Cash bail disproportionately impacts communities of color. Illinois is the first state to abolish it

CHICAGO (AP) — It took four and a half months for Shannon Ross’ life to unravel.

Ross, who describes himself as Indigenous and a person of color, was arrested in Chicago in October 2019 on weapons charges and ultimately found not guilty. But that came only after he spent months in jail awaiting trial, lost his home, car, job and countless moments with his children.

Ross couldn’t afford the $75,000 bond set during a hearing that he recalls lasted only a few minutes.

“I had to lose everything to prove that I wasn’t guilty,” he told The Associated Press. “It messes with you mentally, psychologically. It messes up relationships; it messes up the time you put in to build your life up.”

But Illinois is about to overhaul the system that upended Ross’ life. Illinois’ Pretrial Fairness Act, which abolishes cash bail as a condition of pretrial release, will take effect Sept. 18, making Illinois the first state to end cash bail and a testing ground for whether — and how — it works on a large scale.

Judges can still keep people accused of serious crimes behind bars pretrial, but first would have to go through a more rigorous review of each case.

Critics say cash bail policies are especially unfair to Black people and other people of color. A 2022 federal civil rights report on cash bail systems found that courts tend to impose higher pretrial detention penalties on Black and Latino people, citing a study that showed Black men received bail amounts 35% higher than white men, and Latino men received bail amounts 19% higher than white men.

Cook County Public Defender Sharone Mitchell Jr. described Illinois’ previous cash bail system as “a cousin to slavery.”

“The vast majority of people in the system are poor, and they’re Black and brown, and they have no power. It is an incredibly unfair system,” he said. “You go to a bond hearing, it sounds like a slave auction. People are talking very fast. They’re putting price tags on people’s freedom.”

Between 1970 and 2015, there was a fivefold increase in the number of people jailed before trials, according to the 2022 U.S. Commission on Civil Rights report. Data shows more than 60% of defendants were detained prior to trial because they couldn’t afford to post bail, and that nearly 74% of the 631,000 people jailed daily in the United States are awaiting trial.

Typically in state courts, a judge decides if a defendant poses too much of a threat to the community to be released, or if they can be freed with conditions, according to the nonprofit Bail Project.

Some states have tried to ease cash bail rules.

In 2017, New Jersey essentially replaced its cash bail system with a risk assessment process that gauged the potential danger a released defendant could pose to the community. But cash bail is still allowed in some instances in that state and others that have curtailed the practice, such as New York and Alaska.

California has made several efforts to reform its cash bail system, but lawmakers balked at sweeping reform.

Proponents of cash bail argue that it ensures released defendants show up for court proceedings, and say that without it, violent criminals who are released pending trial could have the opportunity to commit more crimes. But New Jersey data showed that after the state moved away from cash bail, the number of defendants who were charged with a new crime or who failed to appear in court remained steady.

Illinois state Senate minority leader John Curran, a Republican representing suburbs southwest of Chicago, said he’s not opposed to changing the system but wants judges to retain more power than Illinois’ new law grants.

“I’ve always said that New Jersey has done this mostly right,” Curran said. “All felonies are put before a judge and a judge can consider if a person is a danger to the community or a willful flight risk or whether there is a history of intimidating witnesses, and they can detain on those standards and it gives judges full discretion.”

The loudest opposition to the change in Illinois has come from law enforcement. Jim Kaitschuk, executive director of the Illinois Sheriffs’ Association, said members’ focus is now on trying to “work through it the best we can.”

“I think we’ll be searching for a lot of people” because defendants who don’t post bond have no incentive to return to court, Kaitschuk said.

Although setting people free before trial will become the default in Illinois, there will still be cases that warrant detention, including for those accused of violent or sexual offenses or facing charges involving a gun, according to the public defender Mitchell.

In such cases, the judge must weigh several factors in deciding whether to keep someone jailed, including evidence, previous convictions, and whether that person is a flight risk.

“It won’t make the system perfect for everybody. But what it will do, we think, is puts us in a better position to make a more thoughtful decision,” Mitchell said.

Race certainly seemed to play a role when Nikuya Brooks’ bond was set at $150,000 after her first-time arrest on drug charges in 2017, according to the Chicago mother of three. No one in her family could pull together 10% of the bond for her to walk free. Brooks, who is Black, said a white woman she was jailed with had prior convictions and the same charges as Brooks, but received a lower bond.

According to Brooks, she didn’t know her ex was transporting ecstasy while she was in the car. Police stopped the vehicle and arrested both. She said she spent a year in DuPage County Jail before her trial, unable even to hug her children.

“I really wanted to fight my case because I’m not a criminal,” she said. “I’m not a drug dealer. I’m a mom. You know, I bake cookies for the PTA. I ran a Girl Scout troop.”

Brooks said other women in jail told her if she pleaded guilty, prison visits offered more freedom and that she might be able to hug or kiss her children. She told her public defender she wanted to make a deal, and ended up serving about two more years in prison.

Years later, she still struggles to find employment because of her criminal record.

“You’re already being punished because you’re being detained,” she said. “But you’re also being punished twice because you’re poor.”

Ross, who was cleared of the weapons charges that put him in jail, said he also struggles to find secure housing and income four years later. He lost his job as a forklift operator while jailed. Once he made bail with the help of the Chicago Community Bond Fund, Ross started a business online during pretrial house arrest. But he said his credit score tanked after he couldn’t make payments from jail.

“I feel like it was a Catch-22,” Ross said. “And the worst part about it is I knew I was not guilty.”

Reflecting on their experiences, Brooks and Ross said being locked up pretrial harmed their chances in court. “You’re automatically stigmatized if you’re incarcerated and you’re fighting your case, especially Black women,” Brooks said. They hope the new law will change that for others in Illinois.

“It’s more equal for everyone,” said Ross. “I feel like it’s more justice in the criminal justice system.”

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Savage is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.