Will Eliminating Monetary Bail Deprive Crime Victims of Compensation?

As part of our evaluation of Illinois’ Pretrial Fairness Act (PFA), we have been interviewing criminal justice practitioners and stakeholders across the state —including judges, prosecutors, defenders, chiefs of probation, and sheriffs—regarding their local pretrial detention and release practices and the changes that the PFA may bring.

Previous reports have explored themes emerging from these interviews, including widespread concerns about the PFA and the possible consequences of limiting pretrial jail holding and abolishing monetary bail . These concerns, we found, were often explicitly linked to a set of assumptions and attitudes about the informal purposes and benefits of monetary bail and detention, as distinct from their technical-legal justifications.

For example, the legal justification for requiring monetary bail to secure a defendant’s release is to ensure hearing attendance. But we heard repeatedly from practitioners that, once monetary bail has been paid, it may also be disbursed to satisfy other financial obligations—like court fees, fines, and victim restitution ordered at the case’s conclusion. And while nothing in the PFA limits or restricts the imposition of fees, fines, or victim restitution on those convicted of crimes, many of those we interviewed contended that current practice amounted to an important practical benefit of the monetary bail “deposit system,” particularly for victims of crime. It is true that, according to bail disbursement data assembled by the Illinois Supreme Court Pretrial Implementation Task Force, most monetary bail collected in Illinois is never returned to defendants, whether or not they come to court as required. Much of it is disbursed to pay fees, assessments, and court-ordered fines instead. But how important is monetary bail as a source of restitution for victims of crime? Will the elimination of monetary bail have the unintended consequence of reducing compensation for victims, as some of those we interviewed feared?

Our analysis suggests that this concern may be unfounded. Data combined from 96 of Illinois’ 102 counties for the years 2016-2021 indicate that only 4% of all monetary bail disbursed went to compensate victims.

This should not be surprising, given that some of the most high-volume crimes for which monetary bail may be imposed—such as drug possession and driving under the influence—do not involve an identifiable victim or lead to restitution orders, regardless of the outcome of the case.

Of course, upon final conviction, a judge may order a defendant to pay restitution whether or not monetary bail was paid to secure release at the start of the case. Combining the bail disbursement data assembled by the Task Force with data from County Clerks of the Circuit Court on the amount of restitution collected and dispersed indicates that statewide during the years 2016-2021, most restitution paid to Illinois crime victims (71%) came from sources other than bail money.

The extent to which bail funds were used to compensate victims varied somewhat across the state. However, in most counties (75% of the counties included in the analyses), victims received no more than 6% of all the bail money disbursed. Only one county devoted more than 15% of bail money disbursed to victim restitution, which could be due to the unique nature of criminal cases in that jurisdiction or a different approach to ordering restitution. Unfortunately, data do not exist in Illinois that would easily allow for these explanations to be confirmed. There was a weak to moderate, inverse correlation between the share of bail disbursements going towards restitution and measures of the county size and case volume (e.g., population, criminal case filings and pretrial jail bookings): as population/case filings/jail bookings increased, the proportion of bail funds going towards restitution decreased slightly.

On the other hand, 29% of all the restitution paid to victims were paid with bail funds, and there were counties in which monetary bail “deposits” represented a significant source of eventual victim restitution. Again, the PFA does not limit the ability to impose or order restitution be paid. But it will eliminate the ability to take money posted for bail to satisfy these orders. In general, the percentage of overall restitution that came from bail money varied considerably from county to county. In most counties, less than 30% of all the restitution paid came from bail funds. In a few rural counties, most (i.e., more than 50%) victim restitution was paid out of monetary bail originally posted to secure release. But we could not find any pattern, such as county population size or the volume of criminal cases filed, that might account for this variation. Victim restitution was no more or less likely to come out of bail funds in smaller, more rural counties than in larger urban ones.

Whether or not the cash bail system in Illinois actually benefits victims of crime, it’s important to know that many justice practitioners think it does. Like the belief on the part of many criminal defendants that bail is part “extortion” and part “swindle,” these views have their own practical significance, and must be acknowledged as part of the context in which the PFA’s historic reforms will be implemented. Further, while nothing in the PFA limits or restricts the ability for the court to order restitution be paid for those convicted of a crime, the degree to which counties have relied on monetary bail funds to satisfy restitution varied considerably across the 102 counties in the state.