Illinois is poised to eliminate the use of cash bail in the state’s carceral system following the passage of the Pretrial Fairness Act by the state legislature on January 13. Illinois Governor J.B. Pritzker, who has said he favors ending cash bail, is expected to sign the bill into law.
The policy of conditional pretrial detention — holding accused people in jail until their trial, unless they can afford to pay bail — is currently practiced in all 50 states, although New Jersey did drastically reduce the use of cash bail. It’s a practice that necessarily penalizes poor people and disproportionately affects Black and Brown people, already overrepresented in U.S. jails and prisons.
The Pretrial Fairness Act was included in a criminal justice reform bill put forward by the Illinois Legislative Black Caucus. It is the culmination of a longstanding organizing drive by the Coalition to End Money Bond, the Illinois Network for Pretrial Justice, and other community organizations. According to a statement from the Coalition to End Money Bond, “Among other things, this bill will overhaul the state’s pretrial justice system and end the use of money bond in its entirety. It also makes many people ineligible for pretrial incarceration.”
This legislation is poised to have a huge impact: According to the Coalition for Money Bond, each year, more than a quarter of a million people are incarcerated in Illinois county jails — and 9 out of 10 are incarcerated while they’re still awaiting trial (that is, locked up before they’ve been convicted of anything). If the bill is signed into law, it will be the first in the country to entirely end the use of money bond. In These Times spoke with Malik Alim, campaign coordinator of the Coalition to End Money Bond, about the likely passage of the Illinois law and its implications for the broader movement to end the use of cash bail.
In These Times: The Pretrial Fairness Act will, among other things, eliminate cash bail for accused people awaiting trial. Can you tell me about the significance of that development?
Malik Alim: Pending Governor Pritzker’s signature, we will become the first state to completely end the use of cash bond, which means that no one would be held in jail because they can’t afford to pay a certain amount of money. That means that the standard for detaining someone is going to be higher. But that also means that judges will have more discretion in determining if a person will be held or not, much more discretion than just what amount of money they post to get out.
In These Times: What are the consequences of having a system where cash bail is used?
Malik Alim: Cash bail systems create a coercive process for the pretrial system. When people are held in jail because they can’t afford to pay the money bond, they’re more likely to take a plea deal and say that they did something that they may not have done so that they can get back home to their children and go back to work. So if you dangle someone’s freedom over their head based on what they will cop to, obviously you’re going to have a lot more cases plea out.
And what we saw from the Illinois State’s Attorneys Association was exactly that: The State’s Attorneys Association wants to protect their conviction rate, because in popular culture, the role of a prosecutor is to enforce the law and order. And so they want to have a high conviction rate and a high clearance rate. And plea deals are a big way that they accomplish that. So when we take away that coercion, people are able to make more clear-headed decisions about how they want to proceed in their case.
In These Times: There have been a lot of examples where this kind of organizing has been in place, and then the protests this summer became sort of a catalyst for reform. Did that happen here?
Malik Alim: Absolutely. And I give a lot of credit to the Legislative Black Caucus. I appeared with them in a press conference in September, where they unveiled their four-tiered approach to stemming systemic injustice. They stood strong. We were really proud to see that they stood behind the language in the bill, and that they trusted the advocates and the directly impacted community that developed this bill.
In These Times: Do you see this kind of reform passing and other states soon?
Malik Alim: I don’t think there’s another campaign in another state that is moving along like this one. But I will say, I think that this win says a lot about the larger political landscape, in terms of progressive politics and making sure that Joe Biden is held accountable to the left progressive movement. This kind of sweeping, comprehensive reform came at the first opportunity that Illinois could pass it since this summer. I think that this is a signal to the progressive left and to the moderate left that Biden’s kind of moderate agenda on most issues that the left cares about is not going to be sufficient.
In These Times: And how do we push Biden on this?
Malik Alim: We push him along from the grassroots. What we’ve heard from our seasoned legislative colleagues who have been in Springfield doing these types of negotiations for years is that they’ve never seen the type of energy, will, dedication and power in a campaign like they see in this. That needs to be replicated in other places, and the Coalition to End Money Bond has done an amazing job at capturing each step of the process that we’ve gone through — and our campaign is clearly replicable. We are open to anyone who wants to share best practices. Because it’s not optional — other states must follow suit, now.
In These Times: What tactics would you say have worked best in this now six-year long campaign?
Malik Alim: I would say the tactic of multiple tactics. The fact that we started by challenging the judiciary through a lawsuit that we filed that was challenging the constitutionality of the money bail system. In that realm, we opened up the possibility for the creation of the Supreme Court Commission on Pretrial Practices, which ultimately recommended major legislative changes. We also were organizing at the county level. We got General Order 18.8A, which limited cash bail, passed in Cook County in 2017 by pressuring the chief judge. So, the legislature, the judiciary and bully pulpit, so to speak — the voice of the people and the power of the people — are the three approaches that we took.
In These Times: If this bill passes, what direction will the coalition take?
Malik Alim: We’re focused on implementation now. A lot of smaller county governments around the state raise the issue of how they will operate without the money that they count on from cash bail, and from the fees and fines that get taken when someone doesn’t see their case through. Obviously, we should have better governance, and people shouldn’t be basing their budgets on the backs of poor Black and Brown people. But it is an issue that we have to deal with, because they have been doing it. We need to make sure that those counties are being consulted with and are being given direction on how to make that money up.
We’re also focusing on the issue of accountability for judges, because there are plenty of statutes and processes and procedures that are on the books right now that judges do not follow. So it’s on us to advocate as the directly impacted community, to make sure that these judges are actually following the new statute — that they make sure that a person is in fact a clear threat to a person or persons, and that they’re not creating a nebulous wider net, in direct conflict with the law that we just passed. So we’re looking at implementation, and we think that the two year phase-in period is necessary. We don’t want to cause more incarceration. And we want to make sure everyone is ready to implement this.
In These Times: What other takeaways should we be paying attention to with the passage of this bill?
Malik Alim: I think when folks start getting into the weeds and the nitty gritty of the language in our bill, our bill’s language is very progressive. It really does restore some semblance of the presumption of innocence and of the prosecution’s mandate to actually show that a person should be locked away in a cage. That should be a very high standard of evidence, and that’s what we are making it. And so when other states begin to draft their own legislation and look at what’s on their own statutes and things like that, we would strongly urge them to to look at the intentionality behind the language that we use, and to try to model it after ours, in order to make sure that we do not increase pretrial incarceration in other in other parts of the country. And with our language, that will not happen.
Alice Herman is a 2020-2021 Leonard C. Goodman Institute for Investigative Reporting Fellow with In These Times.