On January 13, 2021, Illinois lawmakers voted to pass a criminal justice bill, H.B. 3653, that would end the use of cash bail and impose significant changes for policing, such as stricter training policies, transparency in law enforcement, and accountability measures (ILGA, 2021). Aside from the elimination of monetary bail, the bill would put an end to suspended licenses for a failure to pay, require all police officers to wear body cameras by 2025, and ban police departments from acquiring military equipment.
This was considered a step in the right direction, as pretrial detainees make up more than 70 percent of the United States jail population (536,000 people), much of which can't afford bail (Wagner, 2019).
Cash bail is an amount of money posted that needs to be deposited in order to release the defendant from pretrial detention and is used as a guarantee that the individual will return for a trial or hearings (Onyekwere, 2019). The money is returned after the defendant makes all of the necessary court appearances, otherwise the bail is forfeited to the government. If the defendant is unable to pay the deposit through their personal funds or through a commercial bail bondsman, they remain incarcerated until their case is resolved or dismissed in court.
The United States is one of few countries in the world with a cash bail system that is controlled by commercial bond companies, which discriminates against people of color and low-income people. The Prison Policy Initiative found that most people who are unable to meet bail fall within the poorest third of society (Rabuy ad Kopf, 2016). The Bureau of Justice's 2015 statistics reveal that incarcerated people had a median income of $15,109 prior to their incarceration, which is less than half (48%) of the median of non-incarcerated people. The statistics are much worse for incarcerated Black men and women, as their median incomes prior to incarceration were $11,275 and $9,083, respectively, falling below the Census Bureau poverty threshold. With these statistics, it is apparent that the money bail system is set up so that the ability to pay a bond is impossible for many individuals.
The income data reveals that those detained for a failure to pay a bail were living below the poverty line, therefore making it unrealistic to expect defendants to quickly gather thousands of dollars. The median bail amount in the United States represents eight months of income for a typical detained defendant.
Since the beginning of the COVID-19 pandemic, however, more people have been released, rather than detained, before trial and low-level offenders are being sentenced to home confinement. Police officers have been giving warnings instead of arrests for low-level offenses and prosecutors have created policies against charging those who committed these offenses (Flanders and Galoob, 2020).
Driven by the fear of COVID-19 outbreaks in jails and prisons, correctional facilities have employed progressive prosecution policies to avoid being responsible for human suffering and costs of care. Progressive prosecution is based on acquiring justice for victims of crime as well for those accused of the crime committed. The promises of this kind of reform consist of reducing mass incarceration by prosecuting less individuals, avoiding high bail requests, and charging higher level offenses with the possibility of acquiring a reasonable plea deal. These goals, when applied in a broader context, can be articulated in three main results: reforming the institutions that are part of the criminal justice system, reducing the incarcerated population, and changing the way prosecution is approached. The pandemic gave these policies momentum and quickly gained favor among those who previously critiqued them.
The movement to end monetary bail, a policy that progressive prosecutors already endorsed, was effectively established overnight in many institutions for numerous offenses. Progressive prosecution reforms along with the implementation of the H.B. 3653 bill allow us to remove money bonds from the intersection of race, class, and gender and reshape the decision making process for determining who will be incarcerated, reducing the amount of marginalized communities behind bars.
References
Bill Status of HB3653. (2021, January 13). Retrieved January 13, 2021, from https://www.ilga.gov/legislation/BillStatus.asp?DocNum=3653&GAID=15&DocTypeID=HB&LegId=120371&SessionID=108&GA=101.
Flanders, C., & Galoob, S. (2020). Progressive Prosecution in a Pandemic. The Journal of Criminal Law and Criminology (1973-), 110(4), 685-706. doi:10.2307/48595411.
Onyekwere, A. (2019). How Cash Bail Works. Retrieved January 13, 2021, from https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works
Rabuy, B., & Kopf, D. (2016). (Rep.). Prison Policy Initiative. doi:10.2307/resrep27303
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