How Much Pretrial Detention Does Cash Bail “Buy”?

Currently, pretrial detention and release practices in Illinois criminal cases are a lot like those in other parts of the country. But that’s about to change. The Pretrial Fairness Act (PFA), which goes into effect on January 1, 2023, will eliminate cash bail altogether and prohibit pretrial detention for most defendants.

One thing we’re learning in our evaluation of the new law is that Illinois’ cash bail system seems to result in much less pretrial "incapacitation” than is generally assumed. That’s important. In the period leading up to the effective date of the PFA, many have expressed concern that the new law, by strictly limiting the use of pretrial detention, could make Illinois communities less safe. The assumption here is that the current cash bail system protects the community by keeping dangerous people behind bars while their cases are being resolved.

However, the truth is that under current law, most people—even people accused of serious crimes—do not await trial in jail. Our analysis of data from the three years that preceded the pandemic (2017-2019) found that across the state only 19% of those with pending felony cases were in jail custody, while another 17% were on electronic monitoring or pretrial supervision. The rest—about 64% of all individuals awaiting trial for felony charges—were living in the community, without any sort of supervision.

These proportions varied from place to place, but there were few Illinois judicial circuits that held more than a small proportion of those accused of felonies in jail custody. And some—three circuits consisting of a total of 14 rural counties—jailed fewer than one-tenth of those with pending felony cases.