The use of cash bonds in Illinois’ pretrial release procedures has been a part of our system for years. However, the effectiveness of cash bonds has recently been questioned. Studies show that many low-risk offenders are detained in jail because they cannot pay the ordered bail. This detention can have many negative effects on detainees such as greater risk of destabilization in one’s life, increased likelihood of recidivism and likelihood of unfair treatment within the justice system. Retaining low-risk offenders can also result in overcrowding in the jails and increased expenditures for the State. Improvements and modifications are needed to reduce the negative impact. One suggestion is replacing cash bonds as an option for pretrial release and creating a system that only allows for non-cash bond release or detention of serious offenders.
Illinois has taken the initiative in investigating this theory. The Supreme Court of Illinois created a task force of prominent leaders in Illinois.1 In June 2014, the team visited Washington, D.C. in order to observe its pretrial release program.2 The purpose of the visit was to gather information that would benefit and expand Illinois current pretrial release procedures.3 As Michael Tardy, Administrative Office of the Illinois Courts, stated, “Our pretrial system needs to ensure that high-risk defendants are detained; that moderate risk defendants are released pending trial with accountable community supervision to mitigate their risk of failing to appear in court or engaging in new criminal conduct; and that low-risk defendants are released from custody pending trial as soon as practical.”4
This Article will describe the current pretrial release procedures in Illinois compared to Washington, D.C.’s pretrial release procedures which are known to be beneficial within the District’s criminal justice system. Furthermore, this Article will explain the reasons for implementing non-cash bond procedures in Illinois similar to that of Washington, D.C. These reasons involve decreasing the likelihood of recidivism, jail overcrowding and State expenditures while also creating a fair justice system.
Pretrial Release Procedures in Illinois In Illinois, all arrestees must qualify for bond unless there is proof or a strong probability that the defendant is guilty of certain offenses listed under statute.5 If the arrestee qualifies for bail, the arrestee can place a deposit bond.6 A deposit bond requires the arrestee to pay the clerk of the court 10% of the ordered bail amount to be released from jail.7 The arrestee can also secure bond by placing cash, stocks, bonds, real estate and other similar collateral up for bail.8 The court must consider many factors when determining if bail should be set including history of violence, threat to others, history of abuse, and any reports or documents accompanied with the complaint.9 The court must also consider the offenses charged, threat of violence, gang related activity, arrestee’s employment, financial resources and other similar factors when deciding the amount of bail.10 An arrestee may also be released on his or her own recognizance.11 The arrestee will be released on his or her own recognizance if there is a likelihood the arrestee will appear in court and the arrestee does not pose a risk to the community.12 The arrestee must comply with any release conditions ordered by the court.13
The Illinois Code of Criminal Procedure provides for the release of an arrestee on his or her own recognizance.14
The Illinois Pretrial Services Act provides that a pretrial services agency shall be established in each circuit court.15 The pretrial services agencies are responsible for interviewing and gathering information on the arrestee for bond court appearances.16 Such information includes criminal history, employment, residence, social background and community ties.17 These reports provide recommendations to the court on the appropriate conditions for pretrial release.18 The agencies are also involved in the supervision of arrestees released from jail to make sure the arrestee complies with court ordered conditions.19
Pretrial Release Procedures in Washington, D.C. Washington, D.C. has a statutory requirement that an arrestee either be released on personal recognize, released on conditions, temporarily detained or detained.20 A cash bond is not an available option for arrestees.21
Before arraignment, Washington, D.C.’s Pretrial Service Agency (“PSA”) does a risk assessment on the arrestee. 22 The risk assessment involves conducting a background investigation and interview with the arrestee in order to make pretrial recommendations to the court.23
The arrestee’s interview involves gathering information on “the defendant’s community ties, criminal history, physical and mental health status, substance abuse, and current arrangements with probation or parole agencies.”24 The process takes place within 24 hours of the person’s arrest. “The current risk assessment instrument has 38 factors, among them different types of convictions, [flight risk] histories, pending criminal justice supervision status, citizenship status, substance abuse, and mental health conditions.”25 The assessment calculations determine the public safety risk and appearance risk of the arrestee. The scores state whether the defendant is a low, medium or high risk. PSA makes a recommendation for the court based on the “risk score and defendant’s eligibility for statutory detention.”26 Cash bond is not an option considered for recommendation.27
Further, PSA supervises arrestees that are released based on their risk and needs.28 Case managers make sure that the arrestee is in compliance with release conditions and places the arrestee in necessary treatment or rehabilitation programs.29 In 2012, 80% of arrestees were released on non-monetary bond, 89% of arrestees appeared in all court proceedings, 88% of arrestees had no rearrests and 99% of the arrestees had no rearrests for violent charges.30 None of the arrestees were placed on cash bonds.31
Incorporating Washington, D.C.’s Non-Cash Bond Procedures in Illinois Non-cash bond procedures ensure that an arrestee’s right to freedom is not determined by financial ability. Many low-risk arrestees remain in jail after a bond hearing because they cannot afford to pay their bond.32 High-risk offenders who can afford to post bail place a safety risk in the community. Further, the existence of cash bonds have a major effect of minorities, “who are the least likely to be able to post money bonds.”33
This disparity does not equate to a fair administration of justice and devalues the presumption of innocence until proven guilty. Non-cash bond procedures create a balance where low-risk arrestees, regardless of financial ability, have an opportunity of freedom while ensuring that high-risk offenders do not place a danger to the community.
The implementation of noncash bond procedures correlates with lower recidivism rates. An arrestee detained in jail while awaiting trial is more likely to be convicted of the crime charged. Many studies have found that arrestees “detained in jail while awaiting trial plead guilty more often, are convicted more often, are sentenced to prison more often, and received harsher prison sentences than those who are released during the pretrial period.”34 Also, an arrestee detained while awaiting trial is also more likely to commit future crimes. Some researchers and legal professionals believe that there is a connection between the number of days an arrestee is in jail and the arrestee’s community ties, which include employement, finances, residence and family.35 Without community ties, “destabilization is believed to lead to an increase in risk for both failure to appear and new criminal activity.”36 “When held 2-3 days, low-risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours. When held 8-14 days, low-risk defendants are 51 percent more likely to commit another crime within two years after completion of their cases than equivalent defendants held no more than 24 hours.”37 Without cash bonds, low-risk offenders can be released without spending multiple days in jail due to failure to pay bond. Their likelihood of reoffending in relation to time spent in jail will decrease as a result.
Eliminating cash bond procedures will reduce State expenditures and jail overcrowding. For example, in 2011, 90% of arrestees in Cook County Jail were pretrial detainees. 38 Of the arrestees in Cook County Jail, 79% “were ordered to pay bail.”39 “[A]mong those released from the jail because they posted bail. . .the average time served increased from 9.8 days in 2007 to 12.9 days in 2011.”40 This also correlated to an increase in the number of detainees present each day in the County jail.41 It is presumed that it is taking longer for detainees to produce the money to pay bail and/or that higher bond amounts are placed on more detainees.42 Either way, the elimination of cash bonds and the use of risk assessment tools will decrease the number of detainees within the jail system since high number of detainees ordered to pay bail under today’s procedures will either be released or detained under non-cash bond procedures. Considering that many low-risk offenders remain in jail due to failure to pay bail, without cash bonds, these offenders are likely to be released rather than detained.
This results in a lower number of detainees within the jail. Also, it cost counties a substantial amount of money to house detainees every day. For example, in Cook County, a taxpayer pays about $143 a day for each detainee and about $190 a day for a mentally ill detainee in county jail.43 A lower number of offenders in the jails will decrease the amount of money counties pay to house detainees.
Conclusion The State of Illinois faces major obstacles as the number of detainees in the jails remains high and barely manageable. One possibility of improving the State’s jail system is by applying non-cash bond procedures in Illinois similar to those in Washington, D.C. Washington D.C.’s non-cash bond procedures have proven to be beneficial in reducing overcrowding in jails and recidivism rates. Illinois should consider adopting similar procedures to help reduce recidivism, overcrowding and State expenditures.
1 Press Release, Supreme Court of Illinois, Principals in Cook County Justice System to Tour Model Washington, D.C. Area Courts (June 19, 2014) (on file with author).
5 725 ILCS 5/110-4(a).
6 725 ILCS 5/110-7.
8 725 ILCS 5/110-8.
9 725 ILCS 5/110-5.1(b)(1)-(11).
10 725 ILCS 5/110-5(a).
11 725 ILCS 5/110-2.
14 725 ILCS 5/110-2.
15 725 ILCS 185/1.
16 725 ILCS 185/7.
19 725 ILCS 185/8(a).
20 D.C. Stat. § 23-1321 (2012).
21 See Id.
22 KiDeuk Kim & Megan Denver, A Case Study of the Practice of Pretrial Services and Risk Assessment in Three Cities, District of Columbia Crime Policy Institute 8, http://www.dccrimepolicy. org/images/Pretrial-Comparative-final-Report_1.pdf (last visited July 27, 2014).
27 Report to The Pretrial Release Subcommittee of The Task Force to Study the Laws and Polices Relating to Representation of Indigent Criminal Defendants by The Office of The Public Defender, Pretrial Justice Institute 11, http://www.pretrial.org/download/pji-reports/Report%20to%20the%20MD%20Pretrial%20Release%20Subcommittee%20-%20PJI%202013.pdf (last visited July 27, 2014).
28 KiDeuk Kim & Megan Denver, A Case Study of the Practice of Pretrial Services and Risk Assessment in Three Cities, District of Columbia Crime Policy Institute 8, http://www.dccrimepolicy.org/images/Pretrial-Comparative-final-Report_1.pdf (last visited July 27, 2014).
30 KiDeuk Kim & Megan Denver, A Case Study of the Practice of Pretrial Services and Risk Assessment in Three Cities, District of Columbia Crime Policy Institute 8, http://www.dccrimepolicy.org/images/Pretrial-Comparative-final-Report_1.pdf (lasted visited July 27, 2014).
32 William F. Dressel & Barry Mahoney, Pretrial Justice in Criminal Cases: Judges’ Perspective on Key Issues and Opportunities for Improvement, National Judicial College 12, http://www.pretrial.org/download/featured/Pretrial%20Justice%20in%20Criminal%20Cases-20Judges%20Perspectives%20on%20Key%20Issues%20and%20Opportunities%20for%20Improvement%20-%202013.pdf (last visited July 27, 2014).
33 Rational and Transparent Bail Decision Making: Moving From a Cash-Based to a Risk-Based Process, Pretrial Justice Institute 2, http://www.pretrial.org/download/featured/Rational%20and%20Transparent%20Bail%20Decision%20Making.pdf (last visited July 27, 2014).
35 Christopher T. Lowenkamp et al., The Hidden Cost of Pretrial Detention, Arnold Foundation 3, http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF_Report_hidden-costs_FNL.pdf (last visited July 27, 2014).
38 David E. Olson & Sema Taheri, Population Dynamics and the Characteristics of Inmate in the Cook County Jail, Loy. U. Chi. L.J. Crim. Just. & Criminology 6, http://ecommons.luc.edu/cgi/viewcontent.cgi?article=1000&context=criminaljustice_facpubs (last visited July 27, 2014).
41 Olson & Taheri, supra note 36, at 8.
43 Steve Schmadeke, Cook County Jail’s Inmate Population Rising, Chi. Trib., Sept. 13, 2013, http://articles.chicagotribune.com/2013-09-13/news/ct-met-cook-jailovercrowding-20130913_1_cook-county-jail-jail-populationcermak-health-services
Beverly Jones is a third year student at Northern Illinois University College of Law anticipated to graduate in May 2015. She is the Notes and Comments Editor for Northern Illinois University Law Review. She graduated from Bradley University in May 2011.