Cash bail makes a mockery of our justice system. It punishes the poor not for their crimes — for they are innocent until proved guilty — but for their poverty. And despite what some politicians and pundits might tell you, cash bail is not designed to keep us safe. Anyone who can come up with a stack of cash is released right back on the street, and those who don’t have the money are left lingering in jail for months or even years while awaiting trail. Cash bail is a system of legal extortion that benefits the system of mass incarceration at the expense of the poorest and most vulnerable among us. Which is why, last year, a broad-based coalition led by the Illinois Network for Pretrial Justice persuaded the Illinois legislature to pass the Pretrial Fairness Act, which ensures that no one is jailed while awaiting trial simply because they can’t afford to purchase their freedom. But now, this important victory is at risk.
Right-wing billionaires have poured millions of dollars into a misinformation and fearmongering campaign in an attempt to maintain Illinois’ system of wealth-based incarceration. Conservative media pundits, politicians and law enforcement officials have exploited the confusion created by this rampant misinformation to launch a campaign to dismantle key provisions of the law. They hope to amend the Pretrial Fairness Act to create a system that is even worse than what we had before — one that doubles down on the harms it was meant to address. Simply removing money from the pretrial system without adding safeguards to prevent an increase in the number of people jailed in Illinois would miss the mark and not honor the intent of the law.
As longtime supporters of the movement to end mass incarceration, we are alarmed by these developments. Money bond is not only a profound economic injustice; it is also one of the greatest racial injustices of our time. Right now 1 of every 3 people behind bars is held in a county or city jail, and African Americans are jailed at almost four times the rate of white Americans, according to a 2015 report by Vera Institute of Justice, a research and policy group. While the historic roots of America’s mass incarceration crisis can be traced to our nation’s legacy of slavery, the tripling of the U.S. jail population over the last 30 years has largely been driven by an increase in pretrial detention and money bond.
Many people are incarcerated in jail for reasons that have little to do with public safety. In fact, if incarceration could make us safer, the United States, the most incarcerated country in the world, would already be the safest nation in the world. Losing freedom, even for just a few days, can mean losing your job, housing and even custody of your children. People jailed pretrial are less likely to be able to assist in their own defense and are more likely to be found guilty and serve longer sentences. They also are more likely to plead guilty to a crime they did not commit just so that they can return home to their community. For others with modest resources, the current money bond system is a system of wealth extraction that robs millions of dollars from communities of color every year in order to get loved ones out of the horrid conditions of county jails.
These realities have galvanized communities nationwide, including right here in Illinois. Lavette Mayes, a Black single mother of two from Chicago’s South Side, lost her home and business and nearly lost custody of both of her children after being incarcerated for more than a year because she couldn’t afford to pay $25,000 for her freedom. Mayes has said that “when you incarcerate a mom, you incarcerate the whole family,” highlighting how the harm of pretrial jailing affects entire communities. Her story, though, is unfortunately just one of many; more than a quarter million people pass through Illinois jails each year.
Inspired by the largest racial justice protests in our nation’s history, which followed the police killings of George Floyd and Breonna Taylor, Illinois legislators passed the Pretrial Fairness Act, an integral part of the SAFE-T Act, a set of comprehensive reforms to promote safety and justice within the criminal legal system.
The Pretrial Fairness Act ends the use of money bond and Illinois’ current wealth-based pretrial system that jails people solely because they are poor. The law makes the presumption of innocence a reality accessible to all — not just those who can afford it. Affected communities and criminal justice reform advocates, as well as victims’ groups and survivor advocates, have championed the changes. Survivor advocates have been particularly vocal and active in their support of the act because the current system not only harms those charged but also crime survivors who are not protected by a system of wealth-based incarceration.
Study after study has shown that changes to the pretrial system can help release more people from jail in a way that benefits the general public, helps defendants and doesn’t lead to more crime. In Illinois, most of the individuals jailed pretrial have not been determined by a judge to be dangerous; they simply are too poor to pay a money bond. A new report by the Civic Federation, a government research group, based on an examination of Cook County felony bond hearings, confirms that many people could be released from jail in ways that would not harm public safety.
Eliminating cash bail doesn’t mean unregulated release. Instead, the Pretrial Fairness Act will require judges to use a holistic process to determine whether someone will be held in jail pretrial.
Yet, every time our country has made progress in addressing the harms of systemic racism, there have been those who have aggressively clung to the past. It happened after emancipation, it happened after the end of segregation and it’s happening right now in Illinois. We urge the people of Illinois not to turn back.
The time is overdue to take this critical step toward making safety, justice and fairness a reality for all.
Michelle Alexander is a civil rights lawyer and advocate, a legal scholar and the author of The New York Times bestseller “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” John Legend is an award-winning singer-songwriter and activist.
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