Letter to the Editor: Pretrial Fairness Act is going to have disastrous consequences for Illinois

In less than 4 months, the “Pretrial Fairness Act” will become effective and abolish Illinois’s cash bail system. Those who support the new law say the current system imposes a different justice system on defendants who can afford their bond, compared to those who cannot.

While we agree a person’s freedom should not depend on their bank account, completely eliminating the current system never was the answer. 

The new law going into effect on Jan. 1, 2023 is going to have disastrous consequences for the entire state. Abolishing cash bail means every person held in jail awaiting trial will have their bonds exonerated. Community safety will be put at risk.

The Pretrial Fairness Act is full of contradictions, ambiguities and is very poorly drafted. The act is so badly written that no two people read it the same way. Lawyers across the state are all scratching their heads, wondering how the new system is going to work and keep people safe. 

The cardinal rule of statutory interpretation is to ascertain and give effect to the legislature’s intent. Unfortunately, unlike many laws, the Pretrial Fairness Act does not include an explanation of the legislative intent of the act. Therefore, the legal community must resort to other means in determining the legislature’s intent. 

In February 2021, the Illinois Legislature passed, and the Governor signed into law, the “SAFE-T ACT,” which contained the Pretrial Fairness Act. The bill was more than 750 pages. It was introduced during a lame duck session with the hopes it could be forced through with little to no debate. 

Law enforcement officers, state’s attorneys and community safety activists since have pointed out to lawmakers the obvious flaws in the new law and begged for changes before it becomes effective. However, the legislature has done nothing to address the public safety threats the Pretrial Fairness Act created.

Until now, it has been our hope these issues would have been addressed, but it is clear no changes to the Pretrial Fairness Act are coming before Jan. 1. Therefore, it is our duty to inform the public about what to expect.

Before getting into detail about the upcoming changes, it is important to note how we got here.

In November 2017, the Illinois Supreme Court created a commission on pretrial practices. The commission studied best practices in use around the country, consulted pretrial reform experts, listened to stakeholders at public hearings throughout the state and analyzed the myriad sources of academic and professional analysis of pretrial issues. The commission’s thorough study, discussion and spirited debates during a two-year period culminated with a final report issued in April 2020. 

The final report rightfully highlighted recent reform efforts in Illinois. In 2017, Illinois enacted the Bail Reform Act, which had substantial procedural changes to detaining individuals accused of a crime. The legislature recognized, “Decision making behind pretrial release should not focus on a person’s wealth and ability to afford monetary bail but shall instead focus on a person’s threat to public safety or risk failure to appear before a court of appropriate jurisdiction.”

The current system’s reform efforts have focused on:

• legal and evidence-based research regarding pretrial risk;
• use of empirical pretrial risk assessment instruments;
• media reporting. 

By passing the Pretrial Fairness Act, the legislature abandoned all progress made through the Bail Reform Act of 2017 and made up a completely new system. 

Illinois is not the first state to attempt to eliminate or drastically reduce cash bail. New Jersey significantly reduced its use of cash bail in 2017. Since implementation, New Jersey saw a dramatic reduction in pretrial jail populations while failure to appear and re-arrest rates largely remained the same.

Bail reforms that were passed in Alaska and New York had to be rolled back or amended because their laws went too far and risked community safety. In New York, judges are not allowed to consider whether the accused is dangerous or is a risk to public safety. Kentucky adopted a system aimed to expedite pretrial release of low to moderate risk defendants charged with non-violent, non-sexual misdemeanors and to increase efficiency by reserving resources for high-risk defendants ordered to pretrial supervision.

Instead of trying to recreate the wheel, the Illinois legislature could have used successful laws of other states as templates and improved upon them or followed the recommendations of the Illinois Supreme Court. 

In the final report, the Illinois Supreme Court commission warned, “Far too many jurisdictions in Illinois lack an adequate framework to allow for effective evidence-based pretrial decision-making and pretrial supervision. Establishing a robust and effective pretrial system in Illinois is the first, and most crucial, step toward minimizing, and eventually eliminating, cash bail.

“However, simply eliminating cash bail at the outset, without first implementing meaningful reforms and dedicating adequate resources to allow evidence-based risk assessment and supervision, would be premature.” 

The legislature did not heed the warnings of the Illinois Supreme Court. Illinois is not equipped with the necessary infrastructure to successfully monitor individuals on pretrial release and maintain public safety.

In August 2021, in reaction to the Pretrial Fairness Act being signed into law, the Illinois Supreme Court created the Office of Statewide Pretrial Services. The office is setting up services in 68 counties, with the goal to be operational in those counties by Jan. 1, 2023.

To be clear, well over half the counties in Illinois do not have a system in place to monitor individuals released from custody. The Office of Statewide Pretrial Services is still in the process of hiring staff, and training has not started in most counties. There is absolutely no guarantee that every county in the state will monitor all the people released from jail. 

Beginning Jan. 1, 2023, people accused of committing a crime will either be released without being required to pay any money, or they will be held in custody without bond. Only people charged with very specific types of cases will be held. The first category of offenses is non-probationable, forcible felonies such as first-degree murder, residential burglary and aggravated arson. Other offenses eligible for detention are stalking, domestic battery, almost all sex offenses including child pornography and some offenses involving a firearm. 

Offenses for which people can’t be held in custody prior to trial are second-degree murder, drug-induced homicide, robbery, burglary, arson, kidnapping, unlawful use of a weapon by a felon, failure to register as a sex offender, battery, theft, criminal damage to property, driving under the influence and all drug cases including selling drugs, regardless of the possible penalty. 

Even if the person commits an offense that qualifies for detention prior to trial, the prosecution must still prove at a detention hearing by clear and convincing evidence:

• the person charged has committed one of the qualifying offenses;
• the defendant poses a real and present threat to a specific, identifiable person or persons;
• no condition or combination of pretrial conditions can mitigate the real or present threat to the safety of any person.

Judges no longer will be allowed to consider the person’s threat to the community unless the person is charged with a forcible felony which requires a prison sentence by law upon conviction. Serial domestic abusers, sex offenders and residential burglars will be set free without judges being allowed to consider public safety generally unless the prosecution can prove “by clear and convincing evidence” that the accused poses “a real and present threat” to a specific person and no condition can mitigate the threat. 

Making matters worse, the new law requires the pretrial detention hearing to be held immediately upon the prosecution filing a petition to detain the accused, and the accused must be seen by a judge within 48 hours of arrest. This means law enforcement must complete their reports in a very short period of time and send them to prosecutors, who must review the reports, make charging decisions, bring offenders to court, and present evidence showing the accused is a threat to a specific, identifiable person — all within 48 hours of arrest.

This is an almost impossible standard, which was never intended by the Illinois Supreme Court.

The Illinois Supreme Court commission recommends in their final report that detention should be permitted only for those who commit “violent” offenses. However, the report never gave a criteria or enumerated which offenses should be considered “violent.”

The report did recommend:

• the detention hearing be held within three calendar days;
• the prosecution need only show “probable cause”, not “clear and convincing” evidence, that the accused committed the violent offense;
• judges need only find by a “preponderance of evidence” that the accused poses an unmanageable level of risk to commit or attempt to commit a violent offense.

The Illinois Supreme Court’s commission was clear that judges should be allowed to consider the safety of the community during detention hearings. Again, the Illinois Supreme Court’s recommendations and the pleas by law enforcement officers fell on the deaf ears of the legislature. 

The legislature’s actions also are an exercise in fixing a problem that, for most of the state, does not exist. In 2020, 31 felonies and 26 misdemeanors were filed in Brown County.  In 2021, those numbers were 33 felonies and 29 misdemeanors.  As of Aug. 18, there have been 24 felony and 9 misdemeanor cases filed.

Brown County currently has less than six people in custody, with two of those awaiting trial. The rest are serving sentences. Put another way, only 0.09 percent of the county’s approximate population of 6,599 is in jail.

Brown County inmates awaiting trial have been charged with attempted first-degree murder, aggravated criminal sexual assault and a sexually dangerous persons petition. In short, everyone in jail awaiting trial has earned their accommodations.

Come Jan. 1, 2023, the two inmates Brown County currently has awaiting trial will be eligible for pretrial release. The court can only deny that release after a verified petition is filed by the state’s attorney. At a hearing held on that petition, if the court finds that pretrial release of that person poses a specific, real and present threat to any person or the community, then that person will be detained. Further, if the court detains that person, then at each instance where the defendant appears in court on the charge, the issue of the denial of pretrial release must be revisited. 

We make this statement not to incite fear but to educate the public on the reality coming Jan. 1, 2023. When someone commits a crime in Illinois, that person will not be held in jail, absent extreme circumstances.

The Brown County State’s Attorney’s Office, the Brown County Sheriff’s Office and the Mount Sterling Police Department will continue to pursue public safety, stand up for victims and hold criminals accountable.

Please contact your legislators and demand the same. 

Michael Hill, Brown County State’s Attorney
Justin Oliver, Brown County Sheriff
Brandon Norris, chief, Mount Sterling Police Department