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| Matt Alsdorf |
The Pretrial Fairness Act, which went into effect on Sept. 18, addresses a range of pretrial policies and practices, from the first point of contact with law enforcement through case resolution.
Most attention has focused on the PFA's elimination of money as a condition of pretrial release. This was also the central basis of a legal challenge that ended in July, with the Illinois Supreme Court's decision in Rowe v. Raoul declaring the law constitutional.
Tucked into the court's decision was an overlooked — but critical — holding about the meaning of bail that serves as a welcome corrective for a pretrial system that, nationally, has strayed far from its roots in American history and constitutional law.
The majority opinion explained that the Illinois Constitution's bail clause "does not include the term 'monetary,' so it did not cement the practice of monetary bail."[1]
Further, the court explained, "monetary bail was all but unknown at the time the 1818 Constitution was drafted," and a "dictionary published that year defined bail as 'the freeing or setting at liberty one arrested or imprisoned under security taken for his appearance' but did not mention money as the sole or even primary means of providing that security."[2]
In other words, bail is the process of releasing someone before trial, with money being one possible condition of release. Simply put, the court is clear that neither "bail" nor "sufficient sureties" refer only to money.
Yet across the country, "bail" is used interchangeably with terms like "money bond," a usage that reflects the assumption — and often the reality — that paying money is the primary, if not only, way for people to get out of jail before trial.
But just as bail was never meant to be used this way, financial release conditions were never meant to determine who stayed in jail and who was released.
As the conflation of money and bail has solidified, Americans have paid an enormous price: Our money-based system does not protect public safety, it damages community well-being, and it exacerbates racial and economic inequities.
Thankfully, that is beginning to change — in Illinois and across the nation — as those responsible for pretrial decisions revisit the meaning of bail and thereby reconnect with foundational American legal principles.
How Bail Became So Misunderstood
The American pretrial system was largely modeled on English legal traditions, which had developed bail as a way to ensure that everyone was released before trial except those designated as being eligible for detention without bail, typically because of the severity of their alleged crime.
Many state constitutions and statutes include a broad right to bail similar to that of Illinois, which reads, "All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great."[3]
Even where a person's alleged offense would allow for pretrial detention, detention is not automatic but rather an affirmative decision by the judge.
This sets forth a clear structure for release and detention. People accused of very serious offenses can be detained, and everyone else is "bailable by sufficient sureties."
As the National Institute of Corrections has written, "the notion that bailability should lead to release was foundational in early American law."[4]
At this time, sureties were typically people responsible for the accused person's appearance in court. In the mid-to-late 1800s, financial conditions of release slowly began to replace personal sureties. However, typically no money was required unless or until someone missed court.
Over time, that changed, particularly after 1898, when the first for-profit bail bondsmen appeared, charging money or collateral before someone could be released.
As this practice became widespread, "bail" began to refer to the process of requiring money payment — typically to a commercial bondsman — to get out of jail.
This usage, which implicitly accepts that people who cannot pay will be detained, turns its head on the U.S. Supreme Court's description of bail in its 1951 Stack v. Boyle decision as the "traditional right to freedom before conviction."[5]
To this day, the U.S. and the Philippines are the only countries with pretrial release systems dominated by commercial bail bond companies.
America's Legal Traditions
The right to physical liberty is central to any concept of freedom, and it is forcefully protected by the U.S. Constitution, including in the Fifth and 14th Amendments and in equivalent state provisions. The Fifth Amendment guarantees that "[n]o person shall be … deprived of life, liberty, or property without due process of law."[6]
Due process narrowly circumscribes the state's power to detain someone without proving they have violated the law.
As then-Chief Justice William Rehnquist wrote in 1987 in U.S. v. Salerno, "In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."[7]
The requirement that release be the norm and pretrial detention be carefully limited is also consistent with America's presumption of innocence.
The U.S. Supreme Court held in Stack that "freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction," and that "[u]nless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning."[8]
Not only should pretrial release be guaranteed to the vast majority of people entering the system, but it should also be available equally. The fundamental principle of equality under the law requires that we consider whether our bail system systematically disadvantages people based on race or indigency.
How Money Undermines Justice
Decades of erroneously defining bail as money has all but erased Justice Rehnquist's directive that pretrial detention be careful and limited. Bail has gone from being the process of pretrial release to being the process of determining, through money, whether someone will be released.
Today, judicial officers rarely make direct, intentional decisions to detain someone because it is necessary to protect community safety or prevent intentional flight from prosecution.
Instead, our system typically asks judicial officers to set financial release conditions for virtually everyone. Those who can pay get out, and those who cannot remain in jail.
The illogic of this system is perfectly captured by the fact that money bonds — the mechanism used to detain so many people — are often imposed through something called a release order.
A system in which a person could be detained for virtually any charge, regardless of what state law says about bailability, simply because they lack the funds to pay their way out of jail, is not one that reflects due process, the presumption of innocence or equal protection under the law.
Today, more than two-thirds of people in jail are there pending resolution of their case, and almost all of the jail population growth since 1999 has been driven by pretrial detention.[9]
This burden is not borne equally, with people of color, especially Black and Hispanic people, subject to higher financial conditions and greater detention rates. The disproportionate negative impact of financial release conditions on people of color and people experiencing poverty is well documented.[10]
Whether a person is detained before trial has a major impact on whether they are found guilty, whether they are sentenced to incarceration, and how long those sentences are.[11] Detention also leads to housing instability, loss of employment and disruptions to one's family.
Perhaps as a result, unnecessary detention increases the likelihood of rearrest.[12] And even when people do secure release by posting a money bond, there is no evidence that they are more likely to return to court or remain arrest-free.[13]
Further, the money-bond system disproportionately extracts wealth from historically vulnerable populations: Black families and other families of color foot much of the bill for the bail bond industry's $2.4 billion in annual profits.[14]
By replacing intentional judicial decision making with the haphazard outcomes generated by money, our system has become ineffective at detaining those who should be detained, releasing those entitled to physical liberty before trial, ensuring court appearance, and protecting community safety and well-being.[15]
In short, financial conditions of release impose massive costs on the system and communities without producing meaningful benefits.
A Better Path Forward
Illinois' Pretrial Fairness Act sets an example of how pretrial release, aka bail, can be done well and in accordance with our founding legal principles.
It follows a trail first cleared by New Jersey; New Mexico; Washington, D.C.; and the federal system. These jurisdictions use legal frameworks that clearly define who is eligible for detention, and they require substantive hearings for judicial officers to decide whether detention is necessary to protect community safety or prevent flight. Money need not play any part.
A 2019 report published by the MDRC Center for Criminal Justice Research noted how upside-down New Jersey's pretrial system had become by 2012: Nearly 40% of the jail population was held for an inability to post bond, with 12% held on $2,500 or less, meaning they were unable to come up with the $250, or 10%, typically required.[16] Meanwhile, people who posed greater risks to public safety were released when they could afford to pay.
New Jersey virtually eliminated the use of money as a condition of release when it enacted the Criminal Justice Reform Act in 2017. It also set forth a process for prosecutors to request a hearing where a judge could decide whether to detain those charged with the most serious crimes.
In the years following implementation of the reforms, the New Jersey courts reported that the pretrial jail population decreased by over 40%, without a meaningful change in court appearance or rearrest rates. It also found that the people held in jail were charged with more serious offenses, and that only 1% of people released pretrial were rearrested for a very serious offense.[17]
Reconnecting With American Law
Reconnecting our laws, policies and practices to our foundational legal principles may require changes to state constitutions and statutes, and it will not happen overnight. But there are plenty of advancements jurisdictions can make right now to make their systems more fair, effective and equitable.
Train practitioners on the law and research.
Jurisdictions should invest in education, including new staff orientation and continuing legal education, when people join agencies with pretrial responsibilities.
Core information should include the legal principles of pretrial release and detention decisions — for example, that state law typically provides judicial officers with wide discretion to reduce the use of money bond, limiting its use to cases where they determine there is a risk the person will commit a very serious offense, or even to eliminate money as a condition of release altogether.
The curriculum should include research on the pretrial practices that are — and those that are not — effective at increasing court appearance and encouraging law-abiding behavior on pretrial release.
State law enforcement training academies also play an important role. Law enforcement is the most public pretrial agency, able to speak to local media, while judicial codes of conduct limit what courts can say.
Training can help law enforcement see themselves as aligned, rather than at odds, with legal and evidence-based pretrial practices.
Invest in data collection and analysis.
States need to invest in data systems so local jurisdictions can adequately collect and aggregate data to understand how their systems operate, including where race and gender disparities occur.
With better data, system decision makers and community members can make better-informed decisions and work to improve outcomes for people facing charges, survivors of crime, and families and communities.
Provide supportive pretrial services.
Many jurisdictions are now offering supportive pretrial services that uphold legal principles, and they are looking to research the most effective practices to support people's pretrial success.
These services may be offered by court systems, pretrial services agencies and community-based providers, and can include court date reminders, child care, transportation support, and referrals for food, housing, health and mental health care, substance-use treatment, and other services.
Focus on equity.
The current pretrial system creates outsize harms for Black communities and other communities of color. Addressing disparities in pretrial decision making, from arrest through case disposition, must be central to any discussion of change.
And it is critical that voices from the community — including victims, families and people with lived experience in the system — be represented in the governmental bodies considering pretrial improvements.
Change Is Coming
The pretrial system is under increasing scrutiny nationwide. There is growing recognition that relying on financial release conditions is not an effective way to enhance community safety and, instead, harms the people and communities it is meant to serve.
Those responsible for making pretrial decisions must reconnect with American legal principles and an understanding of bail not as money, but as the process of release before trial. The integrity of our system of justice is at stake.
Matt Alsdorf is an associate director and co-director of advancing pretrial policy and research at the Center for Effective Public Policy.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Rowe v. Raoul
, 2023 IL 129248, ¶28. https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/79db4d0e-4bed-4cd2-bec1-88fc1ba8b904/Rowe%20v.%20Raoul,%202023%20IL%20129248.pdf.[2] Id. at ¶32.
[3] Ill. Const. 1970, art. I, §9.
[4] Schnacke, T. (2014, September). Fundamentals of bail: A resource guide for pretrial practitioners and a framework for American pretrial reform. National Institute of Corrections. https://s3.amazonaws.com/static.nicic.gov/Library/028360.pdf.
[5] Stack v. Boyle
, 342 U.S. 1, 4 (1951).[6] U.S. Const. amend. 5.
[7] U.S. v. Salerno
, 481 U.S. 739, 751 (1987).[8] Stack v. Boyle
, 342 U.S. 1, 4 (1951).[9] Sawyer, W., & Wagner, P. (2020) Mass incarceration: The whole pie 2020. Prison Policy Institute. https://www.prisonpolicy.org/reports/pie2023.html
[10] See, e.g., Demuth, S. (2003). Racial and ethnic differences in pretrial release decisions and outcomes: A comparison of Hispanic, Black, and white felony arrestees. Journal of Criminology, 41(3), 873–908. https://doi.org/10.1111/j.1745-9125.2003.tb01007.x; Schlesinger, T. (2005). Racial and ethnic disparity in pretrial criminal processing. Justice Quarterly, 22(2), 170–192. https://www.researchgate.net/publication/248967295_Racial_and_Ethnic_Disparity_in_Pretrial_Criminal_Processing; Sawyer, W. (2019). How race impacts who is detained pretrial. Prison Policy Institute. https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race/.
[11] Leslie, E., & Pope, N. G. (2017). The unintended impact of pretrial detention on case outcomes: Evidence from New York City arraignments. Journal of Law and Economics, 60(3), 529–557. http://econweb.umd.edu/~pope/pretrial_paper.pdf; Lowenkamp, C. T., VanNostrand, M., & Holsinger, A. (2013). Investigating the impact of pretrial detention on sentencing outcomes. Laura and John Arnold Foundation. https://craftmediabucket.s3.amazonaws.com/uploads/PDFs/LJAF_Report_state-sentencing_FNL.pdf; Philips, M. T. (2012). A decade of bail research in New York City. New York City Criminal Justice Agency. https://www.nyapsa.org/assets/files/DecadeBailResearch12.pdf.
[12] Dobbie, W., Goldin, J., & Yang, C. S. (2018). The effects of pretrial detention on conviction, future crime, and employment: Evidence from randomly assigned judges. American Economic Review, 108(2), 201–240. https://pubs.aeaweb.org/doi/pdf/10.1257/aer.20161503; Heaton, P., Mayson, S., & Stevenson, M. (2017). The downstream consequences of misdemeanor pretrial detention. Stanford Law Review, 69, 711–794. https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=2148&context=fac_artchop.
[13] O'Donnell v. Harris County
, 251 F. Supp. 3d 1052, 1120 (S.D. Tex. 2017).[14] Preston, A. & Eisenberg, R., (2022, July) Profit over people: The commercial bail industry fueling America's cash bail systems. https://www.americanprogress.org/wp-content/uploads/sites/2/2022/07/The-Commercial-Bail-Industry-Fueling-Americas-Cash-Bail-Systems.pdf.
[15] Brooker, C. M. B., Jones, M. R., & Schnacke, T. R. (2014). The Jefferson County bail project: Impact study found better cost effectiveness for unsecured recognizance bonds over cash and surety bonds. Pretrial Justice Institute. ; Stevenson, M. T. (2017). Distortion of justice: How the inability to pay bail affects case outcomes. Journal of Law, Economics, and Organization, 34(4), 511–542. https://doi.org/10.1093/jleo/ewy019.
[16] Anderson, C., Redcross, C., Valentine, E., & Miratrix, L. (2019 November). Evaluation of pretrial justice system reforms that use the Public Safety Assessment: Effects of New Jersey's criminal justice reform. https://www.mdrc.org/sites/default/files/PSA_New_Jersey_Report_%231.pdf.
[17] New Jersey Courts. (2021). Annual Report to the Governor and the Legislature. https://www.njcourts.gov/sites/default/files/courts/criminal/criminal-justice-reform/cjr2021.pdf.