We’ve Joined 400+ Organizations in Urging the Illinois Supreme Court to Affirm the Constitutionality of the Pretrial Fairness Act
Chicago Appleseed Center for Fair Courts and the Chicago Council of Lawyers have joined the 37 members of the Illinois Network for Pretrial Justice and 389 other national, state, and local organizations in submitting an amicus brief to the Illinois Supreme Court in the case of Rowe vs. Raoul, which considers the constitutionality of the Pretrial Fairness Act. The brief, filed by the ACLU of Illinois and the law firm of Hughes, Socol, Piers, Resnick & Dym Ltd., argues forcefully that the Illinois Supreme Court should uphold the constitutionality of the Pretrial Fairness Act and allow the end of money bond to proceed in Illinois. We are proud to support the brief.
We believe fully that the Pretrial Fairness Act is constitutional. The abolition of money bond and the alternative system created by the Pretrial Fairness Act will improve public safety, maintain high court appearance rates, and help protect Illinoisans constitutional rights.
The brief’s authors entered the argument as amici (friends of the court) to argue against a December, 2022 ruling from a Circuit Court Judge in Kankakee County which held that the Pretrial Fairness Act’s elimination of money bond violated the Illinois Constitution’s Crime Victims Rights Amendment and Separation of Powers Clause and was therefore unconstitutional. The reason eliminating money bail was ruled to be unconstitutional was because the Circuit Court believed that money bond was a necessary tool for courts to ensure the safety of the public and ensure that people return to court. But, as the amicus brief makes clear, the lower court’s entire argument rests on incorrect premises. In fact, money bond harms public safety and does not ensure appearance in court. As the amici note, “restrictions on the judiciary’s ability to impose a wholly ineffective pretrial condition cannot unduly infringe on judicial authority.” Put simply, money bond doesn’t work. And because it doesn’t work, judges have no inherent authority to continue to use it.
Although many people assume that the word “bail” refers to money, in fact, “bail” has always referred to any process of releasing someone from custody, whether or not it involves money. When our courts make bail determinations (decisions pertaining to an accused person’s incarceration or release) they attempt to satisfy two basic goals: (1) the safety of the public; and (2) assurance of future court appearances. Although many in the general public and some of those working within the court systems assume money bond is a legitimate tool available to courts to help judges achieve these ends, the reality is far different. Instead, the prolific use of money bond by our courts across the state strands thousands of people who represent no safety threat in jails every year unnecessarily, and allows those with access to wealth to purchase their freedom. The reality is that the Pretrial Fairness Act will both improve public safety and maintain high court appearance rates.
Last year alone, over 170,000 people were admitted to jails and detained pretrial across Illinois. Most of them were incarcerated pretrial as a result of their inability to afford the bond amount set in their case, and up to half will be released at the conclusion of their case without serving additional jail or prison time.
In other words, many of these people could have avoided the harmful effects of pretrial incarceration completely were it not for the money bond system. Instead, hundreds of thousands of Illinois residents, primarily from Black and Latinx communities, continue to bear the brunt of the harms created by our wealth based jail system. Housing, employment, child custody, mental and physical wellness, and overall community stability are all jeopardized by unnecessary pretrial incarceration.
Take for example Andrea, who the brief describes at the time of her incarceration as a 33 year old home-health aide and mother of three school-aged children. After being incarcerated in Cook County Jail on an unaffordable $100,000 money bond, she lost her job. When individuals lose their jobs due to their pretrial incarceration, a ripple effect is created often leaving family members dealing with evictions who must later make do with complicated or unsafe living conditions. But the ripples don’t stop there. The damage pretrial incarceration imposes upon personal relationships is equally severe. In 2018, it was estimated that over half of individuals detained in Illinois jails because of their inability to afford bail on any given day were parents of minor children. Even if incarcerated parents are able to avoid losing custody, prolonged periods of separation fueled by wealth-based jailing creates trauma in children and worsens their educational and behavioral-health outcomes. And of course, jails are dangerous, unsanitary, and traumatizing environments for the individuals held within them. The mental and physical health consequences produced by jailing can be permanent and can further interfere with an individual’s economic and social well-being even years after their release.
These are the realities created and perpetuated by our money bond system – a system, as the brief points out, that also fails to adequately protect victims or public safety because, “accused people…who do have access to money can often simply pay their way out of jail regardless of any danger they may pose to another person.”
Rather than improving public safety, the use of money bond and the resulting overuse of pretrial incarceration makes us all less safe in the long run.
In fact, the use of money bond actually appears to be correlated with an increased risk of future rearrest. Studies suggest that the economic hardship created by pretrial incarceration and the strain it places on personal relationships may make people more likely to become involved in the criminal legal system again in the future. As one study captured, the additional days people were jailed pretrial increased their likelihood of rearrest in the two years after the conclusion of their criminal case. Findings from a study conducted by Arnold Ventures in 2022 analyzing 1.5 million people who were jailed pretrial in Kentucky between 2009 and 2018 found that, “any amount of time spent in jail over 23 hours was correlated with approximately 1.5 times the likelihood of rearrest.”. Frighteningly, researchers have also found that even-short periods of incarceration can have a domino effect, not merely influencing an incarcerated parent’s likelihood of future rearrest but also increasing their child’s risk of future criminal conviction and criminal legal system contact.
As ineffective as money bond is at ensuring or promoting public safety, it is equally ineffective at promoting the other core component of bail determinations: ensuring that people released pretrial continue to appear in court as required through the conclusion of their case.
The brief describes studies of multiple jurisdictions that have eliminated or significantly reduced the use of money bond, including Cook County, Philadelphia, New Jersey, Yakima County, and more—all of which found that people were equally likely to appear in court following these bail reforms. In Illinois, after Cook County increased the use of non-monetary bonds (“I-Bonds”) and the number of people released pretrial as a result of a General Order by the Chief Judge in 2017, the percentage of people attending all court appearances remained above 80%.
The amicus brief describes a number of reasons that money bond is unnecessary to maintain appearance rates. First, most people return to court on their own, without needing any particular incentive. Second, the common argument that individuals released on money bonds are incentivized to return to court in the hopes that they will be refunded, does not match the reality that most bail money is simply not returned to the person who paid the bond – in Illinois, this money is typically retained by the courts in the form of fines and fees. As further stressed in the brief, “if imposing monetary bail as a pretrial release condition were truly necessary to incentivize people to return to court, the system would not be structured to apply the majority of money bonds to fines and to assessments.” Nothing in the text of the Pretrial Fairness Act will prevent courts from using a vast menu of tools that are demonstrably a more effective means of maintaining high rates of court appearance than money bond.
Fundamentally, the brief makes clear that the Kankakee County Circuit Court was wholly incorrect in asserting that the Pretrial Fairness Act’s elimination of money bond violates the Illinois Constitution. Judges have no inherent power to use this ineffective, harmful pretrial practice, and the legislature can and should change court practices that have been shown to hurt people without bringing society any benefit.
The signatories to the brief include hundreds of organizations from around the country. This diverse group of signers demonstrates the many different constituencies with an interest in ending money bond—including advocates for survivors of gender-based violence, advocates for immigrants, violence prevention groups, faith-based organizations, law professors, and national criminal justice reform organizations, to name only a few of the categories of signers representing 426 organizations and individuals. Ending money bond is an issue that impacts every corner of our society. It is essential that the Illinois Supreme Court rule the law constitutional and allow this transformative change to move forward.