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If the Ban on Bail is Successful, Other States Should Follow

Illinois eliminated cash bail as a part of the SAFE-T Act and enacted it on Sep. 18. Before it was enacted, it was challenged by law enforcement with a lawsuit with charges that the bill violated the right to bail, the rights of crime victims and separation of powers under Illinois law. The Supreme Court of Illinois disagreed, stating, “The Illinois Constitution of 1970 does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public.” Rather, cash bail causes instability in marginalized communities and adds to the surmounting financial struggles they already have. Often completely ruining their family’s lives and worsening the community. 


Illinois is already witnessing the effect, with Cook County law enforcement seeing a decrease in incarceration. In smaller counties, incarceration has shrunk where it was commonplace to detain for minor and petty crimes.


This is great news because the U.S. has one of the highest incarceration rates in the world. 25% of those in jail are for minor and petty crimes. Shrinking the incarceration rate is important because incarceration hurts individuals and communities whether they are guilty or not. Even in pretrial cases, those detained for even a day can be subjected to a large debt and possible loss of job or reputation. As one study even noted, those detained in pretrial were more likely to be rearrested for a crime or not show up to court. 


In the worst cases, some have been charged with crimes and have been detained for years. In the case of Nikuya Brooks, who in 2017 was detained for drugs that her husband was hiding in their car without her acknowledgment. Her family was unable to pay the $150,000 bail, so she was detained for an entire year. 


If the SAFE-T Act had been enacted then, the judge would have likely released her within the day, as she was not a threat to her community. However, because there was no SAFE-T Act then, Brooks lost her job, was unable to see her children and her reputation was tarnished for future jobs. This is a prime example of why the bail ban helps not only individuals but also communities. 


Before her arrest, Brooks was providing for her community. Afterward, she could barely get a job. We can see how it affects people on a larger scale. People who are detained and lose everything are likely unable to give back to their community. In some cases, lack of money and inability to work could lead to one recommitting crime out of frustration and desperation. 


Some have critiqued the bill as reckless, one that will lead to more crime, usually pointing out Chicago’s number of murders per year and the failings of bail restrictions in New Jersey and New York. While similar, the New York and New Jersey bail restriction doesn’t completely ban bail, a judge can detain and force bail if a serious crime is committed. 


Some critics point out the case of Adam Bennefield, a New Jersey man who assaulted his wife and was released only to kill her afterward. The problem with addressing this case as a failing of the law is that it doesn’t properly blame who is at fault. The judge decided whether Bennefield would be detained or not. Following Illinois’s rules, Bennefield would likely be detained since he had harmed a specific person, who could easily be targeted again for more violence. 


If one wants to critique the cash bail ban, one should be more critical of a judge’s incompetencies than the fundamental idea of eliminating cash bail. It is hard not to acknowledge human folly in the judicial system, especially in Chicago’s corrupt political history. It is fair to say there will be mistakes in the judicial system leading to crime on the margins, but this is a mistake of the individual judges rather than the law itself. This could strike residents as concerning or even scary that crime will go unchallenged in pretrial. 


But the alternative is not better. 


Cash bail doesn’t impede a person from committing a crime, and the studies discussed above prove that it rather harms than protects citizens. That is the justification for testing this new policy in Illinois. The outcome could create great reform not only in Illinois but also help solve America’s incarceration crisis. 


The opinions expressed in this article are those of the individual author.

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