When the Pretrial Fairness Act took effect in September, Illinois became the first state to completely eliminate cash bail. Advocates who championed the reform have regarded the victory with caution since the law first passed in 2021, wary that judges might simply replace pretrial detention with house arrest for those who would have walked free—without an ankle monitor.
But one month after the end of money bond, the number of people detained at Cook County Jail has fallen to a near-historic low, without any corresponding rise in electronic monitoring requirements for those awaiting trial.
Reform advocates are encouraged that judges so far have not widely imposed electronic monitoring as a condition for release now that bond is no longer an option. The absence of an uptick in electronic monitoring is a preview of what’s possible statewide as the Pretrial Fairness Act is implemented—but it is also a sign communities must remain vigilant to ensure courts don’t replace one form of incarceration with another, says Alexa Van Brunt, director of the MacArthur Justice Center’s Illinois office.
“What will this look like in a year? What happens when the political will sags, or there’s not as much attention on the issue? These are issues we have to be vigilant on,” Van Brunt says. “Historically when one form of incarceration is taken away, something else is put in place. Here, this very clearly will be electronic monitoring.”
The end of the cash bail system means that, after a judge has determined an individual is not a flight risk nor a threat to public safety, a person cannot be detained in jail before trial, regardless of their ability to pay bond. The month since reform took effect has seen a swift drop in the number of people incarcerated at the jail, the majority of whom have not yet been convicted of a crime. Fewer than 4,890 people were incarcerated at the jail as of October 20, not only down by more than 530 people since the law took effect but also one of the lowest populations at the jail in decades.
The only other time since the 1980s the jail population dropped below 5,000 was during the early stages of the coronavirus pandemic. As a series of deadly outbreaks ripped through the jail, the same advocates behind the Pretrial Fairness Act urged officials to free hundreds of people who had already been cleared for release by a judge—but only if they could afford bail.
This prior drop in the jail population, however, was accompanied by a massive surge in the use of electronic monitoring. By early 2021, at least 3,330 people awaiting trial were in the community corrections program, which uses electronic monitoring technology to restrict a person’s movement, an increase of at least 1,000 people from the year prior.
“There were people who, if they had the money, they would have gone home without condition,” says Matt McLoughlin, an organizer with the Illinois Network for Pretrial Justice. “But because they couldn’t pay bond, they were forced to use these devices.”
Credit: Pascal Sabino
Groups aligned with the Illinois Network for Pretrial Justice, a coalition that championed bond reform and is now monitoring the law’s implementation, aim to prevent the situation from repeating itself due to the severe consequences of electronic monitoring and home arrest.
Since Illinois eliminated money bond, the number of people on electronic monitoring in Cook County dipped slightly from 1,846 the day before the law took effect to 1,831 on October 20. But it is too early to tell how long the success will last, says James Kilgore, advocacy and outreach director for the First Followers reentry program.
“Electronic monitoring is a backlash tool that people who are against progressive changes to the legal system will take advantage of,” he says.
Those aiming to prevent electronic monitoring from expanding say the program is rife with issues, like false alarms, and has no proven benefit to public safety. The technology is overly restrictive and “introduces a whole other level of stressors that shouldn’t be there if you’ve been released pretrial,” says Kilgore, who previously spent a year on house arrest. “You’re responsible for all your living expenses but you can’t go to work. It creates even more financial problems for your family. We could be spending this money we’re using on technology to invest in programs that address the underlying causes of violence.”
Many officials statewide opposed the transition from cash bail, including some of the judges who will ultimately decide whether a person charged with a crime should be detained in jail as they await trial, released without conditions, or put on electronic monitoring. Finger-pointing from public officials and political pressure during perceived crime spikes may lead judges in the future to rely on electronic monitoring to insulate themselves from scrutiny, Kilgore says.
“You can’t really trust that they’re going to follow the law in good faith. One of the ways they could do this is by either detaining everybody and saying they’re a danger to the community, or by putting them all on electronic monitoring,” he says.
Chief Judge Timothy Evans says in a statement that the Cook County Circuit Court is working to comply with the bond reform law. Evans previously oversaw a similar reform effort in 2017 that banned judges from imposing unaffordable bond amounts.
“The judges and staff of the Circuit Court of Cook County are fully prepared to fairly implement the requirements of the Pretrial Fairness Act . . . to follow the law and both ensure justice for the accused and promote safety in the community,” Evans says.
Those monitoring the bond reform rollout must be wary of reactionary swings that embolden “tough-on-crime” voices, like those that followed widespread protests against the police killings of George Floyd and Breonna Taylor, Kilgore says.
Legal defense organizations are running court-watching programs to monitor judges’ pretrial release decisions and to collect data on whether judges are fairly implementing the law in Cook County and across the state. But for long-term success in safely curbing pretrial incarceration and electronic monitoring, local and state authorities must take the lead on court accountability, Kilgore says.
“This is a honeymoon period. That’s when the positive energy is still here for people to make sure this law becomes reality. But will local authorities put in place structures in the long run to guarantee we have the data to see that this is being implemented correctly?” Kilgore says.
Court watchers working with the MacArthur Justice Center are tracking the types of evidence used to back decisions on pretrial detention and electronic monitoring, Van Brunt says. “There’s a very clear burden of proof that has to be met to keep people detained. We want to see if the state is actually meeting that burden with the necessary evidence,” she says.
On top of court watching, the organization is creating legal templates that will make it easy for defense attorneys to challenge unnecessary electronic monitoring requirements at their clients’ initial court hearings.
“We want to provide resources to make it easy for people to go into court to challenge their electronic monitoring conditions, to challenge their lack of movement, and to really undercut the idea that electronic monitoring is a natural backstop to pretrial release,” Van Brunt says.
A study on electronic monitoring by Chicago Appleseed Center for Fair Courts, conducted on behalf of the Cook County Justice Advisory Council, found that electronic monitoring is used locally far more than in any other major city nationwide. The study found no evidence to suggest that electronic monitoring affects public safety or court appearance rates, and suggested the use of house arrest be dramatically reduced.
“It would be a grave injustice if judges swapped making people pay to get out of jail with saddling people with technology like electronic monitoring,” McLoughlin says. “It makes it incredibly difficult to do basic things like taking out the garbage, applying to jobs, going grocery shopping, going to the laundromat.”
