It will be an enormous undertaking to completely change a practice that has been integral to our country’s deeply flawed criminal justice system, one that has disproportionately affected poor Black and Brown communities.
But every step counts in chipping away at inequities that have kept the wheels of justice from spinning evenly. The Illinois Supreme Court moved the needle in the right direction Tuesday in its 5-2 ruling that eliminates cash bail — a move this editorial board has supported in the past — making our state the first in the nation poised to do so.
When the law takes effect in September, the hope is it will balance the playing field without hurting public safety.
But bottom-line, it simply isn’t fair for people charged with low-level and nonviolent crimes to bide their time in jail while they await trial solely because they don’t have the cash more privileged suspects can withdraw within minutes.
As a Center for American Progress report from last year summed it up, because of “excessive cash bail, hundreds of thousands of people are incarcerated each year not due to any real public safety concern, but rather due to a lack of money.”
Despite what some right-wing politicians and activists have tried to convey in rabid misinformation campaigns, the Pretrial Fairness Act is not intended to allow thousands of violent men and women loose on the streets like a horde of zombies in an apocalyptic disaster film.
When lambasting Tuesday’s ruling as “a sad reflection of state of ideological capture in our three branches of government,” McHenry County State’s Attorney Patrick Kenneally said his office would “ensure that dangerous offenders remain behind bars pre-trial.”
That’s exactly what the law calls for. Judges can — and should — continue to keep dangerous suspects who pose a risk to society behind bars. And now, a violent suspect with money can no longer pony up to avoid jail.
The two Republicans on the state Supreme Court were the only dissenters in the decision that concluded that eliminating cash bail does not violate the Illinois Constitution.
It’s unthinkable that the five justices who ruled against the legal challenges to the Pretrial Fairness Act gave their ruling without much thought or consideration of the potential impact on crime victims and the public.
But as the ruling states, “Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims. The Act’s pretrial release provisions set forth procedures commensurate with that balance.”
Making it work
Elimination of cash bail doesn’t mean all criminal suspects will be released from custody pending trial.
For the most part, Illinoisans who have been arrested for minor offenses will be released until their cases have been resolved under the new law, which is part of state’s sweeping SAFE-T Act.
But others facing more serious charges, including murder and sexual assault, will have detention hearings in which a judge will determine whether they pose a danger to the public or are considered a flight risk. So many defendants will remain in jail.
And no matter the offense, even those that are low-level, a judge can still impose pretrial conditions, including electronic monitoring and house arrest, on those who are not held in jail.
Other states have tried various models of bail reform. Studies have shown that crime doesn’t increase significantly in places that have nearly eliminated cash bail.
Such statistics are encouraging, though as Harvard University researchers point out, few jurisdictions have rigorously evaluated their reforms. For that reason, it’s crucial that Illinois do so as the Pretrial Fairness Act takes hold.
Not every critic worried about the impact of eliminating cash bail is unreasonable. Concerns about public safety are legitimate, and tracking the new law’s effectiveness is essential. If the Act needs to be amended in any way, legislators need a solid base of information on which to make change.
There will be passionate naysayers ready to pounce if a suspect is released and then is charged with another crime — but that could happen even under a cash bail system. Data and evaluation can help prevent knee-jerk overreactions that deem the new law a dangerous failure before there’s a base of knowledge to draw upon.
Illinois is now firmly down the road of significant criminal justice reform. Now it’s time to make it work.
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