Posted on January 22, 2021

Illinois Will End Cash Bail — and Limit Use of High-Tech Incarceration

Isaac Scher, The Intercept, January 17, 2021

SOME ORGANIZERS IN Illinois recall getting “laughed out of the room” for supporting the abolition of money bail five years ago. But on January 13, Robert Peters, a longtime advocate for ending cash bail and now a state senator from Chicago, saw his legislative proposal to end money bail pass the General Assembly, along with a comprehensive package of criminal justice reforms written by the state’s Black Caucus. Democratic Gov. J.B. Pritzker has strongly indicated that he will sign the bill, which will make Illinois the first state in the country to end a detention system that is demonstrably racist and classist.

Labor groups, abolitionists, and local nonprofits formed a coalition to end money bail shortly after powerful state players derided activists who argued against money bail in court and led organizing drives throughout the state. Their four-year campaign, which brought pressure against the state and gifted them a close alliance with the Black Caucus, made sweeping reforms thinkable. It was the movement for Black lives and the 2020 uprising that made them inevitable.

The reforms, which would go into effect in January 2023, will avoid the most dangerous pitfalls of quietly emerging “alternatives” to money bail: algorithms that predict peoples’ “risk” and detain those given higher scores, and surveillance devices that track people who maintain legal freedom before trial. These powerful tools are already used in a vast patchwork of jurisdictions across the country. Both are opaque and profitable and have gained prominence among bail reformers in places like California, where a failed effort to end money bail last autumn would have mandated prediction and increased surveillance.

In California and elsewhere, reformers have maintained that algorithmic prediction and “electronic monitoring” constitute safe, effective, and just substitutions for money bail. Advocates and experts say the tools are just as racist and classist as the money-bail system. Now, advocates see Illinois’ victory as reason for cautious optimism about the future of pretrial justice in the state and even nationwide. The bill reduces the reach of the criminal legal system, advocates said. They look beyond the money-bail ban, to the legislation’s unprecedented restrictions on an emerging and largely hidden system of prediction and surveillance.


MediaJustice researchers do know that monitoring is primarily leveled against poor, Black, and brown people. {snip}

Once the Illinois reform package takes effect, an oversight board will publish quarterly data on counties’ use of monitoring — a basic move toward democratizing information. Electronic monitoring will become a last resort for the courts too. State prosecutors will bear the burden of proving that an accused person should be monitored, both before the person has been surveilled and after 60 days of surveillance. And in a distinctly remarkable step, any time “served” on an electronic monitor will be subtracted from a court sentence. {snip}


AS WITH electronic monitoring, algorithmic prediction is gaining popularity in Illinois and around the country. Known as “risk assessment tools,” the predictive instruments crunch hundreds of thousands of data points on prior defendants to predict whether an accused person in front of the court might be rearrested or skip hearings. An algorithm produces a “risk” score and on that basis recommends that an accused person be released before trial — with or without an electronic monitor — or detained. The algorithms are profiling tools for the 21st century: They process arrest histories, convictions, and missed court dates. Some use data on guilty pleas; others account for whether accused people have owned cellphones.


Many players in the Illinois coalition against money bail wanted to see algorithms fully banned. That wasn’t possible. {snip}

{snip} The reform will have data about the algorithms published on a regular basis.

And it will not mandate the use of algorithms, a victory for would-be bail reformers everywhere. Months ago, reformers might have looked to California’s money-bail ban as a model bill. It would have mandated that the tools and kept data private.

In further contrast to California’s reform, the Illinois legislation requires algorithmic calculations to be sent to defense lawyers, who will be able to challenge the predictions. And in all pretrial hearings, the court will start from the presumption that accused people should be released (California’s bill presumed detention).

Every single person accused of a crime in Illinois will potentially be eligible for release, their legal freedom intact. {snip}