The New York Times is reporting today that the Illinois Supreme Court affirmed a measure that abolishes cash bail in the state. The court ruled that Democratic legislators had followed the appropriate procedures when enacting the law. This decision will bring about significant changes to the Illinois criminal justice system by restricting judges’ authority to detain defendants in jail prior to their trial.
The Illinois law received the signature of Governor J.B. Pritzker in February 2021, reflecting an ideological shift in the state’s political landscape. Pritzker had recently won re-election by a wide margin and Democrats kept legislative majorities, so this was something many Illinois voters wanted. Keep in mind that some 75 percent of Illinois’ population lives in Chicagoland, the broader metropolitan area surrounding the city of Chicago, encompassing both the city itself and its suburbs and counties. Chicagoland is excessively woke, especially the city.
The Illinois law surpassed bail reforms seen in other states, reflecting a broader nationwide effort by progressives to decrease jail populations and dismantle a system where an individual’s income and wealth often determines their pretrial release. The legislation had provoked strong opposition from county prosecutors and sheriffs, who contended that it was enacted through improper procedures and compromised public safety in the state. In its ruling today, the Supreme Court said cash bail would end in Illinois on Sept. 18.
For decades, cash bail has been extensively used, enabling defendants to remain free by depositing money with the court instead of staying in jail until their trial, which could be months away. However, there has been a longstanding advocacy by civil rights groups and progressive politicians and policymakers, primarily Democrats and the technocratic apparatus under their control, to limit or eliminate the system, advocating for the release of more defendants without requiring monetary deposits.
Progressives argue that the cash bail system unfairly disadvantages indigent defendants, as they risk losing employment or housing if they cannot afford bail. “Someone’s experience with the criminal justice system should not vary based on their income level,” Attorney General Kwame Raoul (a Democrat), said in a statement praising the 5-to-2 decision.
Conversely, law enforcement groups have expressed concerns about the potential impact on public safety. In a court brief, attorneys speaking for the union representing rank-and-file Chicago police officers expressed that the law “creates conditions for increases in crime, recidivism, dysfunction in the criminal prosecution system, and endangerment of police officers and the communities they serve.”
On the empirical landscape, some studies suggest that bail reforms, including cashless bail, can lead to a reduction in pretrial detention rates and contribute to lower recidivism rates without a significant increase in crime. These findings emphasize the potential benefits of reducing reliance on cash bail and using alternative methods of ensuring court appearances. Critics of bail reform argue that the elimination or reduction of cash bail may result in an increased risk of pretrial release for individuals who could potentially pose a threat to public safety. Research specifically examining the relationship between cashless bail and crime rates nationwide is limited, and the available evidence does not provide a clear consensus.
But Chicago’s police union understands what empirical studies do not convincing substantiate, that there are cases where the pretrial release of violent offenders results in harm to concrete individuals and their property. Moreover, Paul Cassell and Richard Fowles, in their 2020 research article “Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois,” found changes in pretrial release procedures in Chicago in 2017 resulted in a substantial rise in crimes committed by individuals released before trial.
When measured and estimated accurately, the number of released defendants charged with new crimes saw a 45 percent increase following the implementation of more lenient release procedures. The number of pretrial releasees charged with new violent crimes rose by 33 percent. Moreover, Cassell and Fowles found that a significant number of aggravated domestic violence cases were dropped by prosecutors after the changes, likely due to batterers being more frequently released and able to intimidate their victims into not pursuing charges.
Cassel and Fowles argue that public safety concerns cast doubt on the cost-effectiveness of the implemented bail reform measures in Cook County. Furthermore, since Cook County’s procedures serve as a model for many other jurisdictions across the country, this experience suggests that similar increases in crime may be occurring as a result of bail reform efforts elsewhere. Astonishingly, in the face of the evidence, Illinois moved ahead with its plan to eliminate cashless bail.
The interpretation that cash bail is discriminatory because some people can’t post bail misses the point that the reason many defendants can’t post bail is the same reason they’re committing crimes—not out of necessity, but because criminality and joblessness often reflect low self-control. Individuals with low self-control are prone to take the easy way out. The more desperate they are, the more dangerous they are. And we also have the problem of abusive men whose detention allows the woman (and her children) to escape situations of domestic violence.
As the longest serving US Commission on Civil Rights member Peter Kirsanow points out, the progressive argument advocating for the elimination or reduction of bail often centers around alleged racial disparities in pretrial detention. But as I have pointed out on Freedom and Reason, these disparities are not the result of invidious racial discrimination but are rather predictable and driven by the higher rates of crime committed by certain ethnic groups, particularly black individuals. Blacks are overrepresented in every crime category except “drunkenness” and “driving under the influence.” It is worth noting that there is a disproportionate number of black individuals who are victims of crime, particularly crimes committed by other black individuals. Progressive “bail reform” measures contribute to an overall increase in crime, particularly violent crime, with black individuals being disproportionately affected as victims.
We know what works in reducing crime and violence, especially in dealing with those with low self-control. The two major effective interventions are police presence, which functions as a deterrent, and incarceration, which functions as humane incapacitation. The more dangerous offenders there are in confinement, the fewer offenders there are on the streets preying on law-abiding citizens. Public safety is a human rights concern.
The United States Constitution addresses the issue of bail in the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” While this provision does not explicitly outline the specifics of bail, it prohibits the imposition of excessive bail. The interpretation and application of this provision are left to the courts, which have established legal principles and standards over time. Crucially, bail is not a violation of civil rights or the authors of the Bill of Rights would have forbidden it.
I understand that, in principle, there is an ethical problem surrounding pretrial detention. Technically, individuals are presumed innocent until proven guilty in a court of law. It doesn’t mean they are innocent, but they are presumed as such for the purposes of compelling the state to prove the case against them. If individuals are in principle innocent until proven guilty, then during their time in detention the state is confining an innocent person—again, technically.
However, the perpetrators of the most serious crimes are not usually unknown. The public safety effect of pre-trail detention is something that must be taken into consideration. It is very rarely the case that a person who is in jail for murder or robbery is going to be found not guilty. But when the police detain an individual and subsequently arrest him after an investigation, he is technically innocent at that point, too. When the police take a person into custody, put him in the back of a cruiser, and then lock him in a cell, the police are kidnapping him no more than they murder a suspect who is threatening them or the lives of others.
One might think that eliminating cash bail is one of the stupidest projects progressives could pursue. Except that I don’t think it’s stupid. Increasing the level of crime and disorder in society has a purpose. At the very least, beyond abstract empirical study, anybody with a working brain can see that it functions that way. If politicians and policymakers continue to pursue law and policy in the face of its detrimental impact on public safety, then clearly, this is something that they want to happen.
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