When Illinois became the first state to pass a bill that will completely eliminate money bail, this history-making moment was the result of more than five years of community organizing, policy advocacy, litigation, electoral campaigns, lobbying, and street protests. In Illinois, hundreds of thousands of people who are presumed innocent are booked into the state’s 92 county jails annually just because they cannot afford to pay a money bail. The Pretrial Fairness Act, which the governor signed into law in February, will end this practice. The work leading up to its passage was led by the Coalition to End Money Bond and the Illinois Network for Pretrial Justice — and deeply influenced by larger political moments and social movements.
Our campaign to end money bail in Illinois highlighted for many around the country what the power of community organizing — and coalitions — can be and why both are essential to building meaningful, durable change. It also demonstrates how abolitionist analyses and vision, which have a long history of resisting “reformist reforms” that merely legitimize and entrench carceral practices and institutions, can build incremental and pragmatic campaigns chipping away at current systems of control, isolation, and punishment. This is particularly important when it comes to bail reform, since the spectrum of advocates engaged in this work — and thus the range of our goals — is so broad. Just recently, a new guide that assesses different pretrial reforms through an abolitionist lens was released to capture some of these differences —and to highlight the importance of having a bold, clear vision for change when developing specific policy demands.
I was involved in the Illinois campaign from the beginning as a lawyer with a policy focus as well as an organizer; while the organizing component has been publicly written about, the wonkier but no less critical policy advocacy has not. I have been supporting grassroots abolitionist campaigns in Chicago for the last eight years. That organizing regularly intersects with policy advocacy — and did so in a uniquely important way in Illinois this year — yet those intersections have been underexplored.
Abolitionist analyses and vision, which have a long history of resisting ‘reformist reforms’ that merely legitimize and entrench carceral practices and institutions, can build incremental and pragmatic campaigns chipping away at current systems of control, isolation, and punishment.
I’d like to share what the passage of the Pretrial Fairness Act taught us in Illinois about strategies for policy advocacy as part of multi-faceted coalition work — and how organizing is essential to winning lasting, transformative, decarceral change. I will highlight three key lessons we have learned through our campaign: (1) policymaking is about power, not just textual changes to the law; (2) clear vision and bright-line rules must guide the work; and (3) attaining power doesn’t mean you can have it all.
Policymaking Is About Power, Not Just Textual Changes to the Law
Long before the Pretrial Fairness Act, existing Illinois law already instructed judges to treat money bail as a measure of last resort and encouraged them to release people without payment unless there was no other way to ensure their return to court. If a judge did impose money bail, the law required the amount be affordable. In short, Illinois law was already supposed to prohibit wealth-based pretrial incarceration — but the law wasn’t being followed.
Because of this, the Pretrial Fairness Act was not our first attempt to change the approach to pretrial detention in Illinois. It was our third. The first two efforts, however — adoption of a local court rule and the subsequent push for a statewide version of the same — did not accomplish all that we hoped. But we learned powerful lessons along the way, and our movement grew stronger.
Take our first effort. Early on in our campaign to end money bail in Cook County, we realized what a dramatic difference judges simply following existing state law and constitutional protections could make, so we tried to enforce those standards through organizing and litigation. In 2017, the Coalition to End Money Bond succeeded in pressuring Cook County’s chief judge to adopt a local court rule that reduced the use of money bail by 50 percent. This policy change created, on paper, a process for judges to follow existing law. As a result, the number of people in Cook County Jail per day — the majority of whom had historically been incarcerated due solely to inability to pay a money bond — decreased by 1,500 within three months and has stayed at almost 2,000 fewer people for four years.
That decarceration didn’t happen simply because of the rule, though; the rule was merely a process-based reform. When the chief judge unveiled the rule in 2017, it became evident to us that he was trying to undermine an ongoing civil rights lawsuit against himself and the judges under his supervision who set unaffordable money bails — and, in the process, seeking to regain some of the legitimacy the courts lost over the course of the Black Lives Matter movement’s successful organizing since 2014. That organizing had a number of earlier milestones that focused attention on pretrial justice: Local efforts to unseat a notoriously punitive prosecutor, in part because of her use of money bail, and support for a reform prosecutor who campaigned on ending it; the formation of the Coalition to End Money Bond in Cook County in 2016; and the growing national movement to end money bail.
When the new court rule took effect, the Coalition to End Money Bond trained courtwatchers to monitor its implementation and released regular reports on its impact. Ultimately, the court rule changed judicial behavior only because pressure from community organizing, litigation, and the larger Black Lives Matter movement succeeded in creating the political will needed to enforce existing law. The dramatic transformation in bail-setting practices we achieved in Cook County happened through movement building and shifting political pressure towards pretrial release; all of this revealed to us how much of policymaking is about power rather than mere textual changes to the law.
2) Be Guided by a Clear Vision — and Use Bright-Line Rules
Despite the success of the 2017 reforms in Cook County and the fact that thousands fewer people were being jailed, thousands of people were still incarcerated solely because they could not afford to pay a money bail. The use of money bail had decreased, but it was still being misused by judges to wrongly incarcerate people based on their access to wealth. It became increasingly clear to the Coalition that a more binding, statewide policy change was needed, and that we needed to expand our base beyond the Chicago region. In 2019, the Coalition joined with organizations and people across the state to launch the Illinois Network for Pretrial Justice.
Following an arduous but disappointing effort to strengthen and expand affordability mandates through the Illinois Supreme Court, the Coalition and Network saw clearly that statewide legislation completely eliminating money bail was our best opportunity. Our policy experts revised and strengthened an earlier piece of legislation we had first introduced in 2017, and it was renamed the Pretrial Fairness Act. We worked in partnership with organizing members to thoughtfully compose legislation that had a clear vision, that looked ahead to potential issues and unintended consequences, and that reflected the required, nuanced understanding of the criminal legal system’s daily functioning. Many of us were lawyers and several had been criminal defense attorneys. We had seen countless examples of judges going through the motions of holding hearings or proffering legal justifications while ignoring the spirit of protections for accused people. We also knew from our experience fighting for the local rule change that process-based protections could easily turn into rote recitations of scripted language by judges — this was how unaffordable money bails continued to be imposed in Cook County after the local rule and despite state law.
So we focused instead on creating bright-line rules that took away carceral tools from judges instead of trusting them to use such tools sparingly.
For example, we focused on eliminating all forms of secured and unsecured money bail instead of retaining money bail as an option for “exceptional cases” and seeking to limit it to affordable amounts — as many system actors wanted. Our theory as organizers and advocates in the movement to end money bail has always been that without unaffordable money bail to cage people, prosecutors and courts will have less of an ability to jail people outright. Prosecutors will have less power to coerce pleas and force people to give up their rights. Ultimately, when the state is deprived of power, some of that power is restored to accused people. In other words, we stayed focused on our movement’s final goal and refused to leave room for exceptions that would undermine it.
Foremost in our minds was a mandate to decrease the state’s power to cage, control, or surveil people. This meant we were proposing the end of money bail and additions of new protections for accused people without any increases in preventive detention power, presumptions of detention, or any other weakening of existing bail laws. In revising and negotiating the legislation, we also committed to avoiding any “carveouts,” which exclude certain people from reforms. For example, money bail could be eliminated except for certain groups, such as people who have been previously convicted or people with certain types of charges. Carveouts almost always leave behind people who already bear the brunt of our criminal punishment system’s power. Our goal was to pass legislation that applied a higher standard for detention orders — really, the constitutional bare minimum — to everyone, regardless of charge or background.
Simultaneously, we wanted to limit contact with the system as much as possible, either preventing arrest entirely or ensuring release as soon as possible after arrest. To achieve that goal, we thought about the bill as creating “off-ramps” for as many people as possible as early in the process as possible. We could (and did), for example, include a requirement that police issue citations instead of arresting people for petty offenses and ordinance violations. That simply was not yet a possibility for people accused of more serious charges — a political reality we were aware of — but it did not make sense not to do it for the people we could prevent from being arrested. With this philosophy, we mandated citations-in-lieu-of-arrest for these nonserious charges that, under current law, can result in arrest and detention for up to two days until a judge is available to order someone released. We also expanded a current law that allows release of people accused of most misdemeanors directly from police custody after a custodial arrest. In Chicago, this policy results in many people being released four to eight hours after their arrest regardless of the time of day, compared to up to 48 hours later for people who are sent before a judge for a bail hearing.
For people who must appear in court under the new system, we excluded the majority of arrested people from the possibility of initial detention orders by creating a “detention eligibility net.” In Illinois right now, everyone who is arrested on any charge, no matter how minor, can be jailed pretrial. The Pretrial Fairness Act reduces the state’s detention power by limiting eligibility to people accused of more serious felonies and misdemeanor domestic battery.
Finally, we also know that standards can matter. So we did everything in our power to raise the initial standard for detention and make it as hard as possible for the state to take away someone’s freedom. This includes requiring judges to find by clear and convincing evidence the need to detain someone in written findings; defining public safety concerns in relation to specific threats to an individual and not a general threat to the community; mandating reviews of detention orders; and replacing a past focus on mere failures to appear in court with a new standard for “willful flight.”
These were the parts of the bill that we viewed as essential to our goal of reducing pretrial jailing, not merely eliminating money bail. Throughout this crafting process, we remained focused on reducing incarceration and surveillance, which offered clarity as legislative drafting questions arose. We crafted our ideal bill while still expecting to have to negotiate changes, but we were clear on our intent and our goals — and on what our communities needed and wanted.
3) Attaining Power Doesn’t Mean You Can Have It All
There were, of course, also areas where we did not yet have enough power to ban certain carceral tools outright. For example, criminal legal system stakeholders and legislators are deeply committed to the use of risk assessment tools, and it simply wasn’t possible to pass a bill that banned their use (which was already authorized under Illinois law). Unable to eliminate these tools, we sought to reduce the harm they cause as much as possible, within our power and the current political reality.
On issues such as electronic monitoring and risk assessment tools, we restricted some of their worst uses and ensured better treatment for people subject to them. Under the Pretrial Fairness Act, people subject to overnight curfews and other home detention are guaranteed credit towards any future sentences, acknowledging the severe restrictions of liberty they experience. We also made certain conditions of pretrial release discretionary instead of mandatory and gave judges the option to not issue warrants immediately upon a missed court date — but we were unable to eliminate either practice. Those reforms do not go as far as we wanted, but they take away some power and prevent some harmful practices from continuing unchecked.
The goal of abolition, for those of us who seek it, requires that we do as much as possible to shrink the system now, even while we don’t yet have the power to completely end it. And so to win as much as possible, our legislative strategy was to ask for what we wanted and decline to negotiate with ourselves. Even then, areas in the bill fell short because we failed to imagine the extent of what was possible. For example, our draft bill changed pretrial fees from mandatory to permissive when we should have tried to eliminate fees entirely.
Ultimately, we ended up having to give up much less from our model bill than we expected. The Black Lives Matter uprisings in summer 2020 across the United States — even in small towns in conservative parts of Illinois — created immense pressure on the state legislature to address issues of racial justice and criminal legal system reform. Our Coalition and Network seized the momentum and energy of last summer and fall and broadened support for the Pretrial Fairness Act. The protests completely changed the context of our advocacy and opened up new possibilities for transformative change, as thousands of new people were mobilized to act for racial justice and joined our campaign.
In January 2021, the Pretrial Fairness Act was included almost as written in the Illinois Legislative Black Caucus’s larger package of criminal legal system reforms designed in explicit response to the 2020 rebellions. Our many years of diligent and focused organizing combined with the seismic shift in public consciousness to make ending money bail a central and popular feature of the legislature’s response to the larger movement’s demands for systemic change.
A few years ago at a conference, I heard what is now one of my favorite maxims about policy advocacy: “Lawyers advise based on what’s possible; organizers change what’s possible.” The impossibility of predicting the summer 2020 uprisings and corresponding shift in public focus on racial justice should be a source of humility for professional policy advocates, who are disproportionately lawyers and people working on “inside game” strategies.
If there is one overarching lesson in what we accomplished in Illinois, it is this: Attorneys and other professional advocates must take seriously the “unrealistic” goals of organizers and work in partnership to achieve them. When the Coalition to End Money Bond launched in 2016, the goal of ending money bail was considered unrealistic by nearly every policymaker we approached. We were told to consider alternative or partial approaches based on what felt achievable, and we declined. Instead, we worked to make that goal possible by building power and shifting public consciousness over the course of years and as part of a growing movement.
If there is one overarching lesson in what we accomplished in Illinois, it is this: Attorneys and other professional advocates must take seriously the 'unrealistic' goals of organizers and work in partnership to achieve them.
Simultaneously, we must also recognize with humility the impact of the uprisings and similar factors beyond our control that are impossible to predict. Even with our campaign’s hard-won progress, it was ultimately the street protests and property destruction of last summer that created the conditions for our bill to pass in such a complete and transformative form. This should teach professional advocates to embrace the possibilities opened up by the Black Lives Matter movement and the increasingly mainstream discussion of abolishing the prison industrial complex.
The story of how ending money bail in Illinois went from a radical grassroots demand to a nationally praised law in under five years is an example of how strategic organizing makes the impossible irresistible through building power on behalf of impacted communities. We hope the changes we won, and those we left on the table, set a new floor rather than a new ceiling in the national movement to free our people.
Image: Unsplash
