Illinois Is Eliminating Cash Bail. To Hysterical Conservatives, It’s the End of the World.

By
Akil Vicks

Cash bail creates a two-tier justice system where freedom belongs to those who can afford it. For poor people, Illinois’s new bail reform bill is a step toward justice. For melodramatic conservatives drowning in propaganda, it’s right out of a horror film.

Illinois will end cash bail beginning January 1. (Sophie Elbaz /Sygma via Getty Images)

In February of 2021, Illinois governor J. B. Pritzker signed the SAFE-T Act into law. The act was actually a package of reforms aimed at curbing police abuses and protecting the rights of citizens. The most contentious of the reforms passed in the bill was the Pretrial Fairness Act, which would abolish cash bail in the state beginning January 1, 2023.

Reactionaries did what they do best and reacted. Conservatives in Illinois and across the country have taken to comparing a bill meant to eliminate economic disparities in pretrial detention to the hit movie franchise The Purge.

The cinematic universe of The Purge encompasses five films and a television show, with a sixth film in development. The unifying premise is that, in a dystopian future, the powers that be have instituted an annual “Purge Night” where all crime is legal and people are encouraged to unleash their worst impulses on the world. The original 2013 film, starring Ethan Hawke, was a tense and claustrophobic horror thriller. The subsequent films widened the franchise’s scope, becoming explicitly concerned with how the rich and powerful view the poor and marginalized as disposable playthings.

This latter aspect of The Purge makes it especially ironic that conservatives are referencing it to attack legislation meant to address racial and economic inequalities in the justice system. If any base impulses are being unleashed, it can be found in lawmakers’ and pundits’ willingness to outright lie about what the law does in order to fearmonger voters into preserving a two-tiered justice system.

Fear and Loathing in Illinois

State Representative Jim Durkin published an op-ed in the Chicago Tribune claiming that the SAFE-T Act would give “drug cartels free rein in Illinois.” Orland Park mayor Keith Pekau claimed in a town meeting that the bill would prevent police from removing trespassers from private property or businesses. Before the SAFE-T Act was signed into law, Chicago mayor Lori Lightfoot blamed pretrial release for an uptick in gun violence, saying, “We can’t keep our community safe if people just keep cycling through the system.”

What these two Republicans and one Democrat have in common, along with numerous law enforcement spokespeople and many others denouncing the bill, is that none of what they are saying is true. In the case of Mayor Lightfoot, emails leaked in May of 2021 showed that her own staff couldn’t find evidence to corroborate the claim that pretrial release led to a surge in gun violence. Nevertheless, the narrative pushing the dangers of bail reform persisted.

The attacks against the SAFE-T Act have proliferated on social media, where comparisons to The Purge became popular. But this blowback against criminal justice reform is not as organic as it may seem. Governor Pritzker accused local right-wing radio host Dan Proft of spreading racist propaganda riddled with falsehoods to help Republican gubernatorial candidate Darren Bailey in the upcoming election.

Proft did not deny sending anti–bail reform mailers to targeted (read: white, middle-class) areas of the state with the aim of propagating fear and anger and undermining Pritzker politically. Instead, he alleged that Pritzker had “signed the state’s death warrant with his no cash bail law,” and challenged him to name “one specific item in the newspaper [mailer] you excoriate that is untrue or inaccurate.” Of course, this challenge doesn’t present much difficulty to anyone who has actually read the bill.

Gone Too Far or Not Far Enough?

Critics of the Pretrial Fairness Act, as the bail reform portion of the SAFE-T bill is known, describe a situation where violent offenders will be arrested and immediately released if their alleged crime is one of those listed in the purported newspaper clipping circulating among Illinois voters. Likewise, a group of state attorneys penned another Chicago Tribune op-ed warning reform-minded lawmakers that they have gone too far in their efforts to abolish cash bail:

Those who originally voted for this bill are now realizing that they may have gone too far when they see more and more citizens from across the state becoming victims of violent crimes, allegedly committed by defendants released without bail pending felony prosecution.

According to these allegations, suspects accused of committing felonies like second-degree murder will be undetainable by law enforcement while they are awaiting trial. In reality, the bill does not remove the possibility of pretrial detainment for certain offenses, but actually removes cash bail as a factor for release for bail-eligible offenses. Judges will review offenders on a case-by-case basis, and can remand people to pretrial detention if they are deemed a flight risk or an immediate threat to others.

It’s important to note that bail reform has already happened in Illinois. In 2017, Cook County, which encompasses the greater Chicago area, instituted reforms that limited reliance on cash bail for release and gave judges more discretion in the matter. A study by Loyola University Chicago responded to claims that this reform led to increased crime and noted that the changes in policy had a minimal effect on who was actually released pretrial. Only about five hundred additional defendants, most accused of nonviolent offenses, were released due to reforms to the bail system. Additionally, the study found no significant difference in the chances of a person released pretrial committing additional offenses before and after the reforms were instituted.

The charge that the SAFE-T Act would prevent officers from removing people who are trespassing is equally disingenuous. The bill requires that officers give people citations for trespassing offenses rather than arresting them. This does not mean that an officer can’t arrest someone for failing to comply with a lawful order to vacate premises where they are not allowed to be.

Reactionaries harping about the threat to citizens posed by bail reform and the SAFE-T Act in general are lying about what the law means for people living in the state. By fear-mongering with specious claims of state-sanctioned lawlessness, they are distracting from a long-overdue conversation about why abolishing cash bail is a necessary and just reform.

The Truth Shall Set You Free

The simple fact is that cash bail creates a two-tier justice system. When an offense is bail-eligible, the only difference between who remains in jail and who is released pretrial is who can afford bond. There really isn’t any way to frame this as an equitable legal practice. This economic inequality for pretrial detention becomes even more objectionable when you consider that black defendants are more likely to be unable to afford bail than their white counterparts, contributing to the racial disparities within the justice system.

Pretrial detention has been shown to increase negative outcomes for those in jail awaiting trial. Contrary to the line taken by opponents of reform, people held before trial are more likely to commit additional offenses upon release because of the disruptive nature of incarceration on employment and the negative influences of other prisoners. Pretrial detention also encourages innocent people to plead guilty to crimes they did not commit. Court backlogs mean that people can be made to wait months or even years for a trial, giving prosecution a position of leverage over defendants to accept plea deals, no matter the strength of the case. This means that people who are held pretrial are more likely to be convicted than those who receive pretrial release. Additionally, those who are released are more likely to receive favorable deals when pleading guilty.

The infamous and tragic story of Kalief Browder is particularly illustrative of this issue. Browder, who was sixteen at the time of his arrest, spent three years detained at Rikers Island for allegedly stealing a backpack. His family could not afford the $3,000 bond for his release. The case against Browder was eventually dropped, but in those three years, an incalculable amount of damage was done. Two years after his release, Kalief Browder took his own life.

What seems to have escaped the consideration of bail reform’s critics is that the people being held in pretrial detention have not been convicted of a crime. It appears that, in the conservative estimation, the presumption of innocence only applies to the wealthy. The backlash to the legislation has been swift and strong, artificially propped up by Republican operatives looking to the tried-and-true rhetoric of Democrats being soft on crime to buoy themselves in the upcoming midterm elections. The Illinois bill has already been watered down to remove limits on officer qualified immunity and other checks on police conduct, but state officials have held strong on abolishing bail.

The 2017 bail reform measure in Cook County saved defendants and their families some $31.4 million in pretrial costs. That is a significant sum for poor and marginalized people who, again, have not been convicted of a crime. Abolishing cash bail isn’t a complete solution to the racial and economic disparities in the justice system. Leaving pretrial release to the discretion of judges still carries the risk that bias will create disparate outcomes. However, in their zeal to resist any sort of reform to the bail system, conservatives have demonstrated their true belief in what the criminal justice system is meant to do: to remove poor people from society.