Imagine this scenario: you find yourself in a whirlwind of trouble, accused of and arrested for a crime. Your life is thrown into chaos, and as you stand before the court, it takes a mere 30 seconds to decide the fate of your freedom. Suddenly, your wallet becomes the key to your release. If you’re fortunate enough to have a stable job or come from a well-off background, buying your way out is a minor hiccup. But if you’re living paycheck to paycheck — like 60% of the population — lacking money could mean the cell door slams shut, leaving you caged. It is a system that seems to lock in those who can’t buy their way to liberty.
Now, fast forward to a different scenario. After being apprehended for that same offense, a pretrial risk assessment is conducted before you even set foot in court. If the assessment deems you low-risk, you’re released on the condition that you stay out of trouble and show up for your court date. Back to work, family and the chance to get your life back in order. If you’re deemed high-risk, a comprehensive court hearing awaits. This time, you can’t simply buy your way out. If you’re a threat to public safety or likely to flee, you are facing jail, ankle monitors or supervision.
This is what transpired with the implementation of the Pretrial Fairness Act in Illinois. What was once a system driven by wealth and privilege has shifted its focus to public safety, fairness and preserving freedom until guilt is proven.
Despite its existence of just two months, critics have wasted no time seizing upon instances in which released defendants have exhibited high-risk behavior or committed new crimes. However, such cases occurred under the old system too. The bail system, in any form, is inherently imperfect, teetering on the delicate balance between personal freedom and public safety, devoid of infallibility.
In reality, many individuals released under the current cashless bail system would have walked free under the previous one, too. This was highlighted recently in a Madison County case involving violent charges. Instead, it appears most violent offenders are now being detained without any chance of release, in contrast to the previous system where many could buy their freedom by posting high bail without regard to the potential community. For example, in Cook County, approximately 90% of detention requests for murder, attempted murder and carjacking resulted in detention. Those most impacted under the new system are often low-risk, non-violent individuals facing financial struggles. They can now await their day in court without feeling pressured into pleading guilty just to secure their release.
Managing a fragile equilibrium
Pretrial justice is the key to upholding accountability and ensuring public safety. It carries the weight of making challenging decisions and maintaining the fragile equilibrium between the rights of the accused and the protection of our communities. Those unfamiliar with the criminal justice system may not comprehend all its complexities or appreciate success stories when the process goes well. But prosecutors have a duty to seek the truth, and this may lead to dismissals or pretrial releases, often due to lack of evidence. Courts should only deprive someone of their freedom if there is a real risk of flight or substantial threat to public safety, meaning detention should only be used as a last resort and often won’t be an option for lower-level crimes. And when someone gets arrested while under supervision of probation or parole, other protections are in place to detain the defendant so pretrial detention is unnecessary.
The Illinois Pretrial Fairness Act aims to address these disparities and promote a more equitable pretrial system. It establishes a presumption of release for non-violent offenders and provides alternatives to cash bail for those who were detained. In the end, the act should create a more just, safe and fair system for all.
So which system do you prefer? One based on public safety or the size of a person’s bank account?
Lisel Petis is a former prosecutor and victim advocate and a resident senior fellow for Criminal Justice and Civil Liberties at the R Street Institute.
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