Why Hold On to Cash Bail?

Some Insights from Illinois Practitioner Interviews

On January 1, 2023, Illinois was scheduled to become the first state in the nation to eliminate the imposition of cash bail as a condition of pretrial release in criminal cases. The change—one part of a comprehensive overhaul of pretrial practice known as the Pretrial Fairness Act (PFA), not only abolishing cash bail but prohibiting pretrial detention for most defendants and restricting nonmonetary release conditions as well—has been temporarily stayed by the Illinois Supreme Court, while challenges to the new law’s constitutionality are resolved.

So money bail will continue in Illinois a little while longer. What explains its staying power? Analysis of interviews with Illinois justice practitioners, conducted as part of our long-term evaluation of the PFA and its impact, may offer some clues.

We’ve spent the last year studying pre-implementation arrest, jail and court data, observing bond hearings, and interviewing judges, prosecutors, sheriffs, public defenders and other practitioners across the state—all to help us understand the context in which PFA changes will be implemented. We’ve already reported some of our preliminary quantitative findings, sharing what the data tell us about Illinois pretrial practice before the PFA. For instance, we’ve found that cash bail resulted in much less pretrial detention than most people assume. While it’s true that many people were admitted to jail under the old system, few remained there more than a few days.

Our interviews with practitioners have further complicated the picture of pre-PFA bond practices. One broad theme that has consistently emerged concerns differing views of the purposes of imposing cash bail as a condition of release. We asked all interviewees to describe 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. While we did not ask direct questions on the purposes of bail— or for that matter on the purposes of pretrial detention itself—the practitioners we interviewed consistently raised these matters themselves, both in accounting for their customary pretrial release practices and in discussing the challenges and dangers of changing them.

There is no controversy about the technical-legal purpose of cash bail, which is to help ensure that defendants, if released, will return to answer the charges against them. In our ongoing analysis of interview responses, however, we have identified several additional purposes that are routinely asserted or assumed by practitioners when discussing money bail:

• A practical substitute for preventive detention. While pre-PFA law afforded prosecutors a way to seek preventive detention without the possibility of release on bail, they rarely used it. The State’s Attorneys we interviewed invariably told us that, in cases where they considered defendants too dangerous to release, or too likely to abscond or evade prosecution, their offices simply requested very high bail rather than a formal request for preventive detention or “no bail”. In fact, the data on bond court outcomes bear this out: a “no bail” holding is rare in Illinois, and many counties never seem to resort to it. One prosecutor suggested that this preference was related to the consequences of a “no bail” decision on the speedy trial clock. But in any case, as he put it, "You know, $3 million, or $5 million, they're never going to be able to post it. So it has the effect of no bail."

• A useful mechanism to collect fees, fines, and restitution. In addition to its other uses, cash bail posted at the beginning of a criminal case often served as a secure fund out of which the defendant’s financial obligations could be satisfied at the end. This had nothing to do with the ten percent of posted bonds counties were authorized to retain to help finance court operations. Rather, when a defendant pled or was found guilty under previous law, the court could and frequently did order that any posted bond amount be used to pay court fees, fines, victim restitution, and in appropriate cases, private attorney fees, without any additional collection steps. According to research performed for the Illinois Supreme Court Pretrial Implementation Task Force , about four of every five dollars posted each year (more than $110 million out of an average annual total of $141 million) went to court-imposed fines and fees alone. This held true even when the money was originally provided by a family member or other innocent party solely to secure a loved one’s release, and with the expectation that it would be returned. Many Illinois practitioners we spoke with were sympathetic to these families and supportive of the PFA in part because it relieved them of this financial burden. Nonetheless, they were well-aware of the benefits of the cash bail “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."

• A vital part of the system of accountability. Although bail is not a fine, and pretrial detention is not a punishment from a legal standpoint, interviewees 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,"" as more than one interviewee put it, was clearly troubling to many. One sheriff complained that "Illinois is heading in [an] anti-accountability direction,” and specifically cited the PFA’s ending the practice of using cash bail as a source of local system financing. “Some people believe that it is unfair to make criminals pay for part of the system,” he said. “Well, I think it's a whole lot more unfair for taxpayers who never break the law to have to pay for the system."

These attitudes and beliefs regarding cash bail help explain some of the opposition to the PFA. They also complicate the law’s implementation and will perhaps affect its future impact. Along with the even more complex range of practitioner attitudes and assumptions about the purposes of pretrial detention itself, they form an important part of the story our evaluation will seek to tell.

This research is supported by Award No. 15PNIJ-21-GG-02807-RESS awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this publication are those of the authors and do not necessarily reflect those of the Department of Justice.