Should cash bail be eliminated? The practice of allowing a person who has been arrested to pay money to be released from jail before their trial or hearing has long been controversial.

Lately, it has become a point of sharp political contention. Republicans are pushing to enact reforms that would make it more difficult for defendants to get out of jail while waiting trial, arguing that such reforms would help keep criminals off the streets. Democrats have countered that the practice of cash bail release is inherently unfair, and could violate people’s civil rights.

On Jan. 1, Illinois became the first state to do away with cash bail completely, allowing defendants to leave jail and await trial without paying any money, and others may follow. What are the benefits and drawbacks of ending the practice?

PRO: ENDING CASH BAIL WOULD BENEFIT PEOPLE OF COLOR AND POOR COMMUNITIES

Cash bail is “unfair, unjust, and it disproportionately hurts communities of color and poor communities,” Maggie Germano writes for Forbes. Indeed, “communities of color are actually over-policed,” which leads to increased arrests, Civil Rights Corps‘ Katherine Hubbard told Germano. As a result, “bail often has nothing to do with the crime you’re accused of, and certainly doesn’t depend on how much you can afford to pay.” “You’ll have cases where a wealthy person can go free, but an innocent, poor person could not, and that’s not justice,” said Illinois state Sen. Elgie Sims Jr. People also “commonly plead guilty to crimes that they didn’t commit” because they don’t want to “spend weeks or months in jail waiting for trial” after not meeting bail, Will Snowden, the New Orleans director of the Vera Institute of Justice, noted in a separate Forbes column.

CON: IT COULD LET CRIMINALS ROAM FREE

Ending cash bail and allowing defendants to leave jail without paying any money “will have serious ramifications for law-abiding citizens and give drug cartels free rein on Illinois’ streets,” former Illinois state Rep. Jim Durkin wrote for the Chicago Tribune. Because defendants will only be detained pre-trial if they face non-probational felonies, the change is a “slap in the face to victims and neighborhoods desperately seeking safety.”

PRO: IT DOES NOT LEAD TO AN UPTICK IN CRIME

Despite Republican assertions, “there is no evidence linking cash bail reform to high crime rates,” Allie Preston and Rachel Eisenberg wrote for the Center for American Progress. On the contrary, in areas where bail reforms have already been implemented, “those who await their trial in the community are no more likely to be re-arrested after bail reform was passed than before,” the pair added. For example, in New Mexico and Yakima County, Washington, a larger percentage of people completed the pretrial process without a new arrest after cash bail reform was implemented, according to Prison Policy Initiative. Making defendants pay bail to be released also does not “lower homicide rates,” attorney Trisha Triglio argued for the ACLU, noting that many areas that rely on cash bail have some of the country’s highest murder rates.

CON: ENDING CASH BAIL IGNORES THE ROOT OF THE PROBLEM

An Illinois Supreme Court commission that studied cash bail in 2020 found that “simply eliminating cash bail at the outset, without first implementing meaningful reforms and dedicating adequate resources to allow evidence-based risk assessment and supervision, would be premature.” Separately, Illinois’ Brown County State’s Attorney Mike Hill, Sheriff Justin Oliver, and Mount Sterling Police Chief Brandon Norris told the Jacksonville Journal-Courier that while bail shouldn’t depend on someone’s ability to pay, eliminating the practice was “never the answer.”

PRO: IT WOULD CORRECT A DUE PROCESS VIOLATION

The ACLU has alleged that cash bail is actually unconstitutional because it violates “due process and equal protection under the 14th Amendment, the prohibition against excessive bail found in the Eighth Amendment, and the right to a speedy trial guaranteed by the Sixth Amendment.” Indeed, said Constitutional Accountability Center President Elizabeth Wydra, bail was never “intended to keep the accused locked up until trial.” This violates the principle of “innocent until proven guilty,” and should not be allowed. 

CON: CASH BAIL REFORM WOULD LIMIT JUDGES’ PURVIEW

Judges are often the ones who decide the amount of someone’s bond, and they “typically have broad discretion to raise or lower” the defendant’s amount, the Brennan Center for Justice notes. A judge could even decide to cancel someone’s bail entirely and remand them to custody, or release them on their own recognizance by waiving their bail. Justia adds that while the “Eighth Amendment to the U.S. Constitution prohibits ‘excessive bail,” it “does not state that courts are required to allow bail.” Ending cash bail could put a dampener on the ability of judges to make informed decisions about defendants.