By: Caroline Brady
The Eighth Amendment of the United States Constitution asserts that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[1] The Constitution does not require bail but mandates that when bail is given, it cannot be excessive.[2] The Supreme Court held that bail is excessive when it is set at an amount any higher than necessary to achieve the government’s purpose.[3] This is a subjective test and bail must be set according to the circumstances related to each particular defendant.[4]
A criminal defendant is released on bail when the court finds that they are neither a danger to the community nor a flight risk. The premise behind cash bail is that a criminally accused person will pay cash to the court to be released pretrial.[5] Such payment serves as a promise to return to court.[6] Alternatively, courts can release criminal defendants on personal recognizance bonds. A person released on a personal recognizance bond is released based on their pledge to return to court rather than a payment of money.[7] If, conversely, the court finds probable cause that a person does pose a danger to the community or is a flight risk, the court can order that person to be held pretrial.[8] This means that the defendant will remain in jail until their trial commences or their case is otherwise resolved.
Recent gains made by the criminal justice reform movement have increased the discussion surrounding cash bail reform. Those in favor of ending cash bail argue it contradicts Constitutional rights, furthers systemic inequality in the criminal justice system, and is ineffective.[9]
A cornerstone of American criminal law is the presumption of innocence, or the notion that a criminal defendant is legally innocent of the charges brought against them unless and until the prosecution can prove the charges beyond a reasonable doubt.[10] The presumption of innocence has roots in the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution.[11] Yet, in the U.S., more than 400,000 people are in jail awaiting trial, making up 69% of the city and county jail population.[12] In effect, the majority of the local jail population is comprised of legally innocent people who have not been found guilty of a crime.
While some of these people are held pretrial because the court has found them to pose a danger to the community, many of them would be released if they could afford to pay their cash bail.[13] People who are held pretrial are more likely to be convicted of the charges against them.[14] For those who cannot afford their bail, the only other way to get out of jail may be to accept a plea deal.[15] Thus, people are further incentivized to take a plea deal regardless of their guilt. Once these individuals plead guilty, they are more likely to be sentenced to jail time than those who were not detained pretrial.[16] Hence, criminal defendants’ inability to pay cash bail can serve as motivation to forgo their right to a jury trial in order to potentially get released from jail sooner.
The cash bail system creates what some refer to as a two-tiered system of justice: one for the rich and one for the poor.[17] While some can afford to pay their cash bail and return home to their families and jobs, others charged with the same crime cannot. With 80% of people involved in the criminal legal system being indigent, the requirement of cash bail further entraps impoverished people in the system.[18] Those who cannot afford to pay bail and are held pretrial may lose their jobs, exacerbating the issue of poverty.[19]
Furthermore, the cash bail system disproportionately impacts communities of color. These communities, particularly Black and Latinx communities, suffer higher rates of poverty and are therefore less likely to be able to afford bail.[20] Additionally, Black people are ordered to pay bail at higher rates and in greater amounts than similarly situated white people.[21] As a result, 43% of the pretrial detention population is Black, despite Black people comprising only 13.6% of the U.S. population.[22] The cash bail system intensifies the oppressive nature of the criminal legal system towards people in poverty and people of color.
Supporters of cash bail argue it is necessary to prevent people from committing more crimes and ensure they return to court. However, data not only fails to support the notion that pretrial detention improves public safety, it actually points to an increase in recidivism for those held pretrial. Studies show that people held in pretrial detention for more than 23 hours– which is often because of their inability to pay bail– are consistently more likely to be rearrested for future crimes.[23] Moreover, studies show that people released on personal recognizance bonds and people released after paying cash bail return to future court hearings at approximately the same rate, suggesting the inefficacy of cash bail.[24] The cash bail system is ineffective at reducing recidivism and increasing the likelihood of defendants returning to court.
In 2023, Illinois became the first state in the U.S. to completely eliminate cash bail.[25] The Illinois Safety, Accountability, Fairness, and Equity-Today Act (SAFE-T) was passed in 2021 and went into effect in September 2023.[26] Prosecutors and sheriffs from over sixty different counties in Illinois caused the two year delay by suing the state and challenging the constitutionality of SAFE-T.[27] Ultimately, the Illinois Supreme Court found the act to be constitutional, holding that money is not the only way to ensure a defendant’s presence in court and the safety of the public.[28] The Court further addressed opponents’ concerns about victim safety, pointing out that the act still authorizes pretrial detention of people charged with dangerous crimes.[29]
Once the SAFE-T Act went into effect, courts were to assume that every criminal defendant was eligible for pretrial release.[30] The burden shifted to the government to prove that a defendant should be detained.[31] According to Judge Mary Marubio, the Cook County judge who oversees pretrial detention hearings, the transition has been smooth.[32] She explains that other than the court no longer being able to order money as a condition of a person’s release, not much has changed.[33] While some rural counties are feeling the effect of expanding their pretrial release supervision programs, Rock Island public defender Hany Khoury posits that the benefits outweigh the costs.[34] Khoury explains that the transition to no cash bail went “better than expected.”[35]
With the implementation of the law being so recent, there is insufficient data to reach conclusions regarding the new system’s impact on recidivism.[36] Nonetheless, civil rights groups continue to call for other states to follow Illinois’s lead and adopt a similar no-cash-bail system.[37] Because the courts still retain the power to detain people pretrial and to order conditions of release, such as pretrial supervision, the only significant change is that people no longer have to pay to be released.[38] As robust research has now shown that cash bail systems infringe upon constitutional rights, worsen systemic inequality, and fail to work, more jurisdictions should mimic Illinois and eliminate cash bail as a condition of release.
[1] U.S. Const. amend. VIII
[2] U.S. v. Salerno, 481 U.S. 739, 752-3 (1987).
[3] Stack v. Boyle, 342 U.S. 1, 5 (1951).
[4] Id.
[5] Zachary Vancil, Elimination of Cash Bail in Illinois: Accessing Risk of Defendants Using Risk Assessment Tools, 48 S. Ill. Univ. L. Rev. 157, 157-8 (2023).
[6] Id.
[7] Personal Recognizance Definition & Legal Meaning, The L. Dictionary, https://thelawdictionary.org/personal-recognizance/.
[8] See Salerno, 481 U.S. at 748.
[9] See Allie Preston, The Case for Cash Bail Reform, The Ctr. for Am. Progress (Aug. 9, 2023), https://www.americanprogress.org/article/the-case-for-cash-bail-reform/.
[10] See Pamela Ferguson, The Presumption of Innocence and its Role in the Criminal Process, Crim. L. F. 131, 132 (2016).
[11] Id.
[12] Pretrial Detention, Prison Pol’y Initiative, https://www.prisonpolicy.org/research/pretrial_detention/#:~:text=Percent%20of%20people%20in%20city,being%20held%20pretrial%3A%2069%25%20%2B (last updated Feb. 14, 2024).
[13] Report: The End Money Bail Act, Data for Progress, https://www.filesforprogress.org/memos/money-bail-memo.pdf
[14] Id.
[15] Id.
[16] Id.
[17] Preston, supra note 9.
[18] Id.
[19] Supra note 13.
[20] The Elimination of Cash Bail, NAACP, https://naacp.org/resources/elimination-cash-bail.
[21] Preston, supra note 9.
[22] Supra note 12; Black or African American alone, percent, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/US/RHI225222.
[23] The Hidden Costs Of Pretrial Detention Revisited, Arnold Ventures (Mar. 21, 2022), https://craftmediabucket.s3.amazonaws.com/uploads/HiddenCosts.pdf.
[24] Supra note 20.
[25] 725 Ill. Comp. Stat. Ann. 5/110-1.5 (LexisNexis 2023); All Things Considered, Illinois is Now the First State to Eliminate Cash Bail, NPR, at 00:07 (Sept. 18, 2023), https://www.npr.org/2023/09/18/1200223477/illinois-is-now-the-first-state-to-eliminate-cash-bail.
[26] Vancil, supra note 5 at 161-62.
[27] Illinois Becomes First State to Abolish Cash Bail, Equal Just. Initiative (Sept. 20, 2023), https://eji.org/news/illinois-becomes-first-state-to-abolish-cash-bail/.
[28] Rowe v. Raoul, 2023 IL 129248, ¶ 29.
[29] Id. at ¶ 40.
[30] Trisha Trigilio, The Illinois Supreme Court Cash Bail Ruling, Explained, ACLU (July 21, 2023), https://www.aclu.org/news/criminal-law-reform/the-illinois-supreme-court-cash-bail-ruling-explained.
[31] Id.
[32] All Things Considered, The Next Steps Now that Illinois has Abolished Cash Bail, NPR, at 02:45 (Dec. 25, 2023), https://www.npr.org/2023/12/25/1221536317/the-next-steps-now-that-illinois-has-abolished-cash-bail.
[33] Id. at 02:55.
[34] Id. at 3:01; Kyle Bales, 2 Months of No-cash bail: How Illinois Courtroom Handles New Law, KWQC (Nov. 18, 2023), https://www.kwqc.com/2023/11/19/2-months-no-cash-bail-illinois-how-local-courtroom-is-handling-new-law/.
[35] Kyle Bales, 2 months of no-cash bail: How Illinois courtroom handles new law, KWQC (Nov. 18, 2023), https://www.kwqc.com/2023/11/19/2-months-no-cash-bail-illinois-how-local-courtroom-is-handling-new-law/.
[36] See supra note 32 at 03:20.
[37] See, e.g., supra note 30.
[38] See id.