Illinois poised to become first state to end wealth-based pre-trial detention
When Lavette Mayes was waiting for her trial, the judge at her bond hearing told her that she could go home to wait for her court date – if she paid 10% of her $250,000 bond as a deposit to the court – or remain in jail.
Mayes, a mother from Chicago’s South Side, couldn’t afford $25,000, so she was incarcerated for 571 days while legally innocent. While in jail, she lost her housing, her job and business, and thousands of dollars in fees and payments to the jail. She also almost lost custody of her two children. “It was like a domino effect, it wasn’t just me – it was everyone who was dependent on me,” Mayes told the Guardian.
“I never did think that I couldn’t win my case,” she continued. “But my kids were hurting, they were crying every time I went to court. I couldn’t do that to them.” Her experience trapped in the bond system led Mayes to take a plea deal, forgoing her right to a fair trial in Illinois.
In courtrooms across the US, pretrial release payments, called bond or bail, create dual systems of justice – one for the wealthy who can pay their way out of pre-trial incarceration and another for those who can’t afford it. Studies have also shown that hundreds of thousands of Americans like Mayes end up pleading guilty or receiving harsher sentences because of unaffordable bonds, whether or not they are guilty.
Wealth-based detention is at its core, a racial justice issue. Across the country, Black, Latino and indigenous people are detained pre-trial at far higher rates than people of other ethnicities. If given a money bail, Black people receive significantly higher bail than all other ethnic and racial groups and are less likely to be able to post the bail amount. Bail is usually set by judges in less than a minute and people with almost identical charges are often assigned bails that differ by tens of thousands of dollars.
Now, with a historic vote in the Illinois general assembly on 13 January, Illinois is poised to become the first state in the country to end the use of wealth-based pre-trial detention. The change has been a long time in the making – so long that one of the first organizers working to change the Illinois bail system six years ago got elected to the state senate and became a co-sponsor of the Pre-trial Fairness Act.
“We passed the act in the Senate at 4.45 in the morning – we had doubt, up until 4 in the morning [that it would pass],” said the Illinois state senator Robert Peters. “When you go at a system that is racist, classist and sexist, it’s very difficult to be bipartisan right now.”
Numerous studies have shown that bail does little to achieve its intended purpose of ensuring court attendance – people released on their own recognizance were just as likely to come back to court for their trials as people who posted money bond and no more likely to reoffend awaiting trial.
In the last five years, organizers like Mayes and Peters with the Coalition to End Money Bond have attacked wealth-based incarceration from every possible angle, including a judge’s order in Cook county – home to Chicago – mandating that bonds be made affordable, and statewide legislation mandating review of unaffordable bonds.
Other states have faced setbacks in their attempts to get money out of detention decisions: New Jersey has drastically limited the use of cash bail while not eradicating it completely and California’s attempt to end the practice through a statewide referendum came up short last year.
“We were able to pull most of the best things from other policy changes and other states but also set the bar really, really high. This is the most progressive pre-trial reform in the country,” said Sharlyn Grace, a member of the Coalition with the Chicago Community Bond Fund. “And it’s important to remember that unaffordable money bond that results in pre-trial jailing is blatantly unconstitutional and courts will be challenging it in the coming years.”
Grace said that years of building coalition support and getting community input was crucial in not only helping the bill pass with thousands of supporters who flooded the legislature with letters of support and witness slips, but also in ensuring ending money bond doesn’t lead to more people being held without bail pre-trial or decisions about release being made by an opaque pre-trial risk algorithm.
Sharone Mitchell, another member of the Coalition with the Illinois Justice Project said, “we want to end cash bond, but we also want to reduce pre-trial incarceration, and the latter is really more important than the former.”
The Pre-trial Fairness Act significantly limits the types of charges eligible for pre-trial detention at the first court date, among other provisions. No one arrested for a misdemeanor, with the exception of domestic violence, can be jailed pre-trial and many other charges which are unlikely to result in conviction are also ineligible for pretrial detention.
“Pre-trial incarceration should be the exception rather than the rule,” explained Mitchell.
Other crucial aspects of the Illinois bill Mitchell and Grace hope other states will adopt include requirements for robust pretrial data collection and provisions that a missed court date will not mean immediate pre-trial incarceration.
The bill still needs to be signed by the governor, JB Pritzker, who has long expressed his support. After that, the bill will be implemented over the course of two years.
“After 2020, where everyone had Black Lives Matter yard signs up and they talked about how much they care about Black lives, I really commend people who backed up their yard sign with actual action and policy,” Peters said.