Ending Cash Bail Abolishes Penalty on Poverty, Advocates Say

NBC 5 News

An overhaul of Illinois’ approach to public safety, defending criminal defendants’ rights and keeping would-be rogue police officers in line won legislative approval in January and was lauded as a damaging blow to injustice in crime and punishment. Now it’s absorbing critics’ rebukes that it would make streets less safe, overburden police and drive dedicated professionals away from law enforcement careers.

A response to last spring’s civil unrest over the deaths of George Floyd, Breonna Taylor and other people of color by police, the plan would attempt to ease maneuvering of the court system for the disenfranchised and hold police officers responsible for their interaction with suspects by making use-of-force rules stricter and clearing the path for firing police officers for brutality or other crimes.

The criminal justice package, sponsored by Democratic Sen. Elgie Sims of Chicago, has not yet been sent to Gov. J.B. Pritzker, who says he supports it. It reflects one of “four pillars” battling systemic racism that the Illinois Legislative Black Caucus proposed last fall. Other legislation addresses education, economic opportunity and health care.

“We recognize that not one area or one bill can cure all these challenges we face,” Sims said. “If we fail in these other areas, which we have been doing consistently, those folks end up in the criminal justice system.”

Critics in law enforcement aren’t opposed to the concepts advanced. One legal official, Kim Foxx, state’s attorney for Cook County, has endorsed it. But many behind badges object to what they say are the bill’s contradictory language and expensive or impractical rules.

“We understand that reform is coming. We can be part of the problem or part of the solution,” said James Black, president of the Illinois Association of Chiefs of Police and chief in Crystal Lake. “As law enforcement executives, we want to be part of the solution. We want to build trust with our communities. But this bill has so many far-reaching issues that can be detrimental.”

A key provision of the legislation, which wouldn’t take effect until January 2023, eliminates cash bail, intended to ensure that defendants return to court if they’re set free awaiting trial. Opponents deride the time-honored practice as a penalty on poverty. They claim the poor and innocent must sit in jail awaiting their day in court while the wealthy and guilty go free. Jails are associated with law-breakers, but the liberal-leaning Center for American Progress notes that three of every five people locked up in the U.S. have not been convicted of a crime.

The Illinois Supreme Court Commission in Pretrial Practices, which strongly urged bail reform in its report last spring, found that a defendant who can’t afford bail sees his or her life unravel within days — loss of a job, loss of child custody, health problems without access to medication. What’s more, it tends to generate spurious plea deals. Someone charged with a crime, although innocent, can plead guilty to a lesser charge to get out of jail, having completed the sentence for the less-serious offense.

On the other hand, complains House Republican Leader Jim Durkin, a former prosecutor, “The elimination of cash bail basically says that we respect the honor system for violent criminals and gang members.”

The legislation grants defendants a “presumption of release.” A forcible felony is all but an immediate disqualifying condition, but it would up to the state to convince a judge in each case that defendants should be held before trial because they are flight risks or pose danger, Sims said. Judges would be hard-pressed to release “violent criminals and gang members” simply because the latest charge isn’t a forcible felony.

That kind of discretion was absent from New York’s bail-abolition law when adopted a year ago, forcing a revamp. Contrarily, California voters last November overturned a bail-elimination law, in part fearing judges would use too much discretion.

Will County State’s Attorney James Glasgow, president of the statewide association of prosecutors, said that the changes to bail are an example of the bill’s contradictory and confusing language by variously requiring pretrial incarceration for defendants who pose a threat to “any person,” “any person or the community,” and “any specifically identifiable person or persons.” Glasgow said the threat analysis judges in New Jersey use to rate the risk associated with release, which studies have praised, makes sense.

The Illinois plan intends to implement a version of that process.

“The way that we are revamping and modernizing the pretrial system, it gives the judge the ability to look at the person’s total record,” said Sims, whose legislation was sponsored in the House by Rep. Justin Slaughter, a Chicago Democrat who did not respond to requests for an interview.

Provisions to strengthen police accountability, from a statewide standard use-of-force rule to decertification, would undergo expansive changes, too, and to varying reviews. Choke-holds would be illegal — even when deadly force is warranted.

The legislation widens the chances of decertifying officers and rendering them unable to work for at least a year before reinstatement. Currently, it only happens with conviction of one of a certain number of crimes, which the bill expands. But it also authorizes state regulators to dismiss officers under certain circumstances and judges could recommend dismissal in cases where they see misconduct.

The proposal seeks to enhance accountability by requiring all police departments to equip their officers by 2025 with body cameras, nearly universally praised as a way to effectively record arrests and altercations, but an expensive one that police chief Black says many departments can’t afford. He likewise supports efforts to expand training and enhance involvement of mental health professionals to address incidents like the killing of Walter Wallace last fall in Philadelphia, but he objects to financing them with police department dollars, an action which would come under what reformers have called the movement to “defund the police”.

Glasgow contends that restrictions on the use of deadly force in the bill are so complex they put officers at risk, both physically and legally. Such risks are enough to dissuade qualified, young professionals from the field, said Joe Moon, an Illinois state trooper and local union president.

That would be especially true, Moon said, if the law retracts so-called qualified immunity, protection from lawsuits against cops causing injury or death while acting in good faith under badge. The legislation contemplated the move but opposition caused sponsors to shunt it to a task force for study.

Given the slim chance that they can generate a gubernatorial veto, Glasgow and others hope to use the two-year run-up to implementation to negotiate changes.

Sims said he’s willing to entertain input despite the “fear-mongering” spread by the critical groups who contend they were left out of discussions on the legislation and complain about its Senate approval just before dawn on Jan. 13, the last day of the previous legislative session

“That’s what’s the most disturbing about the discussion of the process,” Sims countered. “The bill passed when it did because we continued to negotiate (with those groups) until the very end.”

Copyright AP - Associated Press
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