pretrial detention–lessening the financial, physical, and psychological harms that come with pretrial detention–without affecting criminal activity or crime rates.

Without Cook County modeling bail reform for the rest of Illinois and Loyola analyzing and sharing the results, Illinois may not have had the support to end cash bail statewide.

Implementing reforms at the local level, analyzing the results, and sharing learnings is at the heart of SJC as we try to encourage the spread of reform across the country. The Pretrial Fairness Act, a first-in-the nation law, took lessons from a local community and used it to inform smart reform decisions at the state level. This shows exactly the type of momentum the Safety and Justice Challenge was designed to push forward, and we know it will have a positive impact on people’s lives, even as there is more work to be done.

 

Research Report

Bail Courts Pretrial July 31, 2023

Understanding and Reframing an Individual’s Failure to Appear in Court

Shannon Magnuson, Senior Associate, Justice System Partners

Failure to appear in court is often a disproportionate driver of jail populations. It is important to understand it better and to reframe it, as part of the John D. and Catherine T. MacArthur Foundation's Safety and Justice Challenge (SJC)—which is reducing jail populations across America. Justice System Partners (JSP), a technical assistance provider to the Safety and Justice Challenge, recently conducted an in-depth study about why people do not get to court as scheduled in Lake County, Illinois. Leadership there know even one night in jail can be disastrous for some people. It can lead to a host of negative consequences including loss of employment. But they saw bench warrants for missing court were also driving their jail population at a disparate rate. That is why they wanted to know more about why people miss court.

New York, NY

Change in Jail Population 33%

Action Areas Bail Courts Data Analysis Diversion

Last Updated

Background

In 2018, New York City had the lowest incarceration rate of any large city in the country. Despite the city’s success in reducing the overall jail population, certain fundamental inequalities persisted in the jail.

People of color were overrepresented in the jail. Black and Latinx people made up a little more than half of the city’s population yet comprised nearly 90% of the local jail population from 2013 – 2018.

While the number of people in custody with behavioral health needs was falling, it was falling more slowly compared to the overall number of people in custody. In 2018, 43 percent of individuals in New York City jails had behavioral health disorders.

Strategies

Since joining the Safety and Justice Challenge, New York City has advanced a number of strategies to rethink and redesign its criminal justice system to make it more fair, just, and equitable for all.

01

EXPANDED SUPERVISED RELEASE

The city updated the program model for supervised release and conducted trainings to inform the courts on the changes. The updates included expanding program eligibility to allow a younger population charged with serious offenses and expanding the range of charges that were eligible. State-wide bail reform legislation, which passed in 2019, required further expansion of the supervised release program to be made available to all individuals charged with a crime, at the discretion of the court.

02

PARTNER VIOLENCE RESPONSE

Previously, incidents involving intimate partners were not permitted within the supervised release program. However, since bail reform legislation passed, and these individuals were now accepted by the program, a class specific to intimate partner violence (IPV) was developed and implemented to respond to the needs of this population. It encourages judges to allow defendants charged with IPV to participate in the supervised release program, as an alternative to jail.

03

DIVERSION TO SERVICES

The city has increased the use of alternatives to detention and incarceration for people in the jail. Specifically, the city expanded the uptake of diversion initiatives. To ensure people could be successfully diverted to these services, the city identified and addressed barriers to diversion in the arraignment process.

04

ENHANCED INFORMATION FOR JUDGES

The city has also worked to provide enhanced information to judges in arraignments, which has included updating a release assessment tool that offers judges the likelihood that the individual will make all court appearances.

05

NEW METRICS FOR SUCCESS

In light of criminal justice reforms, the city developed bail and discovery reform metrics. With the substantial changes made to state laws, these metrics can be used to track the implementation and progress of these reforms.

Results

As a result of the strategies above, New York City has made progress towards its goal of rethinking and redesigning its criminal justice system. The jail population has been reduced while keeping the community safe.

Quartery ADP for New York (2016-2025)

33.2% from baseline

More Results

Specifically, judges are using supervised release for a broader range of cases than they used to.

The city has built collaborations with other agencies, which has allowed the city to facilitate jail releases in response to COVID-19 while keeping the community safe and protecting public health.

Remaining Challenges

New York City is focused on addressing its remaining challenges in its local justice system.

With changes to the state-wide bail reform law, there is no longer a need to focus on expanding the supervised release programs. The challenge will now be to encourage judges to consider release for the more serious charges, for which bail still remains a legal option, and to continue to build out support services within the program.

The city has also been working to identify where racial and ethnic disparities occur in the justice system and will be working to address the issue going forward.

Finally, the COVID-19 pandemic has had a significant impact on every aspect of the city’s local justice system and continues to uniquely affect those incarcerated in local jails. The NYC jail population has seen a re-increase since the beginning of the pandemic, which requires a regular review of jail reduction approaches and their effectiveness.

The foundation of collaborative, data-driven strategies, including the necessary structures and collaboration from local stakeholders that are in place to support these strategies, has set the city up well to respond to the pandemic swiftly and effectively.

Lead Agency

NYC Mayor’s Office of Criminal Justice

Contact Information

Miriam Popper

Partners

Office of Court Administration, New York City, Criminal Justice Agency, Center for Court Innovation, CASES

Follow @CrimJusticeNYC

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Mecklenburg County, NC

Change in Jail Population 36%

Action Areas Bail Community Engagement Racial and Ethnic Disparities

Last Updated

Background

Prior to joining the Safety and Justice Challenge, Mecklenburg County had successfully implemented several evidence-based practices to improve its justice system, such as using risk to inform the setting of release condition decisions, rather than relying on charge. This resulted in a significant jail population reduction, however there was still an unnecessary use of the local jail.

Too often, a jail stay depended on a person’s ability to pay money bail. Although the county increased the use of non-financial release conditions, jail stays still too often depended on a person’s ability to pay.

Pretrial status inmates and length of stay were main drivers of the jail population. In 2019, the pretrial jail population was 63% of the total average daily population.

People of color were overrepresented in the jail. In 2019, despite making up approximately 46% of the local population, Black and Hispanic people made up 78% of the jail population.

Strategies

Since joining the Safety and Justice Challenge, Mecklenburg County has advanced a number of strategies to rethink and redesign its criminal justice system so that it is more fair, just and equitable for all.

01

BAIL REFORM

The county implemented changes to its bail policy in March 2019 by removing the monetary bail schedule and creating a non-financial Release Conditions Matrix. This resulted in more individuals safely released from jail while awaiting trial. In addition, the county established a more informed and uniform bail setting process resulting in more meaningful first appearance hearings for individuals.

02

ENHANCED PRETRIAL SERVICES

The county enhanced pretrial services by strengthening system efficiencies through a streamlined case processing management plan. It is also developing specialized pretrial supervision teams to better serve clients at higher risk of pretrial failure.

03

COMMUNITY ENGAGEMENT

The county launched a Community Engagement Task Group including 10 community members. The goal of the Task Group is to ensure community members can meaningfully engage and participate in the development of policy and practice changes in the justice system, under the guidance of the Criminal Justice Advisory Group.

04

CENTERING RACIAL EQUITY

The county partnered with the W. Haywood Burns Institute to analyze criminal justice system data to identify and inform policy and practice changes to eliminate racial and ethnic disparities in the justice system. County stakeholders also created and delivered Implicit Bias Training for Justice Professionals to improve system actors’ understanding of the intersection of race and the justice system.

Results

As a result of the strategies above, Mecklenburg County has made progress towards its goal of rethinking and redesigning its criminal justice system.

Quartery ADP for Mecklenburg County (2016-2025)

35.7% from baseline

More Results

There have been significant pretrial justice system improvements in the county. For example, first appearance courtrooms are now headed by a small number of trained judges, which allows for uniformity in how release and detain decisions are made. The county also established a bail policy leadership group that is staffed by an analyst and meets monthly to review outcome data.

In addition, the Criminal Justice Services (CJS) Pretrial Supervision Unit is poised to launch two specialized caseloads focused on clients who are at higher risk of pretrial failure. An assessment done by the Center for Court Innovation has provided the CJS Pretrial Supervision Unit with a set of recommendations concerning best practices around procedural justice. The Unit is working to incorporate those suggestions.

The development of the Community Engagement Task Group drew significant interest from both the local justice partners and the larger community, who are all committed to collaborating around the development of policy and practice changes in the justice system so that it is more fair, just, and equitable for all. Nearly 100 community members applied to participate in the Task Group, and 10 applicants were selected in March 2021.

By the end of Summer 2021, all county justice agencies will have implemented the Implicit Bias Training for Justice Professionals.

Remaining Challenges

Mecklenburg County is focused on addressing its remaining challenges in its local justice system.

An analysis of local criminal justice data by the W. Haywood Burns Institute identified bookings and early release decisions as the two decision points in the justice system most impacted by racial and ethnic disparities. The Community Engagement Task Group will plan to review the racial and ethnic disparities data analysis and provide feedback on policy and practice changes that will help to eliminate existing disparities in the local system.

The county is seeing an uptick in violent crime, including homicide, which has placed an emphasis on identifying dangerous individuals that are legally eligible for pretrial detention and detaining them, and appropriately supervising others while they await disposition of their case.

Last, the COVID-19 pandemic has had a significant impact on every aspect of the county’s local justice system. The foundation of collaborative, data-driven strategies, including the necessary structures and collaboration from local stakeholders that are in place to support these strategies, has set the county up well to respond to the pandemic swiftly and effectively. The county is focused on sustaining the work underway as part of the Safety and Justice Challenge in order to continue to support the work of reducing the local jail population and eliminating racial and ethnic disparities.

Lead Agency

Mecklenburg County Criminal Justice Services

Contact Information

Kasia Kijanczuk
Criminal Justice Planning Manager
Katarzyna.Kijanczuk@mecklenburgcountync.gov

Partners

Mecklenburg County Manager's Office, Clerk of Superior Court, Office of District Court Judges, Chief Magistrate's Office, District Attorney's Office, Public Defender's Office, North Carolina Department of Public Safety Community Corrections 26th Judicial District, Mecklenburg County Sheriff's Office, Charlotte Mecklenburg Police Department, Law enforcement agencies in Huntersville, Pineville, Cornelius, Davidson, Matthews, and Mint Hill, Community Support Services (CSS), New Options for Violent Actions (NOVA)

Follow @MeckCounty

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