Fall 2018 Journal: Addressing the Injustice of Cash Bail

By Theodore Kupper

Edited by Daniel Lao-Talens

Cook County Jail in Chicago, Illinois violates the American principle of presumed innocence and exacerbates the vast wealth and racial inequality present in both Chicago and in the United States more broadly. It keeps certain individuals imprisoned by virtue of their poverty alone, as they are unable fund their release prior to a trial. Comprehensive bail reform can address these fair treatment concerns and reduce overall costs for the county’s correctional system. Eliminating cash bail entirely would level the legal playing field for all citizens regardless of wealth. Fully abolishing this system would signal Cook County’s commitment to progressive criminal justice reform and establish the county as a successful model for the rest of the United States. 


Cook County Jail exists today as a prime example of how the cash bail system fails as a criminal justice tool. It violates the American principle of presumed innocence and exacerbates the vast wealth and racial inequality present in both Chicago and in the United States more broadly. It keeps certain individuals imprisoned by virtue of their poverty alone, as they are unable fund their release prior to a trial. The disparity between different income groups parallels different treatment based on race, as well: 86 percent of the inmates at Cook County Jail are black or Latino, far higher than the national average which hovers around 60 percent.1 

This problem is not unique to Cook County; similarly objectionable conditions are present throughout the rest of the United States, where 70 percent of the country’s prison population are “arrestees” yet to be sentenced.2 In New Orleans, for example, the average pre-trial waiting period for individuals charged with a felony is four months. Yet the injustices created by the practice of cash bail are almost exclusively an American issue. The United States and the Philippines are the only countries in the world that legally allow a for-profit bail industry. This industry, represented by the powerful American Bail Coalition lobby, earns $2 billion annually and has fought the against the advent of bail reform tooth and nail.3 The United States’ lack of progress in this arena has an indelibly human cost. The needless deaths of Kalief Browder in New York and Sandra Bland in Texas are directly related to their inability to afford bail payment. Cook County has an opportunity to take a leading role in the fight for bail reform in the United States, and its actions must be decisive. 


Individuals unable to afford bail often languish behind bars for minor charges. Rather than waiting an indeterminate amount of time to fight the charges in court, these people frequently plead guilty to crimes they did not commit to escape the interminable uncertainty of jail. These guilty pleas remain on the criminal records of former inmates and hinder their employment prospects after they leave jail.4 Of the incarcerated population at Cook County Jail, 95 percent are “Pre-Trial Offenders” — individuals who have yet to be convicted of a crime — while the national average is 60 percent.5 Due to gridlock and and an overworked judiciary, over 1,000 inmates spent more time in jail awaiting trial in 2015 than they were ultimately sentenced to serve.6 Additionally, 75 percent of Cook County Jail inmates are imprisoned for nonviolent offenses, a reminder of the consequences of the United States’ failed “War on Drugs”.7


It costs $126 a day to keep a prisoner at Cook County Jail — equivalent to about $45,000 a year. For a county as cash-strapped as Cook, needless imprisonment of individuals constitutes a severe waste of limited financial resources. The unnecessary prison backlog disproportionately affects those unable to post bail. In Cook County Jail, black and Latino inmates make up a majority of that population. For a county in dire need of financial assistance, reducing the jail population will save a significant amount of public money. 


In recent months Cook County has made significant strides to reduce the disproportionate number of low-income individuals incarcerated at Cook County Jail. Over the past four years, the jail’s population has fallen from about 10,000 to around 6,350 inmates, including a drop of 15 percent from September to October 2017 alone.8 This most recent reduction is due to a court-ordered effort to reduce cash bond rulings, backed by Cook County Sheriff Tom Dart. Additionally, the Bail Reform Act (SB 2034) signed into law by Illinois Governor Bruce Rauner in June 2017 encourages judges to move away from cash bail. This bill opens the door for more rulings in favor of options like release with electronic home monitoring or drug counseling, more productive alternatives to incarceration. Judges who set a cash bail that defendants cannot afford are now required to hold a bail rehearing within seven days. However, despite Illinois’ new “presumptive” status against monetary bail, cash bail still accounts for about 20 percent of the rulings made by Cook County judges, indicating a reluctance to fully embrace new sentencing structures.9


Though operating under an improved directive, judges today are still given too much leeway within sentencing guidelines. Cook County has made strides in the past year to reduce the prevalence of cash bail, but a more effective policy intervention would be the complete elimination of the cash bail system. Instead of prioritizing cash bail at release hearings, judges should instead make use of the Public Safety Assessment (PSA) tool, an algorithm already utilized in New Jersey and Kentucky that grades individuals on two criteria: their likeliness to fail to return to court, and their likeliness to engage in new criminal activity.10 Judges could still retain a level of discretion regarding who is granted leave, and certain individuals would receive bonds by virtue of individual recognizance — release based on a promise to return for trial without having to pay. Offenders deemed violent, dangerous, or likely to flee would be held in jail until their trial without the possibility for bond. In this system, an individual’s wealth would no longer be a deciding factor in how long they remain incarcerated. 

Today, judges rarely make use of the Public Safety Assessment tool available to them. A 2016 report by the Sheriff’s Justice Institute obtained by a Freedom of Information Act request found that in Cook County from February to March of 2016, judges “rarely administer[ed] the recommended monitoring level” that the PSA advised.11 By eliminating the cash bail practice altogether, the proposed policy alternative would fully mandate new sentencing regulations and require judges make use of the PSA tool when reaching a bail judgment. The number of individuals released on individual recognizance would therefore increase, and the number of individuals languishing behind bars due to lack of available funds would plummet. The status quo in Cook County is better today than it was just a year ago, but it still leaves much to be desired. Fully eliminating the cash bail system will end the inequitable practice of keeping individuals imprisoned because of their poverty. 


The alternate policy proposal also includes important ancillary benefits for Cook County beyond a more equitable criminal justice system. Terminating a practice that effectively locks people up for being poor will also save Cook County a considerable amount of money. Full elimination of the cash bail system could potentially drop the population at Cook County Jail below 5,000. At $126 per prisoner per day, that constitutes a sizable reduction in cost for a county that is exceedingly cash-strapped. This could serve to recoup some of the county income lost following Illinois’ Soda Tax repeal in 2017.  Furthermore, a central reason Sheriff Dart refused to fully support the Bail Reform Act was its failure to close a loophole affecting imprisoned individuals with access to large amounts of cash. Dart described Cook County Jail as a “revolving door” of gang-affiliated individuals arrested and booked on weapons charges, and has recently tempered his support for Cook County’s bail reform for fear of too many violent criminals walking free.12,13 After a cash bail is set, these individuals are able to rely on other gang members to put up large sums of money and get them out of jail quickly. Fully eliminating cash bail would close this loophole and ensure that judges have the proper authority to keep individuals with extensive and problematic records in jail. The current Bail Reform Act does not address this flaw in the system. 


This proposal is not without its detractors. Critics point to legitimate concerns that the PSA would become a new tool used to set bail amounts rather than replace them, undermining the goal of repealing bail practices. Although there is a case to be made for retaining some form of bail in conjunction with the PSA, doing so would give judges who are unwilling to implement the PSA a way to violate the spirit of bail reform. Mandating the PSA as a primary means of determining pre-trial sentences without bail forces the system to implement a more equitable process across the county.

Critics also note that the national and local history of racial bias in policing generates reasonable concerns that the non-bail determinations of release or imprisonment will lead to racist application and worse outcomes for minority defendants. Although blacks make up only around 13 percent of the U.S. population, they are vastly overrepresented in the prison population. 56 percent of prisoners serving life without parole are black. For nonviolent offenses, which come with greater judicial discretion, black prisoners comprise 65 percent of those serving life without parole.14 In Illinois alone, blacks are 33 times more likely to be sentenced to life without parole for a nonviolent crime than their white counterparts.15 These statistics underline the severity of racial bias in America’s criminal justice system and sentencing structures, and demonstrate that Illinois is not immune to the problem. Criminal risk assessment tools like the PSA have been promoted by some as a race-neutral alternative that can mitigate racial bias by limiting the human element in sentencing decisions, but this claim deserves scrutiny. A 2016 ProPublica article contends that the risk scores themselves are racially biased, as black individuals with similar criminal backgrounds to whites are systematically given higher risk scores.16 While recent analysis has refuted some of ProPublica’s findings, the potential for racial bias in risk assessment technology remains a salient point and one worthy of continued consideration.17

On a more basic level, there are significant questions as to whether such a change is politically feasible in the first place. Reduced prevalence of cash bail has caused backlash in other places where it has been implemented. In New Jersey, for example, police chiefs have complained that people they arrest are back on the streets only days later.18 They and others see this as a risk to public safety, a common refrain of opponents of bail reform. However, studies have shown that low-risk offenders held in jail for shorter periods of time (24 hours or fewer) are actually less likely to reoffend upon release than those held for longer (2-3 days).19 Yet this effect remains a difficult point to argue politically. Additionally, the proposed policy would eliminate the need for bail bondsmen in Cook County, likely drawing the wrath of the American Bail Coalition. A powerful lobby, the American Bail Coalition spends millions of dollars annually in political contributions to protect the practice of for-profit bail bonds in the United States.20 They will undoubtedly take a strong stance against a full abolition of the practice. Finally, it may be hard to draw bipartisan support for prompt expansion of bail reform after a bill just passed in June. Governor Rauner signed the Bail Reform Act into law but he has been hesitant to support other progressive legislation. With a difficult upcoming election in November, Rauner is unlikely to support a bill that could upset large swaths of Republican voters. This is not to say that implementing this proposed policy is impossible, but it has the potential to be a politically difficult endeavor. 


Cook County should eliminate the practice of cash bail to rectify the inequities of its criminal justice system. The county cannot continue the practice of holding individuals in prison because they are poor. It has taken steps to resolve this issue during the past year, but Cook County must go farther. Eliminating cash bail will send a strong message that the county is taking a progressive approach to criminal justice reform. It will end a troublesome example of the wealth and racial inequality present in Chicago while simultaneously reducing expenditures and making it harder for violent criminals to walk free. Though it could be a political struggle to push this reform through, it will be worthwhile and to Cook County’s benefit in the future. 

1. Vinicky, Amanda. “Cook County Jail Population Down 15 Percent After Bond Reforms.” Chicago Tonight | WTTW. November 20, 2017. Accessed April 17, 2018. https://chicagotonight.wttw.com/2017/11/20/cook-county-jail-population-down-15-percent-after-bond-reforms.
2. Covert, Bryce. “America Is Waking Up to the Injustice of Cash Bail.” The Nation. October 20, 2017. Accessed April 26, 2018. https://www.thenation.com/article/america-is-waking-up-to-the-injustice-of-cash-bail/.
3. Covert.
4. Jacobs, James. “When, If Ever, Does Employment Discrimination against Ex-offenders Violate Title VII?” The Washington Post. February 03, 2015. Accessed April 17, 2018. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/02/03/when-if-ever-does-employment-discrimination-against-ex-offenders-violate-title-vii/.
5. Ahsan, Kamil. “The Instantaneous Injustice of Bail.” The American Prospect. May 01, 2017. Accessed April 17, 2018. http://www.prospect.org/article/instantaneous-injustice-bail.
6. Vinicky.
7. Olson, D.E., Tahier, S. (2012). Population Dynamics and the Characteristics of Inmates in the Cook County. Chicago, Illinois, Cook County Sheriff’s Reentry Council.
8. Vinicky.
9. Ibid.
10. Thompson, Megan, and Mori Rothman. “New Jersey Eliminates Most Cash Bail, Leads Nation in Reforms.” PBS. July 22, 2017. Accessed April 17, 2018. http://www.pbs.org/newshour/show/new-jersey-eliminates-cash-bail-leads-nation-reforms.
11. Ahsan.
12. Crepeau, Megan. “Dart Warns of ‘dramatic Increase’ in People Charged with Gun Crimes Released on Electronic Monitors.” Chicagotribune.com. February 23, 2018. Accessed April 17, 2018. http://www.chicagotribune.com/news/local/breaking/ct-met-gun-offenders-electronic-monitoring-sheriff-dart-20180222-story.html.
13. Geiger, Kim. “Rauner Signs Law to Change Rules for Paying Cash to Get out of Jail.” Chicagotribune.com. June 09, 2017. Accessed April 17, 2018. http://www.chicagotribune.com/news/local/politics/ct-bruce-rauner-bail-bill-met-0610-20170609-story.html.
14. Turner, Jennifer, and Jamil Dakwar. Racial Disparities in Sentencing. American Civil Liberties Union. October 27, 2014. Accessed April 26, 2018. https://www.aclu.org/sites/default/files/assets/141027_iachr_racial_disparities_aclu_submission_0.pdf.
15. Ibid.
16. Angwin, Julia, Jeff Larson, Lauren Kirchner, and Surya Mattu. “Machine Bias.” ProPublica. May 23, 2016. Accessed April 26, 2018. https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing.
17. Doleac, Jennifer L., and Megan Stevenson. “Are Criminal Risk Assessment Scores Racist?” Brookings. August 22, 2017. Accessed April 26, 2018. https://www.brookings.edu/blog/up-front/2016/08/22/are-criminal-risk-assessment-scores-racist/.
18. Thompson, Megan, and Mori Rothman. “New Jersey Eliminates Most Cash Bail, Leads Nation in Reforms.” PBS. July 22, 2017. Accessed April 17, 2018. http://www.pbs.org/newshour/show/new-jersey-eliminates-cash-bail-leads-nation-reforms.
19. Bozelko, Chandra. “The Cash Bail System Should Be Eliminated Rather than Reformed | Chandra Bozelko.” The Guardian. February 05, 2016. Accessed April 17, 2018. http://www.theguardian.com/commentisfree/2016/feb/05/the-cash-bail-system-should-be-eliminated-rather-than-reformed.
20. O’Neal, Lydia. “What If You Can’t Afford Bail? A Few Large Companies Rake In Billions In Bond Business.” International Business Times. May 16, 2017. Accessed April 17, 2018. http://www.ibtimes.com/political-capital/what-if-you-cant-afford-bail-few-large-companies-rake-billions-bond-business.