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In Chicago and Beyond, Bail Reformers Win Big in Fight to End Money Bail

Chicago is poised to stop incarcerating people just because they can’t pay their way out.

Chicago is poised to stop incarcerating people just because they can't pay their way out. (Photo: Marilyn Nieves / iStock / Getty Images Plus)

As of July 17, 2017, Cook County, which includes Chicago and the surrounding suburbs, is poised to become the largest jurisdiction in the country to stop incarcerating people pretrial, solely because they cannot post money bail. Thanks in large part to a sustained push by activists over the past several years, the Cook County Circuit Court’s Chief Judge has announced a new order that instructs judges making bail decisions to impose monetary bail only in amounts that people can pay. If judges follow the order, it could lead to the end of money bail in Cook County, setting a historic precedent on an issue that impacts hundreds of thousands of people around the country.

Right now, more than 4,000 people are incarcerated in Chicago’s Cook County Jail because they cannot post monetary bail. They have been granted release by a judge, but remain in cages because they cannot pay a certain amount of money to secure their freedom. This is the pretrial justice system wrought by money bail, and it is mirrored across the country: 443,000 people are incarcerated before trial in the US, 90 percent of them because they cannot afford to post a monetary bail. In fact, there are more people in US jails pretrial than there are total incarcerated people in most other countries.

Like the number of people in prisons, the number of people in local jails has more than tripled since the 1980s. In the last 15 years, 99 percent of that jail population growth has come from locking up people who are awaiting trial.

In theory, monetary bail is supposed to be used as an incentive to encourage people to return to court. If people show up to their court dates in Cook County, they will, in most cases, eventually get back almost all of the money that they paid for bail. Despite the idea that people are more likely to appear in court if they have money on the line, no study has ever found monetary bail to be more effective than other forms of bail. In fact, charitable bail funds in others places have shown that their clients come back to court at higher rates than people who posted their own bonds. Moreover, the idea that the likelihood a person will show up in court should be valued over their freedom should be challenged on its face. There are many reasons people do not show up for court, including lack of transportation or childcare, inability to take off work, fear, or instability resulting from other unmet needs like access to mental health care. Court systems seeking to increase court appearance rates should do so by addressing these needs rather than caging and punishing people pretrial.

We must also consider who is being denied their freedom. Not everyone is impacted equally by pretrial incarceration: Black, Latino and Native American people are detained at higher rates than people of other ethnicities, and Black people are hit the hardest. Nationally, they are incarcerated pretrial at five times the rate of white people and three times the rate of Latino people. Black women and women of color are much more likely to be incarcerated than white women, making up two-thirds of all women in local jails. For example, in 2011, 81 percent of the women who entered Cook County Jail were women of color, and 68 percent were Black women. Today, roughly 73 percent of all people in Cook County Jail are Black, though Cook County is only 25 percent Black.

Money bail exacerbates racial disparities at each step of the pretrial justice system. First, Black people accused of crimes are the least likely to be released without having to post any amount of money at all. If given a money bail, Black people received “significantly higher bail amounts than all other ethnic and racial groups.” Finally, Black and Latino defendants are less likely to be able to post a money bail if required to. Thus, our system’s reliance on money bail guarantees that white supremacy and unconstitutional disparate treatment remain central parts of our criminal legal system.

It is in this context that bail reform has become a national demand of the Movement for Black Lives and various other advocates for racial justice and opponents of mass incarceration. In December 2015, a group of more than 30 Chicago organizations, many falling under the Black Lives Matter umbrella, declared “Ending Money Bail” one of their shared policy-change goals for 2016. At the time, the newly formed Chicago Community Bond Fund (CCBF) — the only entity in Illinois dedicated solely to the issues of monetary bail and pretrial incarceration — had just posted bond for our first person as an organization. CCBF began to bail people out of Cook County Jail, share their stories and advocate for the end of money bond in its entirety.

Subsequently, a coalition of community-based groups and policy organizations in Chicago began organizing around the goal of ending monetary bond. Together, they formed the Coalition to End Money Bond. In the last year, the Coalition has testified at a Cook County Board hearing on money bail, drafted Principles for Bail Reform in Cook County that have been endorsed by more than 30 organizations, and introduced the most progressive and comprehensive bail reform bill during the 2017 legislative session.

At the same time, in a number of other states, civil rights attorneys were using litigation to address money bond’s role in rampant pretrial incarceration. Alec Karakatsanis of Civil Rights Corps was bringing dozens of lawsuits around the country challenging pretrial incarceration practices, including the use of money bail. The Obama Department of Justice’s Civil Rights Division even filed a Statement of Interest in one of their cases, stating that it was unconstitutional to “Incarcerat[e] individuals solely because of their inability to pay for their release.” Last month in Houston, Texas, Civil Rights Corps’ lawsuit resulted in the release of more than 600 people accused of misdemeanors who were jailed solely because they couldn’t afford bail.

In October 2016, local law firms partnered with Civil Rights Corps to challenge Cook County’s massive pretrial detention scheme, which effectively uses unpayable money bonds as a way to skirt both the limitations on pretrial incarceration in the Illinois constitution and the due process requirements of the US Constitution. The lawsuit also alleges that incarcerating people solely because they cannot pay bail is unconstitutional because of its disproportionate impact on African Americans accused of crimes. The Coalition to End Money Bond rallied around the lawsuit as a way to force policy change and is currently organizing a public presence at court dates.

On July 10, 2017, two days before the court was to hear both sides’ arguments about whether this lawsuit should be dismissed, lawyers representing Cook County asked the judge to delay the hearing in anticipation of a new Circuit Court Order that would change the procedures for setting bail in Cook County. A week later, Chief Judge Timothy Evans unveiled General Order 18.8A, a new rule that should drastically reduce the population of Cook County Jail by preventing pretrial incarceration based only on inability to afford bond.

In essence, the order instructs judges making bail decisions to first determine whether someone is “bailable,” meaning eligible for pretrial release. Luckily, under the Illinois Constitution, almost everyone is entitled to release before their trial. Then, judges must set the conditions of release, including whether to impose electronic monitoring (in effect, a form of house arrest in Cook County), curfews, pretrial services reporting or other special requirements beyond showing up for court dates. If a judge wants to require payment of money before release, they must first hold a hearing in which the accused person’s ability to pay is explored on the record in open court. The judge is then required to make a finding that the person before them “has the present ability to pay” any monetary amount required for their release. Under a newly enacted state law, any conditions imposed must be the least restrictive possible to meet the court’s objectives.

The thrust of the court’s order is that Cook County can no longer use unpayable money bail as a tool to incarcerate people pretrial. Though Cook County is the largest municipal jurisdiction yet to announce such a rule change, it is not unprecedented in the US. Limiting money bail to amounts that people can pay has been the law in Washington, DC, for decades, and recently became the policy in Maryland, New Mexico and Arizona through court rule changes. Likewise, it is a key part of New Jersey’s complete overhaul of its bail system, which has resulted in a 36 percent decrease in jail population this year compared to 2015. In fact, between January 1 and May 31, 2017, judges in New Jersey imposed monetary bail only nine times.

Moreover, though Cook County’s specific process for determining that any money bails imposed must be affordable is new, the authority that it relies on has been the law in Illinois for decades. If followed, the new procedures will also increase protections for people accused of crimes by forcing judges to slow down and make more individualized decisions.

The Chief Judge’s order takes effect September 18, 2017, for people charged with felonies (more than 90 percent of people currently in Cook County Jail) and January 1, 2018, for people charged with misdemeanors. Under the new process, everyone who is currently in Cook County Jail because they cannot pay a money bail should have their bail decisions reevaluated. They should have three new options under General Order 18.8A: 1) Release without having to pay money at all; 2) Imposition of a new money bail set in a lower amount that they can pay and be released; and 3) Be given a full detention hearing with all the due process protections and immediate appeal rights that accompany an honest, transparent decision to incarcerate someone pretrial.

If implemented well and followed by judges, the rule could dramatically decrease the number of people incarcerated in Cook County Jail, eventually forcing release of a majority of prisoners. Currently, 62 percent of people in Cook County Jail pretrial are there only because they cannot post a money bail. Advocates, however, are concerned about enforcement and adherence by judges. In order to monitor the Order’s effect, the Coalition to End Money Bond is undertaking a community court-watching initiative that will gather data through volunteers and release reports as bond court outcomes change.

Even if money bond is completely eliminated for those who cannot afford it, it will not end pretrial incarceration: More than 30 percent of people incarcerated pretrial in Cook County Jail right now are being held without bail. Going forward, vigilant oversight will be needed to ensure people who were previously incarcerated via money bail are not simply held without bail instead. Money bail became a target of Chicago Community Bond Fund and other activists because it is the primary cause of pretrial incarceration; for reform to eliminate money bail and keep the same astronomical rates of incarceration would be disastrous.

A final concern relates to the conditions that will be imposed on people released pretrial. As fewer people are incarcerated while awaiting trial, there is a possibility that more pretrial supervision measures will be implemented, including onerous conditions of surveillance and control, such as house arrest, electronic monitoring, drug testing and pretrial curfews. We anticipate an increase in the use of these harmful conditions, which may lead to increased jail admissions based on alleged “violations.” As public defenders in New York have pointed out, the use of mandatory programming and other conditions of pretrial release can mimic or even exceed the sentences that people would receive after trial, such as probation, and may constitute unconstitutional deprivations of liberty.

While the fanfare over bail reform in Cook County is still fresh, the Coalition to End Money Bond is gearing up to train dozens of community court-watchers this week in preparation for monitoring implementation of General Order 18.8A and other new policies. The litigation team is reworking their briefs to argue that their case should continue — after all, the next Chief Judge could revoke and replace General Order 18.8A with a different procedure regarding bail hearings. Securing lasting change and impacting the 101 other counties in Illinois still requires either state legislation or an Illinois Supreme Court Rule limiting the use of monetary bail and pretrial incarceration.

The fight against money bail continues here and across the country. As new jurisdictions reject monetary bond in favor of more compassionate (and constitutional) treatment of people accused of crimes, reformers and policymakers alike are looking for successful models. For example, in New Jersey, successful bail reform required amendment of the state constitution and two years of planning for implementation. If Cook County can provide a model for a swift and effective reform through court rule changes, it will be a model for large urban jurisdictions around the country that want to act more quickly than their state legislatures.

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