Oct 5, 2022 - News

How IL bail reform might rein in courtroom racism

Illustration of a silhouetted scales of justice, with the plates moving up and down.

Illustration: Brendan Lynch/Axios

On day three of our cash bail series, we're looking at how Illinois' bail reform may affect racial disparities in the corrections system.

What's happening: Advocates of the state's Pretrial Fairness Act (PFA) say one aim of the law is to reduce the disproportionate number of people of color in jail.

  • But Republican Attorney General candidate Thomas DeVore thinks the measure will actually create more opportunities for racially biased jailing.

How it works: Under current bail rules, defendants charged with certain crimes can usually go home while they await trial, provided they pay bail.

  • Under the PFA, a judge will decide a defendant's freedom based on a hearing that considers the alleged offense, potential danger to others and flight risk.

What they're saying: "This will result in discriminatory practices, keeping Black men and other minorities in jail when they could have otherwise been granted bond," DeVore's office wrote about the PFA.

The other side: "This is a cynical, red herring argument" that people already invested in the system have invoked to block previous reforms, Fiona Ortiz of the Cook County public defender's office tells Axios.

  • She acknowledges racial bias in the wider court system but says "money bail in particular results in racial disparities, with Black people receiving higher bail amounts and being less likely to pay them."

The data: Multiple analyses have shown disproportionately high numbers of Black and brown defendants in jail.

  • And bail reform has not reduced those disparities as much as advocates in states such as New Jersey and Kentucky had hoped.
  • "Judges are human beings, and they also are using criminal justice inputs that are oftentimes very racially skewed," the ACLU's New Jersey attorney and former public defender Alex Shalom tells Axios.

Yes, but: "The preservation of the deeply racist and flawed cash bail system is not the answer," Shalom says.

  • Instead he says more transparency and reducing the number of people eligible for jail are ways we can limit the impact of racism.
  • Some courts also use risk-assessment algorithms to decide detention — with mixed results.

The bottom line: DeVore isn't wrong that humans have and may continue to show racial bias in detention decisions.

  • But supporters of the PFA believe the requirement for hearings in which a judge must publicly state why someone should be jailed based on evidence could improve outcomes.

Check out the rest of our stories in this series:


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