End of cash bail next week could spark more electronic monitoring, bail reform supporters fear

When Illinois next week becomes the first U.S. state to abolish cash bail, it could set off a surge in electronic monitoring.

That’s the concern of some of the bail reform law’s most fervent supporters, who say judges skittish about releasing pretrial defendants without monetary bond could turn to electronic monitoring as a substitute.

Starting Monday, judges will no longer be allowed to order people accused of crimes to put up bail money to get out of jail while waiting for their trial. Instead, judges will be able to keep a defendant locked up only if they believe the person poses a safety risk or is likely to flee.

“When we’re getting rid of a system that has been in place for decades, judges feel nervous about releasing people who previously they released with cash bail, and that may cause them to turn to electronic monitoring if it’s available,” said Sarah Staudt, an attorney with the Illinois Network for Pretrial Justice, which helped forge the bail measure. “That’s not good practice, because it doesn’t align with the research. Cash bail didn’t work. Electronic monitoring doesn’t work, either.”

The concerns of Staudt and her fellow advocates have been fueled by an Illinois agency’s announcement last month that it was rolling out an electronic monitoring program covering most of the state. But the official in charge insisted her program is not promoting electronic monitoring.

Electronic monitoring first became commercially available in 1984 as an alternative to detention for people convicted of a crime. Since then, electronic monitoring has been ordered increasingly for people who are awaiting trial. One of the first U.S. jurisdictions to use the technology pretrial was Lake County, Illinois, which spans suburbs north of Chicago. Today, nearly three of four jurisdictions across the country include electronic monitoring as a pretrial release option.

But a bevy of research raises doubts about electronic monitoring’s efficacy. A study of federal pretrial defendants in New Jersey found no difference in failure to appear between defendants who were on electronic monitoring and those who were not. Another study, focused on four jurisdictions, found that electronic monitoring had “little impact on pretrial misconduct,” including new criminal activity.

Among cash bail opponents, some alarm focuses on Cook County, where judges have already ordered tens of thousands of people onto electronic monitoring over the years. An electronic monitoring program run by Sheriff Tom Dart’s office had 1,871 defendants as of Tuesday. Separate electronic monitoring programs under Cook County Circuit Chief Judge Timothy Evans totaled 1,675 defendants as of Aug. 25.

“We are here to put Cook County judges on notice that electronic monitoring is not a substitute for money bond,” Daryle Brown of Trinity United Church of Christ, a South Side congregation, said in a statement Tuesday. Brown pointed to a study commissioned by Cook County Board President Toni Preckwinkle’s office that recommended reducing use of electronic monitoring.

Statewide electronic monitoring

Bail reform advocates are also voicing concerns about the Office of Statewide Pretrial Services, a new agency created by the Illinois Supreme Court. Cara Smith, the office’s director, announced in August that her office was assuming responsibility for electronic monitoring in 70 of the state’s 102 counties. Her announcement talked up electronic monitoring as “a tool to reduce jail populations, including during the COVID-19 pandemic, as well as to monitor domestic violence and other high-risk offenders.”

As of this week, those 70 counties have about 100 individuals on electronic monitoring, Smith told WBEZ.

Smith’s announcement tied the electronic monitoring effort to Monday, when cash bail ends: “By September 18th, active GPS electronic monitoring will be available to all OSPS counties at no cost to the county and at no cost to the defendant.”

But Smith said the timing does not mean her office is urging judges to order electronic monitoring as a substitute for cash bail.

“It couldn’t be farther from the truth,” Smith said. “We are working to try to serve the counties whom we serve as their pretrial agency and have been working virtually around the clock to transition those existing cases over.”

Smith said that the law eliminating cash bail also limits electronic monitoring use, requiring judges to apply “the least restrictive conditions” necessary to ensure the defendant appears at hearings and “to protect an identifiable person or persons from imminent threat of physical harm.”

Smith also told WBEZ her office is picking up a 71st jurisdiction — suburban Will County, southwest of Chicago.

Electronic monitoring, Smith said, “remains a viable condition that a court can impose under the law. So it’s available.”

“We are not encouraging its use. We are simply — it is available to a court should they wish to impose it and they make the requisite findings,” Smith said.

None of that satisfies bail reform advocates, who are bracing for an increase in electronic monitoring like one that followed a 2017 order reducing the use of cash bail in Cook County.

“There’s a real concern about judges using the technology out of a misunderstanding of its efficacy,” Staudt said. “The expansion of electronic monitoring to all of these counties increases those concerns.”