It would be a titanic undertaking to completely change a practice that has become an integral part of our country's deeply flawed criminal justice system, disproportionately affecting poor black and brown communities.
But every step counts in eradicating the injustice that keeps the wheel of justice from turning evenly. The Illinois Supreme Court moved the needle in the right direction Tuesday in its 5-2 ruling that waived bail — a move this editorial board has endorsed in the past — making our state the first in the nation prepared to do so.
When the law goes into effect in September, it is hoped it will level the playing field without compromising public safety.
But in essence, it's unfair to people charged with low-level, non-violent crimes to bide their time in jail while they await trial solely because they don't have the cash that more privileged suspects can pull out in minutes.
As the Center for American Progress report of last year summed it up, because of “excessive bail, hundreds of thousands of people are jailed every year not for obvious public safety problems, but for lack of money.”
Despite what some far-right politicians and activists have tried to convey in their disinformation campaigns, the Pretrial Justice Act was not meant to let thousands of violent men and women roam the streets like zombies in an apocalyptic disaster movie.
When condemned Tuesday's decision as “a sad reflection of the state of ideological arrest in three branches of our government,” McHenry County State Attorney Patrick Kenneally said his office will “ensure that dangerous perpetrators remain behind bars before trial.”
That is exactly what the law requires. Judges can—and should—continue to hold dangerous suspects who pose a risk to society behind bars. And now, suspects of money-based violence can no longer escape prison.
The two Republicans on the state Supreme Court were the only dissenters in the decision concluding that removing bail did not violate the Illinois Constitution.
It is inconceivable that the five judges who decided on the pretrial lawsuit passed their decision without much thought or consideration of the potential impact on crime victims and society.
But as the ruling stated, “Our constitution strikes a balance between the individual rights of the defendants and the individual rights of the victims of crimes. The provisions of the pretrial release of the Act regulate procedures that are commensurate with that balance.”
Make it work
The abolition of cash bail does not mean all criminal suspects will be released from custody pending trial.
For the most part, Illinois residents who have been arrested for misdemeanors will be released until their cases are resolved under the new law, which is part of the state's SAFE-T Act.
But others facing more serious charges, including murder and sexual assault, will face a detention hearing where judges will determine whether they pose a danger to the public or are considered a risk of escape. So many accused will remain in jail.
And regardless of the offence, even a low-level one, judges can still impose pretrial conditions, including electronic monitoring and house arrest, on those who are not being held in prison.
Other states have tried different models of bail reform. Research has shown that crime does not increase significantly in places where cash collateral is virtually eliminated.
Such statistics are encouraging, although as Harvard University researchers point out, few jurisdictions have evaluated their reforms rigorously. Therefore, it is very important for Illinois to do so because the Pretrial Justice Act is in force.
Not all critics worry about the repercussions of waived unreasonable bail. Concerns about public safety are legitimate, and tracking the effectiveness of the new law is important. If the Law needs to be changed in any way, legislators need a solid information base to make changes.
There will be ardent naysayers ready to pounce if the suspect is acquitted and then charged with another crime—but that can happen even under the bail system. Data and evaluation can help prevent overreactions that regard new laws as dangerous failures before there is a knowledge base to work with.
Illinois is now on the path to significant criminal justice reform. Now it's time to make it work.
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