Elimination of Cash Bail Pushes Wealth Considerations Aside



By Kayla Molander
Harold J. Krent

As of September 18, 2023, there is no longer a cash bail system in place in the state of Illinois. 

Harold J. Krent, a professor of law at Chicago-Kent College of Law, explains that there is no question that the prior cash bail system disproportionately affected communities of color—both because of less affluence and over-policing.

That’s one of the main reasons the change was made, Krent says. 

“Illinois is the first state to prohibit cash from serving as a condition of pre-trial release,” Krent continued. “Wealth, or access to wealth, therefore, will no longer be the lynchpin in whether an arrestee remains in jail pending trial.”

According to the Illinois Pretrial Fairness Act, anyone is eligible for pretrial release, and prosecutors must prove that someone ought to be detained. Judges, though, will still have a variety of other tools at their disposal, such as imposing electronic monitoring or curfew, to minimize the potential for violence or flight.

“Prosecutors must bear the burden to persuade judges on a case-by-case basis that an arrestee poses a risk of flight or significant danger to the public if released,” Krent explains. “Many arrested for violent—and other specified—offenses no doubt pose a danger of violence if released, but many—and probably most—do not.”

This is a major change to the way criminal courts have operated for decades, and Krent anticipates some road bumps along the way as the new system is established.

“Prosecutors and judges may err on the side of predicting future violence or flight to protect
themselves from being second guessed if wrong,” Krent says. “But, with time, they should be able more accurately to gauge the likelihood of violence or flight, and the state should develop evidenced-based rubrics to help with that determination. The public should be patient.” 

“After all,” he continues, “those who have yet to stand trial are presumed innocent in the eyes of the law and therefore should only be incarcerated when critical to preserve public safety or avoid flight.”