Originally published by Law360 November 17, 2023.
By Matt Alsdorf
A few weeks ago, Illinois became the most recent state to make sweeping improvements to its pretrial system. The Pretrial Fairness Act (PFA), which went into effect on September 18, addresses a range of pretrial policies and practices, from the first point of contact with law enforcement through case resolution.
Most attention has focused on the PFA’s elimination of money as a condition of pretrial release. This was also the central basis of a legal challenge that ended in July, with the Illinois Supreme Court’s decision in Rowe v. Raoul declaring the law constitutional.
Tucked into the court’s decision was an overlooked—but critical—holding about the meaning of “bail” that serves as a welcome corrective for a pretrial system that, nationally, has strayed far from its roots in American history and constitutional law.
The majority opinion explained that the Illinois Constitution’s bail clause “does not include the term ‘monetary,’ so it did not cement the practice of monetary bail.” [1] Further, the court explains, “monetary bail was all but unknown” at the time the constitution was drafted, and a “dictionary published that year defined bail as ‘the freeing or setting at liberty one arrested or imprisoned … under security taken for his appearance’ but did not mention money as the sole or even primary means of providing that security.” [2] In other words, bail is the process of releasing someone before trial, with money being one possible condition of release. Simply put, the court is clear that neither “bail” nor “sufficient sureties” refer only to money.
Yet, across the country, “bail” is used interchangeably with terms like “money bond,” a usage that reflects the assumption (and often reality) that paying money is the primary, if not only, way for people to get out of jail before trial. But, just as “bail” was never meant to be used this way, financial release conditions were never meant to determine who stayed in jail and who was released.
As the conflation of money and “bail” has solidified, Americans have paid an enormous price: our money-based system does not protect public safety, damages community well-being, and exacerbates racial and economic inequity. Thankfully, that is beginning to change—in Illinois and across the nation—as those responsible for pretrial decisions revisit the meaning of “bail” and thereby reconnect with foundational American legal principles.
How Bail Became So Misunderstood
The American pretrial system was largely modeled on English legal traditions, which had developed bail as a way to ensure that everyone was released before trial except those designated as being eligible for detention without bail, typically because of the severity of their alleged crime. Many state constitutions and statutes include a broad right to bail similar to Illinois’: “All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great…” [3] Even where a person’s alleged offense would allow for pretrial detention, detention is not automatic but rather an affirmative decision by the judge.
This sets forth a clear structure for release and detention. People accused of very serious offenses can be detained, and everyone else is “bailable by sufficient sureties.” As the National Institute of Corrections has written, “the notion that bailability should lead to release was foundational in early American law.” [4]
At this time, “sureties” were typically people responsible for the accused person’s appearance in court. In the mid-to-late 1800s, financial conditions of release slowly began to replace personal sureties. However, typically no money was required unless or until someone missed court. Over time, that changed, particularly after 1898, when the first for-profit bail bondsmen appeared, charging money or collateral before someone could be released.
As this practice became widespread, “bail” began to be used to refer to the process of requiring money payment—typically to a commercial bondsman—to get out of jail. This usage, which implicitly accepts that people who cannot pay will be detained, turns on its head the U.S. Supreme Court’s description of bail as the “traditional right to freedom before conviction.” [5] To this day, the United States and the Philippines are the only countries with pretrial release systems dominated by commercial bail bond companies.
America’s Legal Traditions
The right to physical liberty is central to any concept of freedom, and it is forcefully protected by the U.S. Constitution, including in the Fifth and Fourteenth Amendments (and in equivalent state provisions): “No person shall be…deprived of life, liberty, or property without due process of law.” [6] Due process narrowly circumscribes the state’s power to detain someone without proving they have violated the law.
As then-Chief Justice William Rehnquist wrote in 1987, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception” (emphasis added). [7]
The requirement that release be the “norm” and pretrial detention be “carefully limited” is also consistent with America’s presumption of innocence. “[F]reedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction,” the Supreme Court has held, and “Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” [8]
Not only should pretrial release be guaranteed to the vast majority of people entering the system but it should also be available equally. The fundamental principle of equality under the law requires that we consider whether our bail system systematically disadvantages people based on race or indigency.
How Money Undermines Justice
Decades of erroneously defining “bail” as money has all but erased Rehnquist’s directive that pretrial detention be “careful” and “limited.” Bail has gone from being the process of pretrial release to being the process of determining, through money, whether someone will be released.
Today, judicial officers rarely make direct, intentional decisions to detain someone because it is necessary to protect community safety or prevent intentional flight from prosecution. Instead, our system typically asks judicial officers to set financial release conditions for virtually everyone. Those who can pay get out, and those who cannot remain in jail. The illogic of this system is perfectly captured by the fact that money bonds—the mechanism used to detain so many people—are often imposed through something called a “release order.”
A system in which a person could be detained for virtually any charge, regardless of what state law says about “bailability,” simply because they lack the funds to pay their way out of jail, is not one that reflects due process, the presumption of innocence, or equal protection under the law.
Today, more than two-thirds of people in jail are there pending resolution of their case, and almost all of the jail population growth since 1999 has been driven by pretrial detention. [9] This burden is not borne equally, with people of color, especially Black and Hispanic people, subject to higher financial conditions and greater detention rates. The disproportionate negative impact of financial release conditions on people of color and people experiencing poverty is well documented. [10]
Whether a person is detained before trial has major impacts on whether they are found guilty, whether they are sentenced to incarceration, and how long those sentences are. [11] Detention also leads to housing instability, loss of employment, and disruptions to family. Perhaps as a result, unnecessary detention increases the likelihood of rearrest. [12] Even when people do secure release by posting a money bond, there is no evidence that they are more likely to return to court or remain arrest-free. [13] And the money-bond system disproportionately extracts wealth from historically vulnerable populations: Black and other families of color foot much of the bill for the bail bond industry’s $2.4 billion in annual profits. [14]
By replacing intentional judicial decision-making with the haphazard outcomes generated by money, our system has become ineffective at detaining those who should be detained, releasing those entitled to physical liberty before trial, ensuring court appearance, or protecting community safety and well-being. [15] In short, financial conditions of release impose massive costs on the system and communities without producing meaningful benefits.
A Better Path Forward
Illinois’ Pretrial Fairness Act sets an example of how pretrial release (aka “bail”) can be done well and in accordance with our founding legal principles. It follows a trail first cleared by the New Jersey, New Mexico, the District of Columbia, and the federal system. These jurisdictions use
legal frameworks that clearly define who is eligible for detention and require substantive hearings for judicial officers to decide whether detention is necessary to protect community safety or prevent flight. Money need not play any part.
A study conducted in 2012 showed how upside-down New Jersey’s pretrial system had become: nearly 40 percent of the jail population was held for an inability to post bond, with 12 percent held on $2,500 or less, meaning they were unable to come up with the $250 (or 10 percent) typically required. [16] Meanwhile, people who posed greater risks to public safety were released when they could afford to pay.
New Jersey virtually eliminated the use of money as a condition of release when it enacted the Criminal Justice Reform Act in 2017. It also set forth a process for prosecutors to request a hearing where a judge could decide whether to detain those charged with the most serious crimes.
In the years following implementation of the reforms, the New Jersey courts reported that the pretrial jail population decreased by roughly 40 percent, without a meaningful change in court appearance or rearrest rates; the people held in jail were charged with more serious offenses; and only one percent of people released pretrial were rearrested for a very serious offense. [17]
Reconnecting with American Law
Reconnecting our laws, policies, and practices to our foundational legal principles may require changes to state constitutions and statutes, and it will not happen overnight. But there are plenty of advancements jurisdictions can make right now to make their systems more fair, effective, and equitable.
Train Practitioners on the Law and Research
Jurisdictions should invest in education, including new staff orientation and continuing legal education, when people join agencies with pretrial responsibilities. Core information should include the legal principles of pretrial release and detention decisions—for example, that state law typically provides judicial officers with wide discretion to reduce the use of money bond, limiting its use to cases where they determine there is a risk the person will commit a very serious offense—or even to eliminate money as a condition of release altogether. The curriculum should include research on the pretrial practices that are (and are not) effective at increasing court appearance and encouraging law-abiding behavior on pretrial release.
State law enforcement training academies also play an important role. Law enforcement is the most public pretrial agency, able to speak to local media while judicial codes of conduct limit what courts can say. Training can help law enforcement see themselves as aligned, rather than at odds, with legal and evidence-based pretrial practices.
Invest in Data Collection and Analysis
States need to invest in data systems so local jurisdictions can adequately collect and aggregate data to understand how their systems operate, including where race and gender disparities occur. With better data, system decision-makers and community members can make better-informed decisions and work to improve outcomes for people facing charges, survivors of crime, and families and communities.
Provide Supportive Pretrial Services
Many jurisdictions are now offering supportive pretrial services that uphold legal principles, and they are looking to research for the most effective practices to support people’s pretrial success. These services may be offered by court systems, pretrial services agencies, and community-based providers, and can include court date reminders, child care, transportation support, and referrals for food, housing, health and mental health care, substance use treatment, and other services.
Focus on Equity
The current pretrial system creates outsized harms for Black and other communities of color. Addressing disparities in pretrial decision-making, from arrest through case disposition, must be central to any discussion of change. And it is critical that voices from the community—including victims, families, and people with lived experience in the system—be represented in the bodies considering pretrial improvements.
Change Is Coming
The pretrial system is under increasing scrutiny nationwide. There is growing recognition that relying on financial release conditions is not an effective way to enhance community safety and, instead, harms the people and communities it is meant to serve.
Those responsible for making pretrial decisions must reconnect with American legal principles and an understanding of “bail” not as money but as the process of release before trial. The integrity of our system of justice is at stake.
Matt Alsdorf is an associate director at the Center for Effective Public Policy, where he co-directs the national initiative Advancing Pretrial Policy and Research.