Most people involved in the nation’s criminal justice recognize the need for bail reform. However, most Americans, citing the fear of violent crime across the country, are adamantly opposed to any “bail reform” This opposition crosses political lines.
The Illinois SAFE-T Act evidenced this trend. Titled the Safety, Accountability, Fairness and Equity—Today Act, this legislation was enacted in 2021 by the Illinois legislature and designed to bring reforms to bail, policing, pretrial detention, sentencing, and corrections in that state.
A key component of this controversial legislation, known as the Pretrial Fairness Act, eliminated the state’s cash bail system and replaced it with one that gives judges the discretion to release people accused on non-money bail, unless they pose a specific and real threat to public safety or are assessed a high flight risk.
The legislation was to take effect on January 1, 2023.
This new bail component, however, drew an immediate backlash from conservative politicians and law enforcement. One hundred of the state’s 102 criminal prosecuting attorneys opposed the legislation.
The political opposition became so intense that the Illinois Supreme Court issued an order on December 31, 2022, blocking the elimination of the cash bail provisions of the SAFE-T Act. The ruling gave the Illinois Attorney General’s Office a chance for an expedited appeal process to challenge a lower court decision that declared the Pretrial Fairness Act unconstitutional. The lower court, however, did not stop the law from taking effect on January 1, 2023. That prompted the Illinois Supreme Court to intervene.
The proponents of the Pretrial Fairness Act would eliminate a cash bail system that keeps poor, low-risk people in jail while allowing wealthy, high-risk individuals to go free. Opponents countered with the single argument that the elimination of cash bail would let dangerous offenders go free at the expense of public safety.
To appease this opposition, legislative proponents agreed to tweak the Pretrial Fairness Act to create a list of crimes, some even non-violent, that would not be covered by the Act. That was not good enough for the legislative opponents.
The real issue in Illinois is that a Democratic-controlled legislature, supported by a Democratic governor and attorney general, wanted to bring about sweeping criminal justice reforms in response to the May 2020 murder of George Floyd by Minneapolis police. Conservative Republican lawmakers and the state’s law enforcement agencies vehemently opposed any George Floyd-inspired reforms. This political fear-based strategy was echoed effectively by Republican candidates throughout the country to encourage voter turnout.
The SAFE-T Act included these police reforms:
- Expansion of training for police officers
- Reforms to use of force policies, including limits on the use of deadly force, ban on chokeholds, requirements to provide aid after use of force, and to intervene if other officers use excessive force
- Prohibition on purchasing specific types of military equipment for police use
- Requirement for all law enforcement agencies to use body cameras by 2025
- Requirements on reporting deaths and use of force by police officers
- Reforms to police misconduct policies, including enhanced whistleblower protections, expansion of misconduct database, rules on the maintenance of police misconduct records, requirement to use of special prosecutors in officer-involved deaths, and removal of police discipline from union and collective bargaining agreements
- Establishment of new processes for decertification of law enforcement officers due to misconduct
- Increased funding and support for local law enforcement to adopt “co-responder” models where specially trained first responders or mental health professionals accompany law enforcement, particularly in response to substance abuse and mental health concerns
The Pretrial Fairness Act got swamped by the law enforcement backlash to the above police reforms.
Why is bail or any other criminal justice reform such a hard pill to swallow?
The answer is relatively simple.
So much of the nation’s criminal justice system, especially in the bail and policing arenas, has historically been infected with systemic racism. Reform requires an admission of this historic flaw and the continued stain that remains in the system. Opponents of reform refuse to make that admission.
That is the core reason for opposition to criminal justice reforms. Fear-based “tough on crime” rhetoric from politicians and those who profit from the criminal justice industry reinforces historical racism and uses it for personal gain.
Every individual charged with a crime in this country has a constitutional presumption of innocence. The Eight Amendment prohibits excessive bail. The original purpose of bail was to protect that presumption. That is no longer the case. This reality was evidenced recently when billionaire Sam Bankman-Fried, the founder of the cryptocurrency exchange FTX, was released on a $250 million bail after being charged with a “fraud of epic proportions” as described by prosecutors. Yet 70 percent of the roughly 600,000 people confined today in the nation’s more than 3,000 jails have not been convicted of a crime and cannot post a cash bail. Most of this 70 percent are disproportionately people of color who live in high-crime communities that are targets of excessive, aggressive, and racist policing. They are charged mainly with non-violent property or drug crimes and are low-risk defendants who cannot afford the few hundred dollars required to post a cash bond.
Speaking directly to the Illinois SAFE-T Act, the Center for American Progress cites the ways that such reforms enhance rather than undermine public safety as opponents of bail reform claim:
“The causes of the recent rise in violent crime are ambiguous and complex, leaving the door open for those who seek easy answers or to place the blame on criminal legal reform policies. Despite a growing body of evidence that bail reform policies are not linked to rising crime rates, they are a target for those looking to score political points. What these sound bites and scare tactics fail to capture is that current practices in cash bail systems undermine public safety and increase recidivism. Cash bail has been associated with a 6 percent to 9 percent increase in recidivism. Pretrial incarceration, which is a frequent result of unaffordable cash bail, has a ‘criminogenic effect,’ meaning that it increases, rather than decreases, crime. The system further harms public safety by putting at risk individuals’ and communities’ health, economic stability, employment, familial relationships, and housing at risk—and has been doing so for decades. Cash bail reforms are the antidote to a system that is rooted in systemic racism and that perpetuates racial and economic disparities throughout the criminal legal system.”
If the Illinois Supreme Court accepts the arguments of the state’s Attorney General and upholds the Pretrial Fairness Act, Illinois will become the first state in the nation to fully eliminate cash bail.
We hope the court does precisely that.