Cash bail doesn’t work. This system – through which a person charged with a crime is forced to pay money to get out of jail before going to trial – turns “innocent until proven guilty” on its head, because too often people without means are unable to buy their way out of jail before having their day in court.
Simply put, this system keeps people behind bars based not on innocence or guilt, but on a person’s ability to pay.
What’s more, cash bail favors people charged with violent crimes – who have money – over people charged with nonviolent crimes – who are poor.
People charged with violent crimes are more likely to be able to pay cash bail, according to Cara Smith, policy director at the Cook County Jail. In December 2016, Sheriff Tom Dart supported that claim by sharing that, over the course of a month, 25 percent of people charged with gun offenses were able to come up with bail money while only 4 percent of those arrested for retail theft were able to bond out and be released.
But two new proposals introduced in the Illinois General Assembly take direct aim at this broken system.
One bill would prohibit judges in Illinois from requiring cash bail for people charged with nonviolent crimes, so long as they have no prior convictions. Cash bail would only be allowed under these conditions if the court makes a specific finding that this is necessary to secure the defendant’s appearance in court, and judges could also make use of electronic monitoring as a condition of release.
Another piece of proposed legislation would abolish cash bail altogether.
Encouraging a move away from money bail is smart policy. Bond decisions involve two basic concerns: flight risk and public safety risk. Cash bail is an outdated and ineffective way to mitigate those risks.
Washington, D.C., offers an alternative approach that has yielded impressive results. In Washington, D.C., 90 percent of people charged with an offense are released on nonmonetary bail, such as electronic monitoring or a promise to appear – and nearly 90 percent show up for trial, according to a report from the Justice Policy Institute. Moreover, using alternatives to jail can save money. A 2012 study of D.C.’s electronic monitoring system found it cost $750 per participant per year, with an estimated overall savings of $9,400 per inmate.
This approach ensures people don’t languish in jails as they wait for trial, so long as they don’t pose a flight risk or endanger public safety.
Who’s in jail?
City and county jails primarily house three kinds of inmates:
1. People convicted of a misdemeanor offense with a sentence of less than one year
2. People who have been sentenced to prison and are awaiting transfer
3. People awaiting trial who have not yet been convicted of a crime
Too many people fall into that third category. Cook County Jail is the biggest jail in Illinois and the U.S. As of Feb. 1, 95 percent of Cook County Jail’s population was made up of men and women simply awaiting trial.
This poses a serious public safety risk. Low-risk defendants are 51 percent more likely to commit a crime within two years when held in pretrial detention for eight to 14 days, according to a 2013 report from the Laura and John Arnold Foundation.
How does “bail” work?
After a person is charged with a crime, he or she has a hearing in bond court. Bond courts, which determine the terms of bail, hand down the following decisions:
I-Bond: This is the same as a person being released on “recognizance,” meaning he or she promises to appear in court.
Electronic monitoring: A person is released but put on electronic monitoring leading up to trial.
D-Bond: A person must pay 10 percent of the bail set by a judge to be released before trial. If a person’s bail is $5,000, he or she must pay $500 to be released.
C-Bond: A person must pay the full amount of his or her bond to be released pretrial.
No bond: The judge determines cash bail cannot be allowed pretrial, and this person will be held in jail before appearing in court.
The Cook County Sheriff’s Justice Institute observed 30 days’ worth of hearings in its Central Bond Court in early 2016. The findings recorded indicate that, among other things:
· Cash bond (C-Bond and D-Bond) is the most prevalent type of bond judges mandate: 56 percent of cases resulted in D-Bond, with the median amount set coming in at $40,000. Twenty-three percent of cases resulted in electronic monitoring, 19 percent resulted in I-Bonds (recognizance), and in 2 percent of cases observed, judges decided that defendants would be held without bond.
· Just 25 percent of defendants to receive cash bonds posted bail within 31 days: 880 people were booked into custody, but only 220 posted bond within a month.
· Bond types and amounts vary significantly: A comparison of individuals with similar risk profiles revealed discrepancies. For example, a 51-year-old black woman charged with retail theft of less than $300 received an I-Bond. A 41-year-old black man charged with the same crime was given a $50,000 D-Bond by the same judge. In another example from the Institute’s study, a 28-year-old white man charged with possession of a controlled substance received an I-Bond, while a 33-year-old black male charged with the same crime received a $50,000 D-Bond from the same judge.
A system that yields such disparate outcomes for people charged with similar crimes is in need of change.
Moving away from money bail isn’t just fair – it’s also sound policy, if done properly.