What to expect after cash bail ends Jan. 1, with insight from New Jersey and New York

In less than a week, the pretrial fairness portion of the SAFE-T Act will take effect, ushering in sweeping criminal justice reforms that include the elimination of cash bail, adding Illinois to the list of more than a dozen states that have enacted some type of bail reform.

If Illinois mirrors data from other bail reform states, including California, New York and New Jersey, it should see a drop in the number of residents spending time behind bars without a meaningful increase in crime. Adjusting to the new system won't be easy or quick, but cashless bail works, proponents say.

"No law is going to be absolutely perfect," said Christopher Porrino, who was New Jersey's attorney general when the Garden State adopted cashless bail five years ago.

Balancing act

Someone who is a danger to the community should be detained, Porrino said, but a nonviolent offender who is unlikely to miss court appearances should not.

"Having both sides of that equation properly balanced is the secret to making cashless bail successful," he said. "You have to trust prosecutors, judges and defense lawyers to strike a proper balance."

Without that balance, "you're letting out people who will wreak havoc on the community too readily, or you're detaining too many people who shouldn't be detained," he said, adding that New Jersey's system works because it affords judges the power to detain murderous defendants who have the resources to post bail, regardless of how high.

Under Illinois' law, many defendants facing felony charges will be released without having to post any money. (Defendants awaiting trial who are incarcerated can petition for release, but prosecutors can ask judges to deny release to those they deem dangerous.)

Judges can, however, detain defendants facing first-degree murder, criminal sexual assault, home invasion and other charges that, upon conviction, would require a mandatory prison sentence. Late last month, legislators amended the act to expand detainable charges.

Additionally, judges can order defendants held in custody if prosecutors convince them an individual poses a flight risk or a threat to someone else.

In their amendments, legislators clarified language regarding what constitutes a danger to the public. For a defendant to be held to that standard, prosecutors must prove to a judge that person is a "real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case."

Illinois' law also clarifies that people charged with a "forcible felony" or a non-probationable offense may be detained under the dangerousness standard. Defendants charged with domestic violence also may be detained.

Illinois statutes define forcible felony as: "treason, first-degree murder, second-degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnapping, kidnapping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement, and any other felony that involves the use or threat of physical force or violence against any individual."

Lastly, the recent amendments add hate crimes, felony animal torture, aggravated DUI causing bodily harm, DUI while operating a school bus and other DUI charges as detainable offenses if the defendant is deemed dangerous.

After the law goes into effect, police may argue it needs tightening, Porrino said. Meanwhile, social justice activists may argue too many defendants are being detained. New Jersey officials responded by making some nonlegislative adjustments to how the law was applied.

"We didn't scrap the law; we made a few tweaks," he said.

Period of adjustment

New Jersey isn't alone in changing its bail reform after its implementation.

Lawmakers in neighboring New York changed their law twice, both times adding charges to the list of offenses that make someone eligible to be sent to jail after being accused of a crime.

As it likely will in Illinois, New York's bail reform policy faced stiff and frequent criticism from opponents who claimed it would make people less safe. Crime rates rose in New York state, as they did elsewhere in 2020, but studies found bail reforms were not a primary cause.

An analysis from the New York Post showed only one of 528 shootings in the first six months of 2020 had been committed by someone released due to bail reform provisions.

A landscape study of all bail reform policies in the country performed last year by Harvard researchers found there had not been a meaningful increase in crime related to reforms.

But regardless of outcome, the new policy is likely to be a hot topic as the state adjusts to the new rules. Porrino's advice for Illinois residents is to relax.

"No one believed it would be perfect, and no one believed it would be easy," Porrino said, but cashless bail is working in New Jersey.

"Everybody needs to take a breath," he advised Illinoisans. "You've got a new law in Illinois; people have to let it play out a little bit."