AUG 01, 2023
How pre-trial detention and release will work following Supreme Court ruling
The Cook County Jail.
Illinois will become the first state to use a bail system that doesn’t require money on Sept. 18, following a Supreme Court ruling in favor of the Pretrial Fairness Act last week. With that change will come a new set of rules and procedures for law enforcement and courts to follow between a person’s arrest and criminal trial.
The Pretrial Fairness Act (PFA), the portion of the SAFE-T Act that eliminates cash bail and makes multiple changes to pre-trial procedures, was passed in 2021 as part of a major criminal justice reform effort led by the Legislative Black Caucus in response to racial justice movements in 2020. As part of that movement, Illinois lawmakers voted to eliminate the cash bail system in favor of a risk-based pre-trial detention system that supporters say will improve public safety while not punishing non-violent offenders who can’t afford bail.
“[Tuesday’s] ruling allows for determinations on pre-trial detention to be made on a person’s risk of harm versus their ability to access cash,” Cook County State’s Attorney Kim Foxx said at a news conference last month.
The change has caused a great deal of controversy and misinformation, however, as Republicans have argued many violent charges will not be eligible for detention. So how does the process work?
Offenses eligible for detention
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.
But in response to criticism, lawmakers did pass a bill last fall that clarified what offenses are detainable. Non-probational felonies, forcible felonies, hate crimes and others such as manslaughter, residential burglary, child abduction, stalking, domestic battery, certain gun crimes, threatening a public official, animal abuse and forms of driving under the influence are eligible for pretrial detention.
What happens when a person is arrested
The PFA makes few changes to when a person should be arrested and brought into custody. If they are being charged with offenses below a Class A misdemeanor or many non-criminal traffic offenses, they will be released with a ticket and a court date.
However, there are some changes to the law where a person may be brought into custody. If a person fails to provide proper identification, they can be detained. They can also be detained if they pose a threat to others, even if the offense is not detainable. Police officers will have broad discretion about when a person should be booked into custody, regardless of the level of the offense.
At the police station or local jail, a person must be given the opportunity to contact an attorney and members of their family within three hours of arriving at the station or local jail. Detainees are allowed three phone calls. The place of detention is required to have clear signage explaining this right.
Even after a person is brought to a detention place, police still have discretion over if a person should be detained. In some cases, police may decide to release the person from custody with a citation, such as cases in which it’s determined their criminal behavior has ceased. In other cases, police can decide to hold a person until they see a judge, which must happen within 48 hours of a person being detained.
The new bond hearings
Not everyone who is brought into a police station after being arrested must see a judge. Police can still decide to release a person from custody with a citation that has a future court date rather than waiting for what would previously have been a bond hearing.
Under the PFA, anyone the police or local prosecutors believe should be detained before trial will go in front of a judge for a hearing where the judge will determine if a person can be released from custody. Previously, these hearings were used to set a person’s bond, including for many violent offenses. After the bond was set, a person would wait in jail until they paid for their release.
Before the hearing, a person has the right to confer with legal counsel, whether it’s their own attorney or a public defender, about evidence in the case. Victims of the crime also have to be notified by the state’s attorney of their right to ask for an order of protection. A person may also be interviewed by a pre-trial service agency using risk assessment tools to determine their fitness for release.
When the initial detention hearing happens in front of a judge, arguments for detention will be made by the state’s attorney along two lines: a person is a flight risk or a person is a risk to themselves, other specific people or the community at-large.
To argue a person is a flight risk, prosecutors need to prove a person committed a crime eligible for detention and that no conditions of pre-trial release will prevent a person from evading future court appearances to avoid prosecution.
To argue a person is a safety risk, prosecutors need to prove a person committed a crime eligible for detention, specific facts of the case show the person is a threat to other people, and no conditions of pre-trial release reduce the risk of harm to others.
From this hearing, a judge will consider a person’s risk and necessity of holding them in jail before trial. Judges will make the final decision on if a person should be held until they face their trial, or judges can determine a person is fit to be released into society with a series of conditions designed to compel them to follow the law and return for future court hearings in their case.
Risk assessment tools can help judges make a decision about detention. But under the law, a person’s history of missing court appearances is not sufficient for a judge to hold a person as a flight risk.
“This reform allows judges to make safety-based decisions,” Lake County State’s Attorney Eric Rinehart said at a news conference last month. “It is individualized to a survivor of crime. It is individualized to a victim of crime.”
Conditions of release will still be similar to those imposed under the current cash bail system.
"Under the current law, when a judge sets a money bail, that is just one condition of release,” said Cook County Public Defender’s Office Senior Policy Advisor Sharlyn Grace at a news conference last month. “There are many other conditions of release, perhaps staying away from a specific address, not contacting an individual person, coming back to court and not violating other criminal codes. Those are all conditions of release just like money bail is. It’s not supposed to be, and it’s legally not a mechanism of detention. It’s a mechanism of release.”
If a judge grants a person pre-trial release, that doesn’t mean they will be allowed to remain out of jail at all times before their trial. Like under the cash bail system, judges still retain the right to revoke pre-trial release and issue a warrant for a person to be detained before their trial.
“If those conditions [of release] are violated, judges absolutely have the discretion to put somebody in custody because they’ve been given the chance to follow the rules,” Rinehart said. “I think that’s something that got lost in the lies and misinformation from last fall was that people couldn’t be held at all no matter what they did after having been arrested for a non-violent offense.”
The Supreme Court’s Pretrial Fairness Implementation Task Force has condensed the law into flow charts for law enforcement, judges and defense attorneys to refer to as they implement the new process. More information can be found on the task force’s website: https://www.illinoiscourts.gov/courts/additional-resources/pretrial-implementation-task-force/
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