Illinois has become the first state to abolish cash bail, a move that some legal experts say will have very different ramifications in rural areas than in Chicago. 

The Pretrial Fairness Act became law on Monday Sept. 18, after nearly three years of political battles in the Illinois state legislature.

The equity-based legislation, also known as the SAFE-T Act, was pushed by the Illinois Legislative Black Caucus aiming to reform the criminal justice system in Illinois in the wake of nationwide protests in 2020 over injustices faced by Black Americans and systemic inequality. 

Criminal justice reform advocates fought for the legislation on the premise that a citizen’s ability to post bail is not conducive to the danger they pose to society. While some offenders can buy their way out, even if awaiting trial for high-level crimes, others are left in jail for weeks because they cannot afford to post bail, even though they are not yet charged with a crime. 

“It’s better for people who are low-income offenders who commit non-dangerous crimes and were in jail, only because they couldn’t afford bail,” said Dylan Sharkey, an assistant editor at the Illinois Policy Institute. “[If] in there long enough, they can lose their job, lose their house, which would make them more likely to commit a crime and recidivism.”

About two weeks after the elimination of cash bail, some Illinois counties are grappling with meeting the demands of the new legislation due to a lack of resources in rural areas.

David Olson, a criminology professor at Loyola University Chicago, said while Cook County quickly embraced the new law, more rural jurisdictions are struggling to staff courtrooms on a daily basis or can’t find a public defender to represent those arrested. 

“The degree to which it’s implemented as intended will likely vary from community to community,” Olson said, who currently serves on the Illinois Supreme Court Pretrial Implementation Task Force.

Cook County is just one of 102 counties in Illinois and according to Olson, the availability of resources differs significantly from one county to another. He said many jurisdictions do not hold criminal court every day. Some counties only have one public defender’s office, and most lack electronic monitoring capabilities, making it challenging to meet the expectations of the law. 

According to the Chicago Appleseed Center for Fair Courts, a nonprofit organization dedicated to promoting equity in Chicago courts, Cook County employs over 500 public defenders and 171 additional support staff to assist attorneys with trial preparation. In rural areas, the Illinois Criminal Justice Information Authority (ICJIA) has found that counties with a population of less than 35,000 are not required to have a public defender’s office and may provide counsel any way they choose. 

Illinois demographic data shows 61 of the 102 counties have a population of less than 35,000. Fifty of those counties have less than 25,000 residents. 

Olson said that in some cases, the judge subs in for the defense attorney if one cannot be present for the hearing to protect the defendant’s rights.

“The law says that we have to have a detention hearing in person with a public defender appointed within a certain number of hours of the person being arrested,” Olson said. “And that’s not something they’ve normally done.”

Olson said pretrial practices started changing in Cook County years ago because of efforts to reduce the increasing jail population in the county. 

Additionally, Cook County previously modified bail policies so that it could not keep more than $100 of the funds the defendant posted for their bond. In more rural counties, courts can keep 10% of the deposited bond amount plus any additional fines or fees deducted from the bond total. Olson said in these counties, there is a heavy reliance on income provided by cash bonds and losing this funding will have a substantial financial impact. 

In rural counties, the pretrial detention rate is high, causing many to oppose the legislation. Between 1970 and 2013, pretrial detention in rural counties increased 436% across the U.S., according to the ICJIA. 

Olson said many view the law as a way to address Chicago’s problems.

“We don’t have the same problems as Chicago,” Olson said. 

Still, despite the challenges to rural counties, efforts are underway to assist low-population communities in carrying out the new law. 

A communications representative for the Office of Statewide Pretrial Services (OSPS), Christopher Bonjean, said the Illinois Supreme Court created the OSPS to assist counties that lack pretrial agencies. The OSPS currently operates in 71 of the 102 Illinois counties. 

To help alleviate the challenges rural jurisdictions face when implementing the new law, the Illinois Supreme Court is preparing to allocate $10 million from the Public Defender Fund to 101 Illinois counties — Cook County excluded — for public defenders and public defender services, Bonjean said. 

Because of the new law, state lawmakers also worked to amend or repeal many Supreme Court rules, including a change to allow video hearings in initial court appearances to assist rural counties.

Sharkey said many are eager to see how the elimination of cash bail unfolds and whether the landmark criminal justice reform law will influence change in the justice system.

“Anytime a state is the first to do something, there’s always going to be learning curves and things that you didn’t predict,” Sharkey said. “Nobody knows with absolute certainty what’s going to happen right now. It’s a waiting game.”