By Christian Purnell.

 

With Illinois’ Pretrial Fairness Act (PFA) set to take effect in a matter of months, opponents are stepping up their efforts to spread misinformation about the law on social media. Homing in on a provision of the PFA that abolishes cash bail in the state’s pretrial system, Twitter trolls, and even Illinois’ Republican gubernatorial candidate, Darren Bailey, have characterized the law as a “Purge law,” and championed a new Twitter hashtag: #purge.^[1]

For those unfamiliar with the 2013 horror flick, The Purge is a dystopian thriller set in some future version of the United States, and centers around a law that legalizes all crime, including murder, for a 12-hour period. The film–which follows an uber wealthy businessman who made a fortune selling home security systems specially designed to protect wealthy homeowners during the purge–is laced with clear critiques of a system that profits the wealthy and powerful, at the expense of the health and safety of the poor and marginalized. Though the government pitches the purge as a universally beneficial, controlled, and cathartic outlet for humanity’s worst impulses, the purge disproportionately kills people who cannot afford to install security systems or flee the cities.

Given that the film is most associated with scenes of violence and anarchy, tying the PFA to the Purge is nakedly a fear mongering tactic. Opponents of criminal justice reform have sought to conflate attempts to reduce jail and prison populations, with lawlessness and violence for time immemorial, and many commentators were quick to condemn this campaign as much of the same. The comparison is also supremely ironic. Though the film’s critiques could be aimed at most American institutions, they apply perfectly to America’s unique brand of cash bail that profits the few at the expense of the poor and marginalized. In connecting the provision of the Pretrial Fairness Act that eliminates cash bail to the Purge films, opponents of bail reform are ironically drawing attention to the exact issues of power, control, and greed that the Illinois legislature hopes to address with the law.^[2]

That said, regardless of how cheap, fearmongering, or ironic the #purge campaign may be, it would be foolish to write it off. The Pretrial Fairness Act and its parent bill, the SAFE-T Act are not perfect pieces of legislation, but they represent important efforts in the movement to end America’s mass incarceration epidemic. And, though written in law, they are not written in stone. Criminal justice reform bills have suffered setbacks at the hands of lesser fear campaigns.

It has been a tumultuous decade for the movement to abolish cash bail. In the late 2010’s, six states passed bills to eliminate, or cap, cash bail for certain offenses.^[3] Facing ballooning jail populations and growing public support for reform, Alaska, California, Georgia, New Jersey, New York, and Vermont, joined Washington, D.C.–who largely eliminated cash bail in 1992–in a push to retrench their courts’ reliance on cash bail.^[4]  However, within a matter of years, or months if you live in New York, some of the trailblazing states began to roll back, or undercut their own reform efforts. In April 2020, New York legislators rolled back a bill that eliminated bail for most nonviolent offenses only four months after it took effect.^[5] Opponents of the bill successfully painted the reform efforts as a “get out of jail free card” and, without evidence, tied the law to an uptick in crime during the pandemic.^[6] Also in 2020, following Georgia’s 2018 reforms that eliminated cash bail for those accused of violating city ordinances, the Georgia senate considered a bill that would do away with “own-recognizance bonds” and strengthen the cash bail system.^[7] Lastly, California, where the median cash bail amount is $50,000, failed to implement bail reforms its legislature passed in 2018.^[8] Efforts to nullify the California bill interestingly came from both the bail bond industry, and bail reform advocates who worried the law would give too much discretion to county judges, and rely too heavily on controversial risk assessment tools.^[9]

Bail reform’s recent history of ups and downs contains two important lessons for how the Illinois law, and other nascent bail reform efforts, can achieve long lasting change. First, misinformation campaigns like those in New York are capable of swaying public opinion enough to force lawmakers to scale back reform ambitions or roll back existing measures. Fighting back against misinformation is an important first step. Second, learning from California, advocates must focus not just on eliminating practices like cash bail, but also on ensuring they are replaced with less oppressive alternatives.

Confronting misinformation is relatively easy. While there is ample evidence that it disproportionately harms poor communities of color, there is no evidence that cash bail protects communities from crime, and inconclusive evidence that it secures a defendant’s appearance at future court proceedings.^[10] Contrary to insinuations in the #purge narrative, the bill does not stop police from enforcing crimes, nor does it remove all discretion from judges. Under the Pretrial Fairness Act, judges retain the ability to hold a defendant in pretrial detention if they are accused of certain types of felonies, including murder and sexual assault, or in situations where the prosecutor can show that the defendant is a “’flight risk’ or ‘poses a specific, real, and present threat to any person or the community.’”^[11] The act does not serve as a get-out-of-jail free card, but rather establishes a “presumption in favor of release” for a wide swath of defendants accused of committing misdemeanors, traffic offenses, and petty offenses.^[12] In a state where nearly 35,000 people held in jails before trial were charged with misdemeanor offenses, these reforms could be enormously impactful.^[13] Researchers expect that, after the Pretrial Fairness Act takes effect, between 44,000 and 70,000 people will be eligible for pretrial detention.^[14] While still high, this range is far lower than the 174,000 held last year before trial.^[15]

Moreover, instead of making communities less safe, eliminating cash bail and reducing pretrial detention could greatly improve public health. Research shows that as little as three days in pretrial detention can become “severely destabilizing” for the detained individuals and their families. Defendants spent an average 34 days in pretrial detention in Illinois in 2020 and 2021. ^[16] Detained defendants can lose their housing, their employment, and the custody of their children.^[17] They also experience a weaker negotiating position during negotiations with prosecutors, which translates to higher sentences.^[18] Ironically, studies show that the more time a low-risk offender spends in pretrial detention, the more likely they are to engage in criminal behavior once released.^[19]

Furthermore, cash bail and pretrial detention are extremely expensive for poor communities in America. In most states, private companies facilitate cash bail, and poor communities of color pay millions in premiums to bail bondsmen to secure their release, or that of a family member. One study found that in Maryland, over a five-year period, black defendants paid $181 million dollars in premiums to bail bond companies, more than double the total amount for defendants of all other races.^[20] This is not even considering the costs of court fees, phone fees, and the opportunity cost of detention.^[21] Another study published by Brookings found that on average, due to missing work and adverse employment outcomes following detention, those detained pretrial for just three days experienced aggregate income losses of $29,000 over the course of their working life.^[22] That same study estimated that eliminating cash bail and its pretrial consequences could increase national aggregate earnings by $80,901,000,000.^[23] Eliminating cash bail will make our communities healthier, safer, and will keep wealth inside marginalized communities and out of the pockets of bail bondsmen.

The second take away from bail reform’s recent history is more complex. There is a risk in eliminating cash bail that an equally oppressive practice will emerge in its place. In their new article Bail and Pretrial Justice in the United States: A Field of Possibility, sociologists Joshua Page^[24] and Christine S. Scott-Hayward^[25] argue that the best approach to reform is to remain vigilant and bring communities most affected by pretrial detention to the table.^[26] Page and Scott-Hayward hold that the story of bail is just as much about control and faulty assumptions, as it is about money. Effective reform will address both. The assumption that people who encounter the criminal system universally need to be controlled or confined before trial to secure their appearance at court and protect the public lies at the core of cash bail and pretrial supervision methods.^[27] It also motivates pretrial surveillance models that are often used as a cash bail alternative, but can be just as oppressive as the system they replace.^[28] Defendants on pretrial monitoring are subject to conditions such as mandatory drug testing, counseling, daily check-ins, and location monitoring,^[29] often at their own expense.^[30] The assumptions underlying pretrial detention and surveillance do not hold water in the research. Studies show that far more people could be released on their own recognizance without raising crime levels, and indicate that pretrial appearance rates, though already high, can be increased by common sense approaches such as automated text message campaigns.^[31]

Despite recent setbacks in the national movement, successes like the Illinois Pretrial Fairness Act inject optimism into the bail reform movement. However, passing a law eliminating cash bail is just the start. Fighting misinformation is an important and thankless endeavor that will help to prevent bail reform from sliding back two steps for every one step it takes. And, thinking critically about what replaces cash bail will help to bring new supporters into the fray.

So, the next time a friend or relative sends you a #purge meme, or questions your decision to travel to a state that has eliminated cash bail, use some of the above facts to push back against their assumptions and fear, and invite them to join the effort to reimagine pretrial justice in the U.S.

[1] Noah Asimow & Pascal Sabino, No, There is No ‘Purge Law’ in Illinois. Here are the Facts About Ending Cash Bail, Block Club Chicago: Citywide (Sep. 14, 2022),

https://blockclubchicago.org/2022/09/14/no-there-is-no-purge-law-in-illinois-here-are-the-facts-about-ending-cash-bail/

[2]Jerry Nowicki, What happens when cash bail ends?, NPR: Illinois (Sep. 19, 2022) https://www.nprillinois.org/illinois/2022-09-19/what-happens-when-cash-bail-ends; Grace Kinnicutt, What’s in the SAFE-T Act? A look at the 2021 criminal justice reform and how it has evolved (May 18, 2022) https://www.capitolnewsillinois.com/NEWS/whats-in-the-safe-t-act-a-look-at-the-2021-criminal-justice-reform-and-how-it-has-evolved.

[3] Beatrix Lockwood & Annaliese Griffin, The State of Bail Reform, The Marshall Project: The System (Oct. 30, 2020) https://www.themarshallproject.org/2020/10/30/the-state-of-bail-reform.

[4] Id.

[5] Jamiles Lartey, New York Tried to Get Rid of Bail. Then the Backlash Came, Politico: Magazine (Apr. 23, 2020) https://www.politico.com/news/magazine/2020/04/23/bail-reform-coronavirus-new-york-backlash-148299#:%7E:text=One%20of%20the%20most%20high,many%20misdemeanors%20and%20nonviolent%20crimes.

[6] Id.

[7] Lockwood & Griffin, supra note 3.

[8] Id.

[9] Hanna McCrum, California Bail Reform: Where Are We Now?, Geo. J. on Poverty Law & Policy Blog,

https://www.law.georgetown.edu/poverty-journal/blog/california-bail-reform-where-are-we-now/ (May 9, 2022).

[10]Joshua Page & Christine S. Scott-Hayward, Bail and Pretrial Justice in the United States: A Field of Possibility, Annu. Rev. Criminol. 2022. 5:91–113. 91, 103 (2022).

[11] Carlos Ballesteros, There’s no ‘Purge Law’: Debunking right-wing propaganda about the SAFE-T Act, InjusticeWatch: News, Prisons and Jails (Sep. 15, 2022) https://www.injusticewatch.org/news/prisons-and-jails/2022/safe-t-act-purge-law-illinois-fact-check/.

[12] Nowicki, supra note 2.

[13] David Olson et al., Individuals Held in Pretrial Detention and Under Pretrial Supervision in the Community, Loy. Univ. Chicago Ctr. for Crim. Just. Research (June 18, 2022). https://loyolaccj.org/pfa/blog/pfa-jail.

[14] Nowicki, supra note 2.

[15] Id.

[16] Olson et al., supra note 14.

[17] Page & Hayward, supra note 11, at 101.

[18] Jessica Reichert & Alysson Gatens, An Examination of Illinois and National Pretrial Practices, Detention, and Reform Efforts, 5 (Illinois Criminal Justice Information Authority, June 7, 2018).

[19] Christopher T. Lowenkamp et al., The Hidden Costs of Pretrial Detention, 4 (Laura and John Arnold Foundation, 2013).

[20] Page & Hayward, supra note 11, at 103.

[21] Id.

[22] Will Dobbie & Crystal Yang, The Economic Costs of Pretrial Detention, Brookings Papers on Economic Activity (Mar. 24, 2021).

[23] Id.

[24] Professor, Department of Sociology, University of Minnesota

[25] Professor, School of Criminology, Criminal Justice, and Emergency Management, California State University, Long Beach

[26] Page & Hayward, supra note 11, at 106.

[27] Id. at 94.

[28] Id. at 98.

[29] Id. at 97–98.

[30] Id.

[31] Id. at 103.