February 22, 2021
Recently, Cook County, the State of Illinois and other jurisdictions across the U.S. have begun to implement policy changes to reduce reliance on monetary bail and release more individuals while awaiting trial. These changes come amid a national push to make the criminal justice system more fair and reduce the number of criminal defendants held in jail pretrial based on their inability to pay bail. The federal system in Washington, D.C. eliminated cash bail in the 1990s.
In the move away from a resource-based system to a risk-based system, the goal is to maximize public safety while reducing unnecessary detention and the monetary burden on individuals and their families. Research has found that pretrial detention for any amount of time, even just two or three days, leads to worse case outcomes than for defendants released pretrial, including an increased likelihood of pleading guilty, being convicted and receiving longer sentences and future criminal justice system involvement. While other research finds that pretrial detention may reduce pretrial crime and failures to appear in court in the short-term due to immediate incapacitation of the defendant, it also shows that pretrial detention has minimal effects on overall crime and negatively impacts a defendant’s ability to build an adequate defense or negotiate a settlement with prosecutors. It also results in negative social and economic outcomes by affecting a person’s ability to work and care for family.
The Illinois General Assembly passed a broad criminal justice reform bill, HB3653 SA2, on January 13, 2021 that institutes many new pretrial process changes, among other policing and sentencing reforms. Illinois Governor JB Pritzker signed the bill into law on February 22, 2021. The new law abolishes the use of cash bail in pretrial release decisions effective January 1, 2023 and establishes new processes for pretrial release and detention decisions. This law makes Illinois the first state to explicitly prohibit the use of money in pretrial detention decisions. For a summary of the full bill,
This blog post discusses the results of bail reform efforts that have taken place in Cook County, Illinois and around the U.S., and the work that the Illinois Supreme Court Pretrial Implementation Task Force is undertaking as Illinois moves toward the elimination of cash bail and other significant pretrial reforms.
Bail Reform in Cook County
Cook County has implemented several initiatives in recent years to reduce the use of money in pretrial release decisions in felony and misdemeanor criminal cases. In 2015 Cook County began using the Public Safety Assessment (PSA) tool developed by the Laura and John Arnold Foundation. Utilized by approximately 40 jurisdictions nationwide, the PSA produces a risk assessment score for each criminal defendant based on the likelihood of the defendant to appear in court and to commit another crime, and provides judges with a release recommendation including a recommended pretrial supervision level. This information is intended to aid judges in their release decisions, but is not intended to replace judicial discretion and consideration of other factors in each case.
In 2017 Cook County Chief Judge Tim Evans issued General Order 18.8A, which directed bond court judges to maintain a presumption against requiring monetary bail in their release decisions, and to order the least restrictive conditions necessary to reasonably assure the appearance of the defendant for further court proceedings. Under the Order, judges are required to first determine whether a person should be released or detained pretrial. In cases where the judge determines that money bail is necessary, the judge must order an amount that is affordable to the defendant.
Following the 2017 reforms, the Chief Judge released a report in 2019 evaluating the efficacy of the new policy. The report stated that after the implementation of the Public Safety Assessment and General Order 18.8A, the Cook County jail population (90% of which consisted of pretrial defendants) fell from approximately 10,000 in January 2014 to under 6,000 by December 2018. The report asserted that this was largely due to an increase in the number of people released pretrial on recognizance bonds and a reduction in unaffordable bail amounts. There was also an increase in the number of people held in jail without bond for violent crimes. The analysis found no increase in violent crime after judges began reducing or eliminating cash bail for pretrial defendants; only 0.6% of all defendants released were later charged with new violent crimes (although later analyses showed that this number could be as high as 2.4% depending on the definition of “violent crime”). The report cited
With the rise in shootings and homicides in Chicago during the COVID-19 pandemic and civil unrest following the death of George Floyd, City officials attributed crime increases to Cook County’s bail reform efforts. City of Chicago officials repeatedly blamed increases in crime during summer 2020 on bond court judges releasing violent pretrial defendants, but did not cite data substantiating these claims. The statements were difficult for the public to assess because there is no readily available data set showing how many new crimes are being committed by individuals on pretrial release. However, Cook County officials have defended bail reform, citing research indicating that the County’s bail reform efforts did not lead to increased crime in Chicago.
A November 2020 report by researchers at the Loyola University Chicago Center for Criminal Justice Research, Policy and Practice took into account the critiques of the Chief Judge’s 2019 study when designing their evaluation and still found that General Order 18.8A did not lead to an increase in crime in Cook County following its implementation. The report, which analyzed bond court orders over equal time periods before and after implementation of General Order 18.8A, concluded that releasing more people pretrial as a result of bail reform had no effect on the level of new criminal activity committed by those released defendants: 17% of defendants out on release were charged with a new criminal offense both before and after the General Order; and 3% had a new violent criminal case filed both before and after implementation. While the analysis found no increase in criminal activity, it did find that the General Order was associated with a slight increase in failures to appear in court: 17% of released pretrial defendants failed to appear for court hearings before implementation of General Order 18.8A compared to 20% who failed to appear at court hearings after
Results from Outside Illinois
New Jersey is commonly regarded as an example of successful pretrial reform. The impetus for legislative change emerged when 2013 data revealed that 12% of the New Jersey jail population was held solely due to inability to afford $2,500 or less in bail. Under the former bail system, low risk defendants who could not afford their bail were often held in jail while defendants with access to money could post bail and be released, regardless of the risk they posed to the community. New Jersey’s Criminal Justice Reform legislation, which took effect January 1, 2017, authorized several changes, including the presumption of release for all defendants (excluding those facing life sentences), a speedy trial provision to reduce the time between arrest and trial, improved electronic and phone monitoring and the tightening of allowable causes for detainment.
New Jersey now uses the PSA to provide judges with an objective analysis of the likelihood that a defendant will be arrested for a new crime or fail to appear in court. The new pretrial process allows for the release of low risk defendants by law enforcement on a summons or the detainment of higher risk defendants who are then brought before a judge for a hearing to determine pretrial release.
The outcomes of New Jersey’s Criminal Justice Reform were significant. The New Jersey Courts found that in the first year after reforms were implemented, pretrial jail population decreased by 20% and those detained consisted largely of individuals accused of violent crimes and other serious offenses. The jail population as of October 2019 had declined by nearly 50% since October 2012. Additionally, despite more defendants being released, the rate of indictable new criminal activity among those released has remained consistently low (under 14%). Violent crime rates decreased (from 245 incidents per 100,000 people in 2016 to 208 per 100,000 in 2018) and court appearance rates remained consistently high (about 90%), virtually the same as before the reforms were passed.
Mecklenburg County, North Carolina was one of the first jurisdictions to implement the PSA in 2014. An evaluation of pretrial reforms in Mecklenburg County conducted by the MDRC Center for Criminal Justice Research found that the use of money bail declined 21% throughout the six months following the implementation of the PSA and related pretrial policy reform, and there was no evidence of changes in court appearance rates or new criminal activity. Although the PSA has attracted some criticism for racial bias based on its reliance on past conviction data, a second MDRC study on Mecklenburg County concluded that the PSA succeeded in reducing pretrial detention for black and white defendants at equal rates.
In Maryland, a
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The examples discussed here and many others across the nation show that reducing the use of bail and pretrial detention can be done with minimal impact to public safety. However, bail reform efforts in New York State have suffered some setbacks. In April 2019, new state legislation mandated pretrial release without money bail for defendants charged with most misdemeanors and nonviolent felonies, ultimately banning bail or remand in 85% of cases. The law also required courts to consider a defendant’s ability to pay bail and increased imposition of non-monetary conditions such as educational involvement and mandated treatment. New York’s law was criticized for being charge-based, thereby eliminating judicial discretion to consider public safety in their release decisions.
Following the reforms, the New York City jail population decreased sharply. However, an NYPD report released in February 2020 cited a 22.5% increase in crime over the prior year, with 482 people who had been released pretrial without cash bail having committed 846 new crimes. It blamed these outcomes on recent criminal justice reform, including the 2019 bail law.
Bail reform proponents expressed concerns about the limited time frame of the data in the NYPD report. Following push-back from law enforcement officials, the state legislature passed a 2020 amendment that added back certain charges as money bail-eligible (including misdemeanors, nonviolent felonies and violent felonies), offered additional non-monetary pretrial conditions and increased data tracking and public reporting requirements.
New York’s pretrial jail population has remained significantly lower than in the pre-reform era. However, it may still be too early to determine other outcomes of the amendment, and state data detailing the effects of the law will not be available until July 2021.
Illinois Supreme Court Pretrial Practices Implementation Task Force
Efforts organized by the Illinois Courts are underway to implement statewide pretrial reforms in Illinois, and lessons learned in other states will be critical to ensuring that policies and procedural changes are set up to succeed.
The Illinois Supreme Court formed a Pretrial Practices Implementation Task Force in July 2020 charged with helping the Supreme Court determine how to implement recommendations made in the final report of the Commission on Pretrial Practices released in April 2020. The Pretrial Practices Commission was formed in 2017 to study best practices and make recommendations for changes to laws, practices and procedures to ensure that the pretrial system in Illinois is consistent and uniform across the State and based on legal evidence-based practices. The Commission’s final report made 54 comprehensive recommendations spanning the entire pretrial system. They include implementing a comprehensive statewide data collection system, implementing a statewide risk assessment and creating a statewide pretrial services structure.
The Pretrial Practices Commission’s final report pointed to the experiences of other states including New Jersey and New York, and concluded that the necessary first step prior to eliminating cash bail is establishing a robust and effective pretrial system and dedicating adequate resources to allow for evidence-based risk assessment and pretrial supervision. There are two main pretrial functions: 1) collecting information about a defendant to help the bond court judge make an informed release decision; and 2) performing pretrial supervision of defendants released while awaiting trial. While Cook County and many other counties in Illinois already have dedicated pretrial services staff and utilize pretrial risk assessment tools, there is no uniform standard across the State, and many counties lack the resources to perform pretrial functions. Approximately half of Illinois counties (mostly counties with small populations) have no pretrial program.
The Implementation Task Force is charged with establishing a process by which each county in Illinois would offer pretrial services using the same set of statewide standards—a difficult task given the lack of uniformity in the way Illinois jurisdictions handle pretrial processes. A problem that further hinders policymakers and local officials from evaluating pretrial outcomes is the difficulty of obtaining the data necessary to assess the pretrial system: how many people are charged with crimes, appear in bond court, are admitted to jail or released pretrial and the outcomes associated with those released pretrial—rates of appearance in court and new crimes committed by those on pretrial release. Each local criminal justice agency including police, county sheriffs, circuit court clerks and probation departments (housed under each county’s Chief Judge) maintains its own data system. The Task Force and the Administrative Office of the Illinois Courts are working to establish a statewide data collection and evaluation process.
With the passage of a comprehensive Illinois criminal justice reform bill (HB3653 SA2), pretrial reforms are now on a two-year implementation schedule. The use of cash bail in judges’ pretrial release decisions will end on January 1, 2023, and with that a number of related pretrial policy and process changes will take place. The pretrial reforms in the legislation include the creation of a new process by which judges would determine whether a person charged with a crime should be detained or released while awaiting trial. The legislation creates a presumption of release and specifies the types of crimes that would be eligible for pretrial detention (including: forcible felonies ineligible for probation, stalking, domestic battery, violation of an order of protection, sex offenses and certain gun-related offenses when there is a determination the defendant poses a specific threat; or when a defendant has a high likelihood of willful flight). The bill includes many provisions in line with recommendations made in the Illinois Supreme Court Pretrial Practices Commission report.
During House and Senate hearings on the reform bill in the days leading up to the its passage by the General Assembly, Task Force Chair Hon. Robbin Stuckert, Presiding Judge of the Illinois 23rd Judicial Circuit, provided testimony with suggested changes to a prior draft of the bill. Some of those suggestions were included in the final version of the bill, including delaying the effective date of the elimination of cash bail by two years in order to provide sufficient time for the State to put proper pretrial structures in place, and putting the Administrative Office of the Illinois Courts in charge of pretrial data collection. Other suggestions, including the addition of some violent offenses to be considered as eligible for pretrial detention, concerns about allowing monetary sanctions for violations of pretrial release terms in less serious offenses, and the ability of judges to specify pretrial release conditions in arrest warrants, were not incorporated into the final version of the bill. The preventive detention portions of the law and understanding how the bill will be implemented in practice will be a central part of the Task Force’s work going forward.
The Pretrial Practices Implementation Task Force will play a critical leadership role in moving Illinois from a resource-based system to an evidence-based and risk-based system through implementation of the criminal justice reform bill.
For more information about Illinois’ criminal justice reform bill and the Illinois Supreme Court Pretrial Implementation Task Force, see the following links:
Letter to the Editor on Pretrial Reforms – Honorable Robbin Stuckert, Chair of the Illinois Supreme Court Commission on Pretrial Practices
Illinois Justice Project: Breaking Down the Elements of HB3653
Illinois Municipal League Summary of HB3653
Coalition to End Money Bond: Summary of the Pretrial Fairness Act
Capitol News Illinois: “Legislation revamps police certification, use of force and cash bail”
NBC Chicago: “HB 3653: Here's a Look at What's Included”
WBEZ: “6 Key Reforms In The Massive Criminal Justice Bill Illinois Lawmakers Passed Last Week”
NPR Illinois: “Here's What That Bill Ending Cash Bail Does”
Central Illinois Proud: “Illinois leaders explain impact if cash bail ends”
NBC News: “Did Illinois get bail reform right? Criminal Justice advocates are optimistic”