“Bail Reform” Worked in Cook County; Now, Pass the Pretrial Fairness Act and End Money Bond for Everyone in Illinois
A new report from nationally renowned criminal justice experts at Loyola University Chicago, Don Stemen and David Olson, shows that Cook County’s efforts to reduce the use of money bail and release more people pretrial did not cause any rise in crime.
The report, “Dollars and Sense in Cook County: Examining the Impact of General Order 18.8A on Felony Bond Court Decisions, Pretrial Release, and Crime,” evaluated the impact of Cook County’s General Order 18.8A (GO 18.8A), specifically in regard to bond court decisions, pretrial release, pretrial outcomes, and crime rates. General Order 18.8A mandates that judges make any monetary bonds required for release affordable to the individual, creating procedural precautions to help ensure that individuals are not held pretrial solely because they cannot afford bail.
The researchers studied two groups of defendants in order to measure the impact: a “pre-GO 18.8A” cohort and a “post-GO 18.8A cohort,” both which consisted of people given an initial felony bond court hearing between November 1, 2017, and April 30, 2018.
Olson and Stemen studied and compared the rates of different types of bonds imposed in the pre-order and post-order periods. In Cook County, bond court judges can either hold people on “no bond,” which fully denies people pretrial freedom, or impose one of four different types of bonds: individual recognizance bonds (“I-Bonds”) allow for a person to be released without posting a monetary bail; deposit bonds (“D-Bonds”), which require that people pay 10% of the imposed bond amount to be released; and cash bonds (“C-Bonds”), of which defendants pay the full amount to be released. On top of these payment requirements, at the discretion of the judges, electronic monitoring (EM) may also be imposed as a condition of release, which comes with additional fees that individuals must pay before being placed in the program.
The researchers found that the percentage of people receiving I-Bonds increased from between 20-40% to between 50-60% after GO 18.8A; on the other hand, there was a slight increase in the number of no bond holds and a drastic drop in the use of EM and D/C-Bonds. Due to the increase in I-Bonds and a decrease in D/C-Bonds, the unnecessary financial burden placed on many families was alleviated, and ultimately, saved Cook County communities a collective total of $31.4 million. Through this, there was a slight increase in pretrial release, in which about 500 more defendants were released pretrial after the implementation of the General Order.
The authors note that though there was not a huge increase in the number of pretrial releases, there was a change in how people were released – referring to the type of bonds given by judges. This difference is important and warrants further study. Similarly, Olson and Stemen did not study how long pretrial defendants spent in jail after their arrests; they defined people as being “released” if the individual spent any amount of time out of jail during the pendency of their case or in the year after their arrest, whichever was sooner. People held for 11.5 months and people held for 11.5 hours would both be considered “released” under these models.
Even if total release rates stayed relatively similar before and after GO 18.8A, the increase in recognizance bonds certainly decreased the total amount of time people spent in jail by pretrial, considering I-Bonds require no money be posted and should thus result in immediate release. The D-Bonds favored before the GO 18.8A – even if they were eventually paid – sometimes required people to wait weeks or months in jail before leaving.
Still, even short stays in jail result in dire consequences. In 2016, researchers interviewed hundreds of people released pretrial in the Kansas City suburbs and found major differences between individuals detained for just 3 days compared to those who were detained for shorter periods. People detained for longer than 3 days were 2.5 times less likely to be employed, and reported at a 40% higher rate that their arrest led to unstable housing situations. People held for over three days also reported negative effects on their dependent children 59% more often than did people who were incarcerated for fewer than three days. More research is needed to appropriately measure the socioemotional and economic impact General Order 18.8A created by ensuring more people were released immediately, rather than having to wait to post bond.
Opponents of GO 18.8A often argue that it resulted in a rise of defendants failing to appear (FTA) for court and committing crimes while on pretrial release, but evidence concludes the opposite.
Olson and Steman analyzed two categories, “new criminal activity” and “new violent criminal activity,” and found that prior to GO 18.8A, 17.5% of people were rearrested while on pretrial release – including for minor allegations like traffic violations – and after GO 18.8A was in place, 17.1% of people were rearrested while awaiting trial. The rate of rearrest for people awaiting trial for violent crime allegations has always been low and stayed that way after GO 18.8A was implemented. Of people released pretrial before the general order, 97% were not rearrested for violent crime allegations; after the order, 96.9% of people were not re-arrested for “violent crimes” – another statistically insignificant change.
This is clear, definitive evidence that the increase in pretrial release created by General Order 18.8A was not connected to a rise in “violent crimes” committed by people awaiting trial. Indeed, the authors found that there was no statistically significant change in crime rates in Chicago at all in the year after the order was implemented.
There was a slight increase in individuals’ failures to appear after the implementation of GO 18.8A – from 16.7% to 19.8% – though the authors do not hypothesize why this occurred. Failure to appear is, thankfully, a relatively easy-to-remedy problem. The overwhelming majority of people who miss court are not willfully fleeing prosecution; instead, they either simply forget about their court date or they are prevented from attending because of work obligations, child care obligations, or a lack of transportation. Simple text message reminder systems – which the Cook County courts are already beginning to utilize – can vastly improve court appearance rates, since many people miss court inadvertently. Courts can also provide more flexibility for litigants with family and work obligations around on court dates and hearings where their presence is not actually needed.
Arguably, the most important point made by the authors of “Dollars and Sense in Cook County: Examining the Impact of General Order 18.8A on Felony Bond Court Decisions, Pretrial Release, and Crime” is that GO 18.8A changed how people are released pretrial. The increase in I-Bonds and the decrease in D/C-Bonds has alleviated some financial suffering for people awaiting trial and their families, while also allowing them to be at home. The changes that came from GO 18.8A saved communities most severely impacted by systemic racism and mass incarceration $3.14 million.
GO 18.8A has proven a safe, cost-effective, and successful first step toward eliminating wealth-based punishment mechanisms in Cook County. Now, it is time to expand these benefits to all people in Illinois by passing the Pretrial Fairness Act (SB 4025). The Pretrial Fairness Act would fully eliminate money bond throughout the state and decrease the number of people held in custody pretrial.
The Pretrial Fairness Act has seven essential elements:
- End Money Bond: The Act will put an end to the use of money bond by prohibiting the courts from requiring the payment of money in exchange for release from jail for people who are merely accused, not convicted, of crimes.
- Create a Clear Process for Bond Hearings: The Act will create a new process for judges to make bond decisions on the basis of individuals’ potential safety or flight risks without having anything to do with money, and while still protecting their rights to pretrial liberty.
- Simplify Factors for Determining Release and Detention Decisions: The Pretrial Fairness Act establishes six factors to determine the conditions of release, which fully encompass any community safety considerations and ensure individuals return to court. These factors include the nature and circumstances of the offense charged; weight of the evidence against the accused; history and characteristics of individuals; risk of danger to another person; risk of obstruction of justice/flight; and the optional use of a risk assessment tool.
- Give Law Enforcement Release Authority: The Act also gives police the authority to release an arrested person without requiring them to appear before a judge, except for in exceptional circumstances.
- Options for Warrant Alternatives: The Act provides alternatives to the immediate arrests of people whom miss court dates or supposedly violate conditions of release. As previously stated, most people who miss court do so on accident or because of prior obligations. By not forcefully or immediately arresting people, we are allowing them to voluntarily return to court without threat of punishment – which, in turn, will likely also reduce FTA rates.
- Reform Sentences for Pretrial Release Violations: Currently, violating a condition of pretrial release or electronic monitoring in Illinois is a Class 3 felony (punishable by 3 to 7 years in prison). The Pretrial Fairness Act would reduce this penalty to a Class A misdemeanor (punishable by up to 365 days in jail).
- Plan for State Data Collection: The Act requires state leaders to develop a plan for statewide collection and accessible, transparent publication of data on the outcomes of bond hearings and the bond status of people in jails across Illinois.
The Pretrial Fairness Act will help stop the extraction of millions of dollars from communities across the state, and can function as an important starting point for re-envisioning “justice” and investing in communities.
Tell your legislators to end wealth-based punishment and pass the Pretrial Fairness Act today, at ActionNetwork.org/Letters/Raise-Your-Voice-for-Pretrial-Freedom-in-Illinois!