Three perspectives on money bail in Illinois
In January 2021, Illinois enacted a comprehensive overhaul of pretrial practice known as the Pretrial Fairness Act (PFA). The new law, when it takes effect, will make Illinois the first state in the nation to eliminate the imposition of monetary bail as a condition of pretrial release in criminal cases. As part of a comprehensive, long-term evaluation of the PFA’s implementation and impact, the Center for Criminal Justice at Loyola University Chicago has been analyzing administrative data, conducting court observations, and interviewing stakeholders—including both criminal justice practitioners and criminal defendants—across a representative range of Illinois counties, in an effort to understand the current use of monetary bail and to estimate the likely impact of reforms.
What is emerging from our research is a complex picture of the working reality of the cash bail system in Illinois, which departs significantly from both the system as it is laid out in formal law and the one imagined in popular discourse. Our practitioner interviews suggest that bail is imposed for a broader range of purposes than is usually articulated, at least in public. Our analyses of available data show that bail’s practical results are different from those that are widely assumed. And our conversations with defendants—people who know the pretrial system from inside—have surfaced beliefs and perceptions about bail that are both disturbing and important.
A tool with many uses
There is no controversy about the technical-legal purpose of monetary bail – to help ensure that defendants, if released, will return to court. But candid interviews with prosecutors, judges, defense attorneys, judges, and other system actors suggested that the cash bail system has been adapted over time to serve many other goals as well. As we’ve reported more fully elsewhere, we identified three additional purposes that are routinely asserted or assumed by practitioners when discussing money bail:
Although bail is not a fine, and pretrial detention is not a punishment, at least from a legal standpoint, practitioners tended to discuss both in the language of sanctioning, deterrence, and accountability. The idea that the PFA would enable people arrested for crimes to “walk away free” was clearly troubling to many. Bail is a “consequence of offending,” as one put it. If you stop imposing bail, another said, “You’re not holding them accountable other than, hey, look, you know, show up to court on June the 10th.”
While pre-PFA law permits preventive detention without the possibility of release on bail, it requires elevated proof of dangerousness or flight risk, and is almost never used. Instead, prosecutors told us, prohibitively high bail amounts accomplish the same purpose, and with much less effort. “You know,” as one confided, “$3 million, $4 million, they’re never gonna be able to post it.”
Following a guilty plea or conviction, the court can and frequently does order that bond amounts posted at the beginning of the case be used to satisfy court fees, fines, victim restitution, and in appropriate cases, private attorney fees, without any additional collection steps. Practitioners we interviewed tended to be well-aware of the benefits of this “deposit system,” and some explicitly defended it as a means of collecting from otherwise judgment-proof defendants. “If you don’t force them to pay,” one said, “they’re not going to pay.”
“Your money’s just gone.”
Our interviews with people who have directly experienced the pretrial system as criminal defendants further complicated the picture of cash bail in Illinois. Although their stories may or may not be typical, they were often supported by system stakeholders, and corroborated by our analyses of available data. And they raised some important issues that go to the fairness and legitimacy of the cash bail system.
The money bail system doesn’t just impose hardship on those accused of crimes, but on their families and friends as well. If bail is conceived as a sort of informal sanction, then, it falls on innocent and guilty alike. Interview participants often expressed shame about having to ask family members for help, and about taking much-needed resources away from people they loved. One person, for example, described having to rely on his siblings, aunts and uncles to pay his bond: “They had to put up loans against their house, take out loans on their cars, it was very strenuous on my family." Another said that posting bond “took food out of my kid's mouth, because I don't have money like that.” A third had to borrow most of his bond from his mother and brother. “They basically had to scrape it up, they didn't have it right away,” he told us. “So I had to sit for a while and they had to scrape that shit up and figure out how to get it and all that so it was very stressful, it was stressful.”
As we noted above, practitioners often mentioned that posted bail could be seized to satisfy other financial obligations—and acknowledged that the fact is not widely known or routinely disclosed to those posting bail. (One referred to it as “the fine print.”) For the defendants we interviewed, the surprise and bitterness caused by the unexpected loss of posted bail funds was evident. “I always heard like, you know, you're gonna get this back,” one person told us. “And that's like what we were expecting.…and [then] your money's just gone." Another said, “That was my sister's money....But it was very disappointing, you know, because they could have told me this from the beginning.” He felt “set up” by the system, he told us. Another said, “I felt finessed. I felt like I would have just stayed in [jail] and I would have never paid them [if I’d known].”
It should not be surprising that experiences like these would be linked to negative perceptions of system legitimacy. When asked how the pretrial process affected his views of the legal system, one person responded, “Well, it makes me feel like they're crooked and they're only out for money…It all seems like a big money scheme, jail.” Whatever its basis in fact, this belief—that cash bail is simply legalized extortion, and that the carceral system itself exists to generate profit—seems to be quite common. As another person put it, “I mean, it's nothing but money, on top of money, on top of money, they give you these crazy bond amounts, so that you sit in jail, and financially support the jails.”
Cash bail by the numbers
The picture of cash bail that emerges from those who know the system first-hand is important for its own sake. But we also checked these perceptions against a year’s worth of court data from twelve Illinois counties, to get more insight into the way cash bail really works. And here again, what we found differed in important ways from widely held assumptions.
In most counties, most people must pay for release.
In most of the counties we examined, monetary bail was imposed as a condition of release for the majority of defendants.
Bail was more likely when serious crimes were charged, but in most places it was generally imposed even in less serious cases. For example, when we looked only at the types of cases that the PFA defines as “non-detainable”—those involving most misdemeanors and low-level felonies, for which jail holding will not even be an option under the new law—nine of the twelve counties still imposed bail as a condition of release in a majority of cases.
The burden of bail payments can be substantial.
Individuals receiving monetary bail are generally required to pay 10% of the face value of the bond before they can be released from jail. While bail was usually imposed in most of the counties we examined, the average amounts defendants were required to pay varied widely from place to place. For cases involving less serious offenses that will be non-detainable under the PFA, defendants were required to pay average amounts that varied from $383 in one county all the way up to $6,400 in another. Average bail amounts in cases involving detainable offenses tended to be higher, but they also varied substantially. In cases involving charges that will be eligible for detention upon a showing that there is a risk of willful flight, average bail amounts ranged from $1,309 to over $9,600. In cases involving domestic violence or violations of protective orders, they ranged from an average of $842 to over $3,200. In all other cases involving offenses that will be detainable upon a showing of risk to public safety, average bail amounts ranged from $1,406 to about $14,000. Collectively, we found that the total financial burden represented by bail impositions across all twelve counties came to nearly $98.5 million in a single year.
Most of it never comes back. Although cash bail is supposed to serve as security for hearing attendance, Illinois bail disbursement data show that from 2016 through 2020, only about one dollar in five posted as bail was ever refunded to defendants, regardless of their attendance. The rest of the bail collected was used to satisfy court-imposed fines, fees, and other obligations following a conviction or guilty plea.
When and if the PFA takes effect and “abolishes cash bail,” it will not be substituting one legal abstraction for another, but setting aside a complex, historical, living system and erecting a new and untried one in its place. To understand this as fully as we can, our evaluation must draw on various kinds and sources of information. Through interviews with people on the receiving end of the current bail system as well as those responsible for its operation, attention to motivating beliefs and assumptions as well as observable routines, and deep-dive analyses of data from particular counties, large and small, as well as the state as a whole, we hope to provide a fuller and more realistic sense of the process of change.
The findings reported here come out of three parts of our ongoing mixed-methods evaluation of the PFA:
Since 2021, in an effort to understand the context in which PFA changes will be implemented, we have been conducting confidential, structured interviews with judges, prosecutors, sheriffs, public defenders and other criminal justice system representatives in six urban and fifteen rural Illinois counties. (Interviews are ongoing; to date, we have interviewed a total of 23 practitioners.) In general, we’ve asked all interviewees to describe current pre-trial release practices in their jurisdictions, and to predict how those practices might change following the implementation of the PFA. Their answers often included information about the practical ways in which they used the cash bail system to accomplish a variety of goals.
In addition, starting in the summer of 2022, we interviewed 19 individuals who had recently been released pretrial, either on personal recognizance or following payment of bond, in four counties: Cook, McLean, Lake, and Winnebago. We recruited study participants through various third-party social service non-profit organizations, handing flyers outside of the criminal courthouse and probation offices and word of mouth. Open-ended interview questions were asked to understand individuals’ ability to pay cash bail, avenues used to raise bail money, interactions with family and friends around cash bail, and how the bond court and supervision experience affected other aspects of the interviewees’ lives, such as family, community ties and employment.
Finally, we examined data provided by the Clerks of the Circuit Court in twelve Illinois counties on all criminal cases filed in 2021, identifying the offenses charged, whether cash bail was initially imposed as a condition of release, and the amount of any bail imposed. For each case, we initially determined whether any of the charges would be eligible for pretrial detention, under either the PFA’s “public safety” or “willful flight” standards. Within the PFA there are specific crimes enumerated that, if charged, make an individual eligible to be petitioned by the county State’s Attorney for a detention hearing; if a hearing is granted and the judge finds that detention is appropriate, the defendant may be held in detention pretrial. We identified roughly 400 specific statute references for offenses detainable upon a showing of risk to public safety, and grouped them into three broad categories: 1) forcible and non-probationable felonies and sex offenses that did not consist of domestic violence or violations of protective orders, 2) weapon offenses (primarily illegal firearm possession crimes), and 3) domestic violence and violating an order of protection offenses. If a case involved any one of these charges, it was categorized as detainable under the public safety standard. If a case involved a charge classified as a Class 1, 2 or 3 felony, but did not include any charges detainable under the public safety standard, it was categorized as detainable under the willful flight standard. If a case did not involve any charges under either set of detainable charges, it was categorized as non-detainable. To determine the bond decision, we examined only the initial bond decision in the case. Many cases have subsequent bond court hearings at which the bond may change; we did not examine those changes as we were interested in the initial decision to detain or not detain an individual.