Beyond Bars: A New Era of Criminal Justice Reform
November 2023 | Allison Hardy (Staff Writer & Editor) & Luke Slota (Executive Director)
Criminal justice reform is a long-standing, worldwide effort aiming to end harsh policies and racial inequities present in criminal justice systems. It is a multi-faceted fight for equality that tackles issues inside and outside the courtroom, applying to individuals in pretrial detention, defendants in the courtroom, and even those convicted who are striving to rebuild their lives after navigating the challenges from their criminal record. In 2023, multiple states furthered the fight for racial equality in the criminal justice system by implementing various policies, many of which were the first of their kind to pave the way for future reform in other states. [1] Most notably, two states, Illinois and Texas, have implemented progressive reforms, cash bail and record expungement, respectively, that pose benefits and challenges. Although substantively different, both areas of reform are aimed at reducing tools of discrimination that severely prejudice individuals who fall into low-income and/or minority groups by enhancing their ability to return to their community, build support networks, and increase employment opportunities.
Elimination of Cash Bail
The cash bail system present today emerged from two waves of cash bail reforms in the middle of the 20th century that emphasized the importance of public safety. It allows defendants to pay a set amount, determined by the judge, to avoid pretrial detention and allows them to receive the money once the legal proceeding is completed, ultimately incentivizing appearing in court rather than fleeing. [2] However, racial justice reform has committed to starting a third wave of cash bail reform aimed at solving racial injustices from the retribution approach as a majority of those who can not afford cash bail are minority groups, and are effectively kept behind bars. [3] For example, many states like New Jersey have already made reforms to cash bail, not a complete abolition, and have seen considerable success on all fronts. Before cash bail reform, New Jersey had a massive pretrial population as 75% of the 15,000 incarcerated were awaiting trial or sentencing, unable to afford bail. With cash bail reform in effect, between 2015 and 2022, there was a steady decrease in people behind bars, with a total 20% decrease in pretrial detention. On top of this, it has saved tens of millions of dollars in New Jersey’s expenditure as mass incarceration continues to eat up taxpayer dollars with each individual kept behind bars.
New Jersey’s cash bail reform serves as a strong case study to open the discussion for future states to take the next step and eliminate cash bail. For example, at the beginning of 2023, Illinois took a progressive step in pretrial detention by implementing the SAFE-T Act, marking a historic departure from the traditional cash bail system and shifting towards a fully risk-based system, effectively eliminating cash bail. Now, under Illinois’ system, judges have primary discretion on who will be detained before trial, which resorts to house arrest and less restrictive measures for anyone else not detained. Their case predicates release or detention based on the state’s burden to prove that the defendant "poses a specific, real and present threat to a person, or has a high likelihood of flight."[4]Various factors will be taken into consideration, such as past criminal history and the nature of the offense. [5] Such criteria already determines cases including felonies such as murder or sexual assault, but make it extremely difficult for individuals with low-level offenses to be detained.
Illinois’ system represents a significant advancement in racial justice reform. More than half of the defendants in jail are eligible for cash bail but can not afford it, a majority of whom are part of minority communities and only face low-level offenses. Cash bail can be a tool of racial discrimination against minorities and a mechanism to perpetuate biases, as it can be misused by prosecutors, judges, or even detectives lacking investigative evidence . For minority communities, the impact is as severe as prolonged incarceration, which can last for years, disrupting lives by causing individuals to lose access to critical support networks, hurting employment and those reliant on one’s employment, and reducing the capacity to enjoy life. The choice facing those who can afford to pay the cash bail is no less severe as those individuals who face a double-bind: either suffer a loss of liberation or pay for liberation and lose hard-earned money that goes into surviving week to week. [6] Regardless, cash bail disproportionately affects minority communities and the elimination of cash bail in Illinois opens the doors for people behind bars to go home and continue to provide for their family.
While Illinois’ system is lauded for its benefits, the elimination of the cash bail system poses unique challenges as lawmakers rely on predictions rather than any truly proven outcomes. For example, since the cash bail system naturally puts fewer people behind bars and out in the community, concerns about public safety have begun. Although severe offenders will still be incarcerated, judges are not infallible in other cases, and currently-charged people may commit similar or even more serious offenses. However, previous research on reforms of cash bail, such as in New York and New Jersey, indicates that there is no strong correlation between the reduction of cash bail and crime in those respective communities. [7] Along with this, under a cash bail system, many people who pose a threat to safety could go free if they had enough money to post bail, which is far less likely under a judge’s discretion.
Among concerns about public safety, many people in the legal sphere hold doubts about its effects on court clog and the speed at which trials move. Already, court clog is an existing issue where it can take years for cases to get off the desks of prosecutors. However, under cash bail elimination, this issue could be exacerbated; showing up to the trial was incentivized since the funds would be returned upon successful legal completion. But under cash bail elimination, there serves no incentive to return for trial, potentially causing many arrestees to not show up to trial and affect the efficiency and speed of the legal system as a whole, limiting the distribution of justice and the right to a speedy trial.
Record Expungement
While acknowledging legal system challenges, states such as Texas are actively pursuing justice reform to provide their community with improved and more equal opportunities. Texas was the first state to pave the way for individuals to expunge or seal their criminal records through a nondisclosure order. This not only marked a pivotal change within Texas, but also created a model for others to fight for nationwide reformation in their state or around the country. This Texas law aims to offer a lifeline to millions who have past legal infractions, especially small ones. Chapter 55 of the Texas Code of Criminal Procedure states specific timeframes, outlining the waiting period in which residents can expunge or seal their criminal records based on the severity of the offense. [8] This requirement presents residents with a renewed opportunity for societal reintegration after completing their time for crimes committed. By granting eligible individuals a chance to change their lives, this legal recourse becomes a catalyst for employment prospects, enabling them to reclaim their lives outside of their criminal past. The Texas State Bar states the significance of expunction by highlighting the pivotal distinction it creates in removing the arrest, charge, or conviction from a permanent record. [9] This outlook on expunction speaks volumes about the need for reformation and societal reintegration beyond punitive measures in the justice system.
“People can change," bill sponsor Assemblywoman Catalina Cruz, a Democrat who represents the Queens borough of New York City, said on the Assembly floor. "People can get better. People can repent. People can be forgiven. Our society should not be judged on the behavior of one member at its worst moment but on our ability to forgive them and to grant them the ability to move forward and heal and to become productive members of our society.” [10] Assemblywoman Catalina Cruz's statement echoes the fundamental essence of this reformative approach by stating the importance of allowing individuals the chance to change, prove themselves, and contribute meaningfully to society.
In 2023, Congress introduced a bill that could not only change lives in Texas but unlock opportunities for millions of Americans who have some sort of charge on their record that is holding them back from meaningfully contributing to society. This bill is known as the Clean Slate Bill and passed in 2023. This law would allow for a person's criminal records to be sealed after the required time if they are not on probation or parole and have no other pending charges. This opportunity will inspire others to rejoin society and transform their lives for years to come instead of feeling stuck in the system.
Further, The Clean Slate Initiative is a group that works to pass and implement laws that automatically clear eligible records for people who have completed their sentence and remained crime-free. They played a huge role in passing the Clean Slate bill. Sheena Meade, CEO of The Clean Slate Initiative states, “We're building a pathway so that automatic record clearance is a reality in all 50 states that will unlock second chances for an additional 14 million people.” [11] This bill empowers former criminals to keep their communities safe. By providing former criminals with opportunities to work and change their lives, it will inspire them to embark on a journey of transformation. It has been proven time and time again that people are less likely to commit crimes if they can possess a job which can lead to safe housing and the ability to care for their families. [12] Former criminals who have proven they can behave in society should be granted an expunction for equal opportunity to find a job and contribute to society outside of the system. Criminal justice reform, in general, should be about fighting for equality and fairness within the legal system and the expunction of records is a great place to start the fight.
Conclusion
The year of 2023 marks a significant stride in the fight for racial equality, with Illinois and Texas at the forefront for progressive changes. Illinois’ abolition of the cash bail system to a risk-based system targets the injustices of pretrial detention through the SAFE-T Act. The case-by-case evaluations support the freedom and financial security of those convicted of low-level offenses, allowing many minority groups to maintain support networks and employment while awaiting their completion of the legal proceedings. Texas’ policy focuses on reintegration, allowing countless individuals to expunge their records. For those in Texas, it’s not solely about erasing a criminal record, but rather restoring dignity, opportunity, and hope to those that are at a systemic disadvantage. These reforms, although distinct in their approach, emphasize the importance of a justice system that is equitable and independent of economic status or race. In tandem with this, they reflect a shift in societal values from pure retribution to a new wave of rehabilitation and understanding. Looking forward, these reforms in Illinois and Texas are significant milestones, and are a part of the ongoing and long-standing effort for racial equality. It is imperative to monitor the implications of these reforms and use the many successes to further push other legislation to make similar efforts.
Sources
Pereira, Ivan. “Here Are Some of the Major New Laws That Go into Effect in 2023.” ABC7 Chicago, 1 Jan. 2023.
Hill, Caitlin. “A Brief History of Cash Bail.” ACLU of Ohio, 12 Dec. 2017.
New Jersey Bail Reform Fact Sheet, Arnold Ventures.
Moeder, Nicole, et al. “Illinois Set to Become 1st State to Eliminate Cash Bail.” ABC News, 19 Dec. 2022, abcnews.go.com/Politics/illinois-set-become-1st-state-eliminate-cash-bail/story?id=95421342.
“Cash Bail Changes - 2023 Safe-T Act.” Illinois Legal Aid Online.
Moeder, Nicole, et al. “Illinois Set to Become 1st State to Eliminate Cash Bail.” ABC News, 19 Dec. 2022.
Ibid.
United States of America. Texas Legislature. Chapter 55. Texas Code of Criminal Procedure. 2023.
“Expunctions in Texas.” Texas Young Lawyers Association and the State Bar of Texas. 2019.
Lisa, Kate. “After hours of debate, Legislature passes Clean Slate Act.” Spectrum News 1. June 9, 2023.
Meade, Sheena “How "second chance" laws could transform the US justice system.” TED. April 2023.
Blattman, Christopher & Annan, Jeannie, 2016. "Can Employment Reduce Lawlessness and Rebellion? A Field Experiment with High-Risk Men in a Fragile State," American Political Science Review, vol 110(01), pages 1-17.