Abolishing Cash Bail: Illinois Paves a New Way

This July, the Illinois Supreme Court ruled that a new state law banning the use of cash bail in the state’s criminal justice system can go into effect. The ruling means that Illinois will become the first US state to end the use of cash bail, opponents of which have long argued creates a system that punishes those with less means to pay expensive bails and effectively criminalizes poverty itself.

“The use of cash bail disproportionately hurts poor people and communities of color.”

It’s a historic step, one that will almost certainly inspire and inform similar movements across the United States, where several other states have already introduced various limitations on the use of cash bail.

The ruling also represents the culmination of a hard-won victory. Supporters of the measure fought, and won, against not only strong opposition from several corners at once but a well-funded disinformation campaign that sought to scare legislators out of passing such a groundbreaking reform.

The new law, passed by Democratic legislators and signed by Democratic Governor J.B. Pritzker in 2021, had been challenged by various groups, including county prosecutors, police, and sheriffs, who argued the law was improperly passed and would endanger public safety. But proponents of the reform argued that there is no evidence to support the claim that eliminating cash bail will increase crime; in fact, there is ample evidence that the use of cash bail disproportionately hurts poor people and communities of color by facilitating the incarceration of those who simply cannot afford bail.

“People impacted by incarceration and grassroots organizations across the state are thrilled that justice is finally about to be served in our pretrial systems in our state,” Will Tanzman, executive director of The People’s Lobby, one of the anchor organizations backing the end of cash bail in Illinois, tells NPQ. “This is going to be a huge step forward for the presumption of innocence, and for rolling back the racism of policing and incarceration in Illinois and doing so in a way that will significantly improve public safety outcomes in our state.”

Jailed for Being Poor

The idea that no citizen should be imprisoned simply for being poor pre-dates the founding of the United States. But the use of cash bails as practiced by the states often seems to fly in the face of that idea, subjecting those accused, but not yet convicted, of a crime to a stark test of financial means.

“This is going to be a huge step forward for the presumption of innocence.”

Exactly how many people across the United States are locked up because they can’t afford bail is difficult to know with precision. A 2016 study by the Prison Policy Institute (PPI) estimated that about 70 percent of some 646,000 people incarcerated in local jails across the United States were being held in pre-trial detention, meaning they had not yet been convicted of any crime. Meanwhile, one set of national data reviewed by PPI indicated that about one-third of defendants were detained pre-trial “for the inability to post money bail.” (1)

These findings suggest that at any given time, hundreds of thousands of Americans are incarcerated because they cannot afford bail.

The report also found that those who cannot afford bail tend to fall within the poorest third of society and that non-White defendants—and Black defendants in particular—had, on average, less financial means to pay bail than their White counterparts. (2)

Cash bail policies have also facilitated the growth of a profitable bail bonds industry, with bondsmen charging steep non-refundable fees to defendants unable to pay their bail in full, further penalizing those with less financial stability in the first place.

Meanwhile, according to advocates for ending cash bail, evidence suggests alternatives to it are effective. One example is what is called “unsecured bonds,” in which a defendant is required to pay a fine only if they don’t show up for a court date. The PPI study states: “Unsecured bonds are as effective at achieving public safety and court appearance as money bail.”

A Grassroots Mobilization to End Cash Bail

The Illinois campaign to end the use of cash bail that coalesced around legislation known as the Pretrial Fairness Act (PFA) was some seven years in the making but gained momentum during the wave of protests that followed the police murder of George Floyd.

“The uprising happened, and that really gave us a tailwind that allowed the Pretrial Fairness Act to be much further reaching than it otherwise would have been,” says Tanzman. “So, this was very much a result of the intersection of long-term grassroots organizing and power building on the one hand, and powerful movement moments and young Black people leading an incredible movement in the streets that completely changed the terrain of political possibilities on the other hand.”

Even as supporters of the PFA gained the support of Illinois legislators and, crucially, Governor Pritzker, the legislation faced a massive backlash—from police unions to county district attorneys to wealthy private parties determined to sink the bill.

Those opposition campaigns included efforts by conservative broadcaster Dan Proft and his political action committee to distribute “mailers”—essentially disguised as phony newspapers—that deliberately spread disinformation portraying the PFA in the harshest light possible with what many called racist overtones.

“People know that 40 years of tough on crime policies have not led to real community safety.”

It was, as Tanzman describes, “one of the largest criminal justice misinformation campaigns in U.S. history, with more than $40 million worth of fake newspapers that had multi-page spreads of mug shots of black and brown men that they claimed would be released under the [act], which would then cause mayhem across the state.”

But Democratic lawmakers supporting the legislation held firm.

“They were able to do that in part because our coalition was having these thousands of conversations with people on the ground,” says Tanzman, “and then reporting back to the legislators and the state leaders that, you know, you have this misinformation campaign and it’s scary, but the voters and the grassroots organizations across the state have your back on this.”

“The thing that we found over and over again was that people know that 40 years of tough-on-crime policies have not led to real community safety. They have instead led to mass incarceration of Black and Brown communities. And they don’t want to double down on that,” says Tanzman.

Setting a New Bar for Reform

With the Illinois Supreme Court’s vindication of the Pretrial Fairness Act, Illinois becomes a national leader in bail reform, putting the state significantly ahead of more stereotypically liberal states in that regard.

That fact reflects the strength and determination of Illinois’ grassroots organizers, says Tanzman: “No one should underestimate Chicago or Illinois. We are a place that has an incredibly vibrant and powerful grassroots movement and set of grassroots organizations fighting for racial, economic and environmental justice. And I think we’re seeing that with the Pretrial Fairness Act.”

And the success is not going unnoticed.

“People outside of Illinois are definitely getting in touch with us,” notes Tanzman. “The issue of wealth-based jailing is not unique to Illinois … and we’ve been part of this national movement for many years. So there’s a lot of folks that I think are going to be inspired and hopefully empowered by seeing us make this move in Illinois.”