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.

Illinois Bail Reform Makes Justice System More Equitable and Fair

By: Laurie Garduque

Bail Data Analysis Pretrial and Bail 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.

 

Publication

Bail Community Engagement Crime Data Analysis Featured Jurisdictions Human Toll of Jail Jail Populations Pretrial and Bail Pretrial and Jails Pretrial Justice Pretrial Services Racial Disparities July 1, 2022

Expanding Supervised Release in New York City

Safety and Justice Challenge, Center for Court Innovation

In 2015, the John D. and Catherine T. MacArthur Foundation launched the Safety and Justice Challenge (SJC), a multi-year initiative to reduce populations and racial disparities in American jails. To advance knowledge development grounded in a research agenda that explores, evaluates, and documents site-specific strategies to safely and effectively reduce jail populations and address racial and ethnic disparities, the Foundation engaged the Institute for State & Local Governance (ISLG) at the City University of New York (CUNY) to establish and oversee an SJC Research Consortium. Consortium members are nationally renowned research, policy, and academic organizations collaborating with SJC sites to build an evidence base focused on pretrial reform efforts.

Under New York City’s Supervised Release Program (SRP) individuals awaiting trial are released under community supervision to ensure their return to court, instead of via bail or pretrial detention. Defendants are eligible for the citywide SRP if they meet specific criteria, including arrest charge type, estimated risk status, and community ties. Towards the goal of reducing the jail population, New York City expanded the City’s Supervised Release Program (SRP) several times by altering the eligibility criteria to include a wider range of individuals. The first large expansion of SRP since 2016 occurred at the beginning of June 2019. A subsequent program expansion occurred in December 2019 as New York State prepared for 2020 bail reform legislation to go into effect.

In an effort to better understand the impact of expansion of SRP as a jail-reduction strategy, ISLG and the SJC Research Consortium funded the Center for Court Innovation to examine the impact of the June 2019 expansion. The Center conducted a time series analysis to determine if observed post-expansion SRP enrollment and/or detention rates significantly differed from predicted rates. The study found that the expansion increased SRP rates across racial groups and reduced detention for non-violent felony offenses, though not for misdemeanor offenses. In addition, the findings show increased use of SRP for misdemeanor offenses, which may suggest net-widening.

Key takeaways:

  1. Increasing program participation does not always decrease detention. For small program expansions (like the 2019 expansion) to have a true impact on detention, these initiatives must target serious crimes that are likely to be detained.

  2. Large changes are needed for large impact. Larger expansions, especially those that are driven by legislative change (like the December 2019 expansion in preparation for bail reform), can have a greater impact on detention compared to smaller expansions.

  3. Targeted efforts to reduce racial disparities are necessary. Disparities are not automatically impacted by increasing program participation and decreasing detention across the board. To reduce racial disparities, targeted efforts must be made.

Together, the findings suggest that the SRP expansion reduced detention for some offenses and highlight the importance of measuring the impact of program implementation and expansion to inform future work and jail reduction efforts in New York City and other jurisdictions.

New York, NY

Change in Jail Population 38%

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 (2016-2023)

38.4% 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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Cook County, IL

Change in Jail Population 33%

Action Areas Bail Community Engagement Courts Interagency Collaboration

Last Updated

Background

When Cook County joined the Safety and Justice Challenge, people of color were disproportionately arrested and incarcerated at higher rates than white people. Siloed criminal justice data systems across the county also made it difficult for data to be analyzed across agencies in a timely fashion.

A subset of the jail population was comprised of individuals who cycled through the system due to unaddressed mental health and/or substance use needs. Barriers to living wage employment also led individuals to engage in narcotic distribution and subsequently, people were caught up in the criminal justice system.

The overuse of detention in jail caused disruption in the stability of the families and communities of those arrested, leading to higher re-arrest rates, producing worse case outcomes, and potentially causing life-long damage to families.

Strategies

Since joining the Safety and Justice Challenge, Cook 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. In addition to reducing the jail population, the county is specifically addressing the barriers that keep people in jail before their trials begin.

01

BOND REFORM

To ensure people are not incarcerated just because they are poor, the county implemented bond reform in 2017 to allow people who did not pose a safety risk to the community to be released from jail while awaiting trial. Bond reform included use of the Pretrial Risk Assessment tool for felony and misdemeanor cases and decreasing the number and amounts of cash bonds required for pretrial release from jail.

02

COURT DATE REMINDERS

To increase the successful appearance rate for people released pretrial and ensure more people knew exactly when they needed to appear back in court, an Automated Court Reminder System launched in December 2017 with calls and in March 2018 with text reminders.

03

POPULATION REVIEW TEAM

The county created a multidisciplinary population review team, which reviews the cases of individuals detained in jail, identifies barriers to pretrial release, addresses those barriers when possible, and identifies larger systemic challenges that can be addressed through collaborative problem solving.

04

DIVERSION TO SERVICES

The Supporting Employment and Education Development (SEED) program was created for individuals charged with felony drug distribution. The program offers comprehensive services to help these individuals seek employment at a living wage and ultimately prevent actions that harm communities. The Frequently Impacted program was established to meet the needs of people being released and support their pretrial success via contracted peer re-entry navigators.

05

ENHANCED DATA

Measuring success is a matter of being able to understand what is happening in the jails. To increase the capacity to make smart, data-driven decisions, the county improved integrations between agency data systems and created a collaborative criminal justice dashboard.

06

RACIAL EQUITY

The Cook County Racial and Ethnic Equity Workgroup (CCREEW) examines each strategy using an equity assessment process and makes recommendations to ensure equity in implementation. Strategic plans are developed with the voices of people with lived experience, and the county works with communities most impacted by the justice system to talk openly about solutions and move them forward.

Results

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

Quartery ADP for Cook County (2016-2023)

33.1% from baseline

More Results

Specifically, Cook County has been able to reduce the local jail population without putting public safety at risk. In fact, rigorous analysis completed by the Office of the Chief Judge, the JFA Institute, and Loyola University Chicago all demonstrate that eliminating cash bail in the justice system has been both safe and effective in Cook County.

In the first six months after bond reform was implemented in Cook County, more than 3,500 more people received an I-Bond—meaning that they were released without bail—who would not have received one before. Because of I-Bonds and lower D-Bond amounts, defendants saved a total $31.4 million that could instead go toward rent, food, and other essentials to support themselves and their families. In addition, 500 more people were safely released back into the community while awaiting trial.

Community voice was critical to these results. In 2020-2021, the county engaged 264 community residents who participated in 31 small group dialogues, an increase from the 144 community residents who participated in 24 small group dialogues in 2019.

Remaining Challenges

While Cook County has made significant progress in reducing its jail population, the county aims to reduce it even further, and continue addressing the barriers that keep people in jail before their trials begin.

In addition, the COVID-19 pandemic has created a set of completely new challenges for the Cook County justice system, but stakeholders remain firmly committed to driving forward toward the goals of the Safety and Justice Challenge. Through continued collaboration and data-driven decision making, stakeholders regularly review strategies to course-correct and adapt, even during the most challenging of circumstances.

Finally, Governor J.B Pritzker signed the SAFE-T act on February 2, 2021 which has significant implications for Illinois and Cook County. The abolishment of cash bail, law enforcement reforms, and other pretrial reforms are covered in the legislation and county stakeholders will have to collaboratively prepare for the impact of the significant changes.

Lead Agency

Office of the Chief Judge, Circuit Court of Cook County

Contact Information

Timothy C. Evans
Chief Judge, Circuit Court of Cook County

Rebecca Barboza
Project Director
rebecca.barboza@cookcountyil.gov

Partners

Law Office of the Cook County Public Defender, Cook County State’s Attorney’s Office, Cook County Health, Cook County Justice Advisory Council, Cook County President’s Office, Cook County Sheriff’s Office, City of Chicago Mayor’s Office, Clerk of the Circuit Court of Cook County, Chicago Police Department, Safer Foundation, Heartland Alliance, Loyola University Chicago, Alumni Association, NAMI, North Lawndale Employment Network, and Treatment Alternatives for Safe Communities (TASC), Access Living, Chicago Survivors, Apostolic Church of God, Illinois Justice Project, Lawndale Christian Legal Center, Illinois Criminal Justice Information Authority

Follow @CookCntyCourt

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