OCT 17, 2022
Deciphering the Pretrial Fairness Act: What the law does and where changes could be made
Cook County Jail
Illinois’ Pretrial Fairness Act, the component of the SAFE-T Act that ends cash bail, is set to take effect in about two-and-a-half months. The law has been the focus of partisan disputes this election season since it was passed in January 2021 as opponents call for its repeal while its framers try to sell its benefits.
The Pretrial Fairness Act was an initiative of the Legislative Black Caucus in hopes of pursuing a more equitable legal system after racial justice protests in 2020. The act gives Illinois the distinction of being the first state to entirely eliminate cash bail in favor of a risk-based pretrial detention system. But opponents criticize the law for being confusing and argue it was sloppily crafted and rammed through the legislature.
“We passed this in January of 2021 and yet conveniently all this stuff has started popping up three months before November,” Sen. Robert Peters (D-Chicago) said at a presentation about the act Friday alongside other stakeholders behind the law.
Republicans in the General Assembly have been criticizing the act since it was passed over 18 months ago, but recent inaccurate political advertising by political action committees has thrust the law into the public spotlight.
How the law works
Under the law effective Jan. 1, people charged with misdemeanors and some felonies can be released with a ticket for a court appearance without having to go to jail and post bond. State’s attorneys can petition the court to hold people charged with forcible felonies in jail while they await trial. If the judge rules a person should be held, they will not be able to bond their way out of jail.
“Under the plain language of the act, all offenses are eligible for release,” Rep. Patrick Windhorst (R-Metropolis), an opponent of the law, told The Daily Line. “A judge can release anybody who is arrested but a judge can only hold individuals pretrial under certain circumstances.”
The law does not list non-detainable or detainable offenses, but rather lists forcible felonies, including domestic violence, stalking and any crime with a firearm. Prosecutors will have to convince a judge a person is a threat to society or a flight risk if they are released from prison before trial, most often following forcible felony charges. People charged with nonviolent felonies such as retail theft or drug possession will be more likely to be released under the changes.
“All accused people are presumed eligible for pretrial release,” said Cook County Public Defender Chief of Staff Era Laudermilk during Friday’s presentation. “In order to detain someone, the state has a burden of proving by clear and convincing evidence that the proof is evident… that the defendant committed a qualifying offense and that the defendant poses and real and present threat to the safety of any person or persons or a high likelihood of flight from prosecution and that there is no condition or set of conditions that can mitigate that risk.”
But Windhorst believes the standard of “clear and convincing evidence” is too high.
“While there is a hearing, it’s not to the level of evidence that was needed because the state now has to provide clear and convincing evidence, which is a standard just below beyond a reasonable doubt, which is needed for convictions [and] is a fairly high evidentiary standard the state’s going to have to meet,” said Windhorst, the former Massac County State’s Attorney.
Windhorst said he also interprets the law to mean only people charged with felonies that are not eligible for probation, such as first-degree murder, can be held pending trial. Other felonies that are eligible for probation he believes will require the judge to evaluate a person for detention only based on their flight risk.
Risk assessment tools, which have not yet been specifically determined, can help judges make a decision about detention. But under the law, a person’s past history of missing court appearances is not sufficient for a judge to hold a person as a flight risk.
“This acknowledges the reality that sometimes people just miss court, people aren’t always able to call off work. People aren’t always able to secure transportation,” Laudermilk said.
The law also sets time requirements for when a person should make their first appearance in front of a judge. The first appearance must take place within 48 hours of arrest. Prosecutors can motion for detention, which will be decided by a judge in a separate hearing. That hearing can take place immediately or within the next 48 hours if a judge believes they should be held, or a judge can allow the person to be released with orders to return for a detention hearing within the next 21 days.
In New York City and New Jersey, where similar cashless bail laws have been enacted, it’s not common for someone to get three weeks of release before a detention hearing, said Vera Institute Vice President of Advocacy and Partnerships Insha Rahman during Friday’s presentation.
Lake County State’s Attorney Eric Rinehart argued during Friday’s presentation that speed is good for the justice system.
“It means our court system will have the [assurance] of focusing on those [violent] cases first,” Rinehart said, explaining that judges typically prioritize cases of people who are being held in jail before trial.
But that timeframe might be too fast for smaller counties where criminal court proceedings are not held every day, there are fewer judges and public defenders serve multiple counties at a time, said Windhorst, who was chief prosecutor in a county with about 15,000 people.
“The system as I read it really envisions a seven-day-a-week court system,” Windhorst said.
He also expects appeals on detention rulings to bog down the courts.
“The constitutional provision envisions a system of cash bail, not an elimination of cash bail,” Windhorst said.
Article 1, Section 9 of the Illinois Constitution says “all persons shall be bailable by sufficient sureties” except if charged with a capital offense or situations where a life sentence could be imposed.
In Cook County, Circuit Court Clerk Iris Martinez said during Friday’s presentation new hires and staffing changes are helping the county prepare and she anticipates the county will open eight to 10 new court rooms.
The law also created a task force run by the Illinois Supreme Court that is working to put together guidance for counties on how to implement the Pretrial Fairness Act.
Data behind the law
Illinois is the first state to entirely eliminate cash bail, but data from Harris County, Texas, New York City, and New Jersey, which has mostly eliminated cash bail, provides some data on what effect the law will have in Illinois.
New York City’s jail population declined by about 40 percent between 2019 and 2021, the rate of people appearing in court increased from 85 percent to 87 percent while rate of people reoffending while awaiting trial remained about the same, Rahman said.
In New Jersey, the jail population declined 47 percent between 2017 and 2019 while the rate of people getting rearrested and appearing in court remained the same, Rahman said. New Jersey’s bail law maintains cash bail in some circumstances and gives judges more discretion on pretrial detention and allows judges to detain people for any offense.
Rahman said Illinois’ law will be more like New Jersey’s, but a “higher and better standard.”
“This has actually happened in the rest of the country in certain jurisdictions and the sky has not fallen down,” Rahman said.
Some opponents of the Pretrial Fairness Act cite New Jersey’s law as an acceptable alternative for Illinois because the judge has more authority and there are fewer regulations on detainable offenses.
“If you give the judge enough discretion and you have parties represented, the issues of bond I think can be worked out in court,” Windhorst said.
An ongoing study at Loyola University in Chicago also sheds light on how crime might be affected by the Pretrial Fairness Act.
The study found arrests are declining in Illinois and the number of people charged with an offense that is detainable under the Pretrial Fairness Act is not increasing, despite rhetoric from some who say crime is rising in Illinois. In 2020 and 2021, 56 percent of all arrests were for non-violent offenses that are not detainable under the Pretrial Fairness Act, while just 17 percent of arrests were Class 3 or worse felonies.
It also found that 88 percent of jail books in Illinois last year were pretrial, which means the majority of the state’s jail population is people who have not been convicted of a crime. And 65 percent of people awaiting trial were also out of jail and not on court supervision.
“Despite large volumes and most people going through jail, most people stay for a relatively brief period of time, they post money and then they’re in the community,” said Loyola criminal justice professor David Olson during Friday’s presentation.
Olson said the data also shows that more than half of people charged with violent crimes are released within a week of being charged because they post bail while people charged with what would be more minor non-detainable offenses under the Pretrial Fairness Act are spending more time in jail.
“What this potentially suggests is that our current system, if we’re saying that pretrial detention is buying us public safety, it really isn’t,” Olson said.
However, Olson said he’s not sure exactly how the new law will impact the state’s jail population because while more nonviolent offenders are not being incarcerated before their trial, violent offenders will be spending more time in jail because they can’t post bond to leave.
Changes to the law
Democratic lawmakers behind the SAFE-T Act say there will be changes to the law before Jan. 1 but have been silent on what these changes could look like.
Peters said he knew changes would have to be made to the law and that he is willing to work across the aisle on changes, but the political rhetoric surrounding the law is making that hard.
“I would prefer to do it under good faith and not what has happened,” Peters said.
Windhorst said he has reached out to colleagues in the House in hopes of working together, but has received no response from members of the majority party.
“There is a need for clarity, and you will see that advocates have asked for clarity,” said Illinois Justice Project Director Garien Gatewood during Friday’s presentation.
He pointed to a lengthy bill (HB5377) filed by Rep. Justin Slaughter (D-Chicago) as an example of legislation that has been introduced in hopes of clarifying ambiguity around the law. The 220-page bill makes a variety of clarifications to the law but has not been called for a hearing.
Many Republicans are calling for the entire SAFE-T Act to be repealed. Windhorst sees a series of necessary changes in the Pretrial Fairness Act such as clarifying what offenses a person can be detained for, what is considered “willful flight,” what happens to people already in jail awaiting trial when Jan. 1 comes and clarifying the timeline for cases to proceed into something that is more feasible for small counties.
“I think if you’re going to fix the law, you’ve got to eliminate those gaps and Sen. Bennett’s bill attempts to do that,” said Windhorst, while noting he was not committing to back Sen. Scott Bennett’s (D-Champaign) proposed bill.
Last month, Bennett filed SB4228 with language that attempts to clarify the Pretrial Fairness Act while maintaining the integrity of the law. His bill redefines what offenses are eligible for tickets rather than arrest and tightens language on the definition of “willful flight.”
“Senate Bill 4228 is an effort to improve consistency in the SAFE-T Act and allow law enforcement officials to continue to effectively perform their duties and protect our communities,” Bennett said in a news release.
Rinehart addressed questions about what happens to currently detained people on Jan. 1 and said his prosecutors in Lake County are going through the cases of each person currently held in Lake County awaiting trial to decide if they will petition a judge to continue to hold that person in jail pending trial.
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