A Brief History Of The U.S. Cash Bail System: From Colonial Times To Present Day
by David Lewis
In a landmark court ruling in July 2023, Illinois became the first state in the country to abolish cash bail for pretrial release. The history of the country’s bail laws has its roots in English statutes and policies adopted during the colonial period, while calls for reform have existed for almost just as long. Over the decades, bail law has dramatically evolved, with some states now shifting to fairer systems that aren’t based on money.
The origins of cash bail
In the American colonies, the concept of bail initially involved “personal sureties” — relatives or friends of defendants eligible for release before trial would agree to pay a set amount if the defendant didn’t show up in court. It wasn’t until the 1800s that secured money bonds started to replace personal sureties; this involved self-pay, giving defendants a financial motive to appear in court. Yet, calls for bail reform arose as early as the 1920s, and only continued to grow throughout the 60s and 70s. Since only wealthy people could generally afford to pay their bail, the system disproportionately kept defendants on lower-incomes imprisoned before trial. The Bail Reform Act was also passed in 1984 in response to rising crime rates. It meant judges could detain defendants considered a flight risk or serious threat to public safety.
2010s: The bail-reform movement takes off
Around 500,000 innocent people await trial in prison everyday — mostly for low-level offenses — solely because they can’t afford to pay bail. Paying bail also usually puts defendants into debt, causing long-term financial hardship. Fortunately, a criminal defense lawyer can help defendants determine whether paying a bail bond is the right decision for their situation. To address the inherent inequalities in this two-tiered system, the push for bail reform took off in the 2010s as many states began looking for alternatives. In 2014, New Jersey shifted to a risk-based system. Judges now consider issues like threats to public safety and flight risk when deciding whether to detain a defendant before trial. Otherwise, they’re free to go, usually with certain conditions. Other states including Alaska and New York have implemented similar systems.
2023: Illinois becomes the first state to end cash bail
In July 2023, Illinois became the first state in the union to end cash bail entirely. Under the SAFE-T Act — which will take effect on September 18th — judges are no longer able to require defendants to pay bail for pretrial release. The court ultimately agreed that bail needn’t require money. There’s a myriad of other ways to ensure defendants show up at set hearing dates without mandating they pay for the freedom. Specifically, “courts will use a more equitable system where pre-trial detention is based on community risk rather than financial means," Gov. JB Pritzker's office states. So, if the defendant is considered a danger to the public or a flight risk, or if the crime is particularly serious, the judge may order them to be held in custody.
U.S. bail law has its roots in English statues and has drastically evolved since colonial times. Illinois is the first state to abolish cash bail, with other states also making positive changes to create a fairer system.