The cost of freedom hardly seems quantifiable. Still, it is the norm in the United States for the accused to pay cash bail to be released from custody before trial. Even before standing in front of a jury, the wealthy have a decisive advantage – a clear contrast to the guaranteed equal protections, as stated in the Fourteenth Amendment. Cash bail plays well into the greater worries about the influence of money in the judiciary, and abolishing it is an important step towards progress and reform, ensuring that the revolutionary promises of the Fourteenth Amendment are fulfilled and that price tags have no place in the justice system.

To combat the unjust influence of money in the judiciary, Illinois became the first state to abolish cash bail after the Illinois Supreme Court upheld the Illinois Pretrial Fairness Act in the landmark court ruling Rowe v Raoul (2023).1 Under this legislation, everyone is eligible for pretrial release or to be let out of custody before their trial. Typically, the defendant is responsible for proving why they should not be detained. But now, in Illinois, the burden of proof falls on the government. The act also specifies the procedures that judges must follow to impose pretrial detention.2 It aims to lessen the disadvantages of low-income individuals who cannot afford to pay their bail, as well as racial minorities who are disproportionately detained pretrial – thus making justice more accessible in the judicial system.

Despite this, passing the act was not without difficulties. The Illinois Supreme Court rejected three separate provisions that lower courts claimed violated the law in the Illinois Pretrial Fairness Act – the bail clause, the separation of powers clause, and the crime victims' rights clause. The first clause refers to the tradition of a bail being set. The Illinois Supreme Court ruled that this clause serves a broader purpose of balancing defendant rights with the requirements of the legal system, which can be fulfilled without the use of monetary bail. Next, the separation of powers clause is a set of limitations on the branches of government to prevent tyranny. Opponents of the Illinois Pretrial Fairness Act claimed that the act was an attempt of the legislative branch to amend the Constitution; however, the Court ruled that changes to the legal framework, such as abolishing cash bail, are well within Illinois' legislative powers.

The last clause, however, has become the source of the most controversy. The crime victims' rights clause sets protections for the victim and their families. Many opponents of the act worry that the removal of cash bail will put victims in danger, as the defendants can move freely before their trial date. However, on a case-to-case basis, judges are responsible for considering the potential safety risks of the accused being released, and victims are given notice of any relevant pretrial proceedings.3 This provision of the bill acts to protect victims while not putting a financial burden on the accused, who are considered innocent until proven guilty.

This legislation marks an important moment in the American justice system, indicating a change from a normalized yet discriminatory practice. Such practices violate the "Equal Protection Clause" under the Fourteenth Amendment, which protects people from discrimination from the government. This clause has been applied to several landmark cases ranging from reproductive rights in Roe v Wade (1973) to racial discrimination in Brown v Board of Education (1954) to gender discrimination in Reed v Reed (1971).4,5,6 The Fourteenth Amendment has been applied time and time again to point out and amend instances of unfair treatment toward a group of people. 

In the case of cash bail, this legislation guaranteeing "equal protection" is violated because these unfair practices disproportionately harm impoverished and minority individuals and communities. Due to their socioeconomic status, these individuals often are not afforded the equal opportunity to prepare an adequate defense due to pretrial detention, which creates limitations on their ability to meet with their defense counsel and assist in preparing their case and an inability to afford the proper resources to support their defense due to lost income.7 Individuals of higher socioeconomic status are given an extra layer of protection that is unavailable to many due to financial hardships. This economic difference illustrates the disproportionate protection of defendants under the justice system for monetary reasons – a clear violation of the Equal Protection Clause of the Fourteenth Amendment. 

Monetary bail creates an unnecessary and disproportional strain on the accused. Many individuals cannot afford the federal bond of an average of ten thousand dollars, or the equivalent of eight months' income for the typical detained defendant.8 As a result, 80% of current local jail populations are made up of non-convicted defendants who could not afford bail.9 It is valuable to emphasize that individuals in the United States are legally considered innocent until proven guilty, meaning that this entire population in jail – consisting of an astonishing 427,000 people – is presumed innocent.10 The root of their imprisonment is money, not their alleged crime, which has yet to be presented in court. 

Time spent in jail is a deeply traumatic experience that can leave irreversible psychological and financial problems for a person and their loved ones. People have reported losing jobs, homes, and child support during pretrial detention.11 Additionally, pre-trial detention has been found to increase the likelihood of a conviction, housing insecurity, and re-arrestion.12 In fact, a 2013 study found that low-risk defendants held for 8-14 days during the pre-trial period are more than 50% more likely to commit future crimes than those detained for less than a day.13 Time spent incarcerated and separated from their community can have a lasting negative impact on a person's life and their future role in society. It sets them up for failure after their trial – whether they are deemed guilty or not – due to the psychological, social, and monetary impact of their jail time. The deadly combination of being accused of a crime and being impoverished puts a person's entire life in jeopardy, creating permanent consequences.

Like most political issues in America, there is also a racial layer to the cash bail argument. Studies have found that when compared to their white counterparts, Black and brown defendants are at least 10% more likely to be detained pretrial or be required to pay cash bail, and their bail amounts are consistently higher despite them being less likely to be able to afford it. 14 The abolishment of cash bail helps to eliminate this disparity and minimize the impact of systematic racism at this stage of the criminal justice system. Furthermore, race is a protected class in the United States, meaning they are explicitly protected by anti-discrimination laws, such as the Fourteenth Amendment. Bail, as a result, is a clear violation of the Equal Protection Clause due to the racial discrepancy. Abolishing cash bail will act as a safeguard to keep these individuals out of jail for baseless crimes and to give them the promised equal protection from the Fourteenth Amendment. 

In modern history, cash bail has become a tool that unjustly keeps low-income and racial minority defendants in jails, thus violating the equal protection clause of the Fourteenth Amendment. This disproportionate strain perpetuates issues of inequality, and the cost, both monetary and social, harms entire communities. The abolishment of cash bail, as accomplished by the Illinois Pretrial Act, is a critical step towards reforming the judicial system to promise justice to all, not just those who can afford it.

____________

1 Civil Rights Corps. "Facts on Money Bail." 2021 civilrightscorps.org/wp-content/uploads/2021/10/9i2UrGPoQJeM6uCmG5VZ.pdf.

2 Digard, Léon and Swavola, Elizabeth. "Justice Denied: The Harmful and Lasting Effects of Pretrial Detention" New York: Vera Institute of Justice. April 2019. www.vera.org/downloads/publications/Justice-Denied-Evidence-Brief.pdf

3 Laura and John Arnold Foundation. "Research Summary: Pretrial Criminal Justice Research." 2013.

4 Sawyer, Wendy. “How Race Impacts Who Is Detained Pretrial.” Prison Policy Initiative, October 9, 2019. www.prisonpolicy.org/blog/2019/10/09/pretrial_race/#:~:text=Across%20the%20country%2C%20Black%20and,detained%20pretrial%20than%20white%20defendants. 

5 Sawyer, Wendy and Wagner, Peter. " Mass Incarceration: The Whole Pie 2023." Prison Policy Initiative, March 14, 2023. https://www.prisonpolicy.org/reports/pie2023.html.

6 Trigilio, Trisha. “The Illinois Supreme Court Cash Bail Ruling, Explained: ACLU.” American Civil Liberties Union, July 21, 2023. www.aclu.org/news/criminal-law-reform/the-illinois-supreme-court-cash-bail-ruling-explained. 

7 U.S. Commission of Civil Rights. "U.S. Commission on Civil Rights Releases Report: The Civil Rights Implications of Cash Bail." January 20, 2022. www.usccr.gov/news/2022/us-commission-civil-rights-releases-report-civil-rights-implications-cash-bail#:~:text=Among%20the%20report%27s%20observations%3A,other%20demographic%20group.