The SAFE-T Act’s impact on cash bail in Illinois
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The SAFE-T Act’s impact on cash bail in Illinois

There is ample evidence that even short periods of pretrial detention can result in lost employment, severed social ties, a greater risk of conviction, and an increased likelihood of future criminal involvement.

In January, the Illinois General Assembly passed House Bill 3653, the Illinois Safety, Accountability, Fairness and Equity—Today (SAFE-T) Act. The sweeping 764-page legislation contains substantial reforms in the areas of policing, pretrial detention, and corrections. Perhaps most notably, the Illinois SAFE-T Act will soon make Illinois the first state to completely abolish cash bail.  

With the law set to take full effect in less than three months, several Illinois officials have publicly criticized the bill. Illinois State House Republican Leader Jim Durkin, for example, called the elimination of cash bail “a horrible slap in the face to victims and neighborhoods desperately seeking safety.”

Sangamon County State’s Attorney Dan Wright and County Sheriff Jack Campbell filed a lawsuit against Illinois Gov. J.B. Pritzker and others, questioning the constitutionality of the law.  

There are some flaws with the pretrial components of the SAFE-T Act that merit discussion, but it is first important to consider clearly the proper intent of cash bail within the criminal justice system. Cash bail is meant to be a pretrial release mechanism that encourages suspects to show up for court dates. A sum of money determined by the court is paid by the defendant and is refunded after the defendant shows up for their court appearances. This provides a financial incentive for defendants to attend their required court dates.  

Proponents of cash bail sometimes identify an additional purpose: protecting public safety. The theory is that setting high bail amounts is an effective strategy for ensuring that dangerous individuals remain detained during the pretrial process. However, criminal justice reform advocates contend that cash bail is unfair because, in effect, an individual’s likelihood of pretrial release is highly dependent on their economic status.  

There is ample evidence that even short periods of pretrial detention can result in lost employment, severed social ties, a greater risk of conviction, and an increased likelihood of future criminal involvement. For example, a recent study in The Journal of Law and Economics found that being detained increased the likelihood of being convicted regardless of whether the accused is innocent or not, and even more so when the accused is a person of color. Another study in The Journal of Legal Studies found that longer periods of pretrial detention are associated with recidivism.  

It should be noted that in the U.S. legal system, individuals suspected of a crime are presumed innocent until proven guilty. Defendants awaiting trial are, by definition, presumed innocent. Consequently, punishment is not a proper function of bail. Collateral consequences of pretrial detention and economic hardships endured to make bail, therefore, cannot be justified as deserved penalties. 

With these understandings in mind, one can more reasonably evaluate the disparate claims of proponents and critics of the Illinois SAFE-T act.  

Critics of the SAFE-T Act most frequently cite public safety concerns arising from the elimination of cash bail. However, cash bail is not the most effective tool to ensure that dangerous individuals are kept away from the community. Public safety concerns are more appropriately dealt with by determining whether a defendant is eligible for bail, or pretrial release, to begin with. Illinois statute (Sec. 110-6.1.) specifies the circumstances under which an individual may be denied under pretrial release. Generally, those include circumstances in which the defendant is charged with a forcible felony or other serious crime, and it is alleged that the defendant’s release poses a specific, real and present threat to any person or the community. To the extent that critics of the SAFE-T Act are concerned about public safety, their focus should be on these conditions for pretrial detention.   

But the relationship between pretrial detention and public safety is not as straightforward as critics of the SAFE-T Act might assume. There is evidence that pretrial detention can reduce the likelihood that an individual will commit an additional offense while awaiting trial. This is primarily due to the incapacitation effect of pretrial detention. A 2019 study published in The Journal of Law and Economics examining criminal cases in New York City found that pretrial detention reduced the probability of being rearrested by 12.2 percentage points for felony defendants and 10.6 percentage points for misdemeanor defendants. However, the same study found that these short-term benefits were offset in the longer term by future arrests. These findings are consistent with other research which suggests that pretrial detention results in higher rates of recidivism.  

So long as bail amounts are reasonable and appropriately consider individuals’ financial circumstances, cash bail is a reasonable tool for encouraging court attendance. Unfortunately, bail amounts are often excessive, and judges rarely consider defendants’ ability to pay. Many people remain in jail during the pretrial process, not because they are a danger to society or because they are a flight risk, but because they cannot afford the price of their freedom.

Ironically, Illinois statute allows judges to deny pretrial release to some individuals with a high likelihood of willful flight (Sec. 110-6.1 (7)). The elimination of cash bail means that judges have one less tool to address flight risk, running the risk of increased reliance on pretrial detention in these cases.  

The SAFE-T Act contains many beneficial reforms across the justice system, but it is not without flaws. As policymakers consider potential revisions to the law, they should proceed with a clear understanding of the purpose of cash bail and rely on evidence from empirical research. Ultimately, critics and proponents of the SAFE-T Act would benefit from coming together and forging a common-sense compromise that protects both public safety and individual liberty.