Contextualizing cash bail’s end

[November 05, 2022]  By JERRY NOWICKI
Capitol News Illinois
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SPRINGFIELD – While a new law overhauling Illinois’ system of pretrial detention continues to face scrutiny ahead of its Jan. 1 implementation date, new research suggests that the old cash-based system “results in much less pretrial detention than is generally assumed.”

That’s according to the Loyola University of Chicago Center for Criminal Justice, which has been measuring the potential effects of the provision commonly referred to as the Pretrial Fairness Act, which will abolish cash bail come Jan. 1.

“What we’ve found is that, while it’s true that many people are jailed under the current cash bail system, most jail stays are brief,” researchers wrote in an Oct. 26 brief that examined data from six counties. “Most people pass through jails, being held for relatively short periods before bonding out — and that includes people charged with the kinds of serious offenses that are designated ‘detainable’ under the PFA.”

The research is nonpartisan and not conducted for advocacy purposes. It received funding from the National Institute of Justice, which is a research arm of the U.S. Department of Justice.
 

David Olson, a Loyola professor and Center co-director, spoke to Capitol News Illinois for an episode of the Capitol Cast podcast. Below is a list of questions covered in the conversation, along with other context from CNI’s previous reporting on the topic.

How will pretrial detention change under the new law?

The PFA, passed in 2021 as part of the SAFE-T Act criminal justice reform, will end the wealth-based system that decides whether an individual is released from custody while they await trial.

It replaces it with one that allows judges greater authority to detain individuals who are accused of violent crimes and deemed a danger to the community or a risk of fleeing prosecution. But the new system also limits judicial discretion when it comes to lesser, non-violent offenses.

Under current law, bail hearings typically occur within 72 hours of arrest and last fewer than five minutes. Prosecutors detail the defendant’s charges and may recommend a bail amount. The judge then decides the conditions of their release, including how much money, if any, the defendant must post before their release.

“The concern is that in in some counties, there's not sufficient time spent considering the decision at hand, …there isn't adequate or sufficient legal representation at that point where an important decision about liberty is being made,” Olson said.

The PFA, he said, was designed to make detention hearings more deliberative.

That’s important, he said, because the subjects of the law are defendants who have only been charged with, not convicted of, a crime.

The new process will allow a prosecutor to petition the court for pretrial detention and a defendant is given the right to legal representation at their first hearing, with the detention hearing typically taking place within 24 or 48 hours of the first appearance in court.

Will more defendants walk free while awaiting trial because of the new law?

Olson said the research can’t predict whether more or fewer people will be jailed while awaiting trial once the PFA takes effect, but the makeup of jail populations is likely to change. It’s likely, researchers found, that lower-level defendants will spend less time in jail, while stays may get longer for those accused of violent crime because they can no longer free themselves on bail.

One study estimated that a judge would not have been able to detain the defendant in 56 percent of arrests that occurred statewide in 2020 and 2021 had the PFA been in place.

But another analysis showed only 19 percent of individuals with pending felony cases were in jail custody while awaiting trial on average from 2017 through 2019, with another 17 percent on electronic monitoring or pretrial supervision.

That means about 64 percent of individuals awaiting trial for felony charges over that timespan were living in the community without any sort of supervision, the study found.

“The important caveat to that, and I think what the law seeks to address, is that they spend some time in jail,” Olson said. “And even if they spent a few days in jail, it's disruptive to their life. And we didn't really achieve anything if we were thinking we were achieving public safety, because we only held them for one or two days before (they posted bond).”

Another study of Cook County data showed individuals charged with an offense that would be non-detainable under the PFA paid an average of $1,646 to be released from jail in 2021. Individuals who could be held as flight risks under the PFA were required to pay an average of $4,846, while those detainable as risks to the community under the PFA could pay an average of $5,344 for release from jail.

So what are “detainable” offenses?

Under the PFA, police will maintain discretion to arrest and bring to the station any individual who is charged with a crime and deemed a threat to the public.

What’s new is that the law will create a presumption in favor of pretrial release for any individual charged with offenses for which a judge cannot deny pretrial release. That means officers are instructed to cite and release lower-level offenders who, under the officer’s discretion, are not deemed a threat to the community. They would be given instructions to appear in court within 21 days.

Once an individual is arrested, prosecutors may petition the court for pretrial detention. Once a judge receives that petition, their decision to detain would hinge on whether the state has proven “by clear and convincing evidence” that the defendant has committed a detainable offense.

Detainable offenses include non-probationable forcible felonies such as murder, aggravated arson, residential burglary, stalking, domestic battery, offenses where the abuse victim is a family or household member or if the defendant was subject to the terms of an order of protection, gun offenses and several specified sex offenses.

Persons deemed to be “planning or attempting to intentionally evade prosecution” may also be detained pretrial under what is called the “willful flight” standard if they’ve been charged with a crime greater than a Class 4 felony – such as property crimes, aggravated DUI and driving on a revoked license.

Research from the Loyola University of Chicago's Center for Criminal Justice examines how arrests in recent years would have been categorized under the Pretrial Fairness Act that ends cash bail beginning Jan. 1, 2023. (Credit: loyolaccj.org/pfa)

Olson noted the detention standards create a greater likelihood that individuals accused of domestic violence remain in jail than under current law. That’s one reason domestic violence victim advocacy groups, which helped craft the law, remain among its most ardent supporters.

“When we get to the domestic violence offenses, currently, they are detained to a degree but most post bond within a relatively brief period of time,” he said. “So it may be under the law that more of them stay in pretrial detention for a longer period of time.”

How is judicial discretion limited by “non-detainable” offenses?

Under the PFA, there are no offenses that would be non-detainable in every circumstance. Even misdemeanors and other low-level offenses can result in detention if the defendant is already on pretrial release, probation or parole.

But for the most part, the law prohibits detention of individuals accused of committing lower-level, non-violent offenses. Olson used the example of vandalism, criminal trespass where the defendant is not deemed a threat, “someone stealing a six pack of beer,” small-amount felony drug possession or low-level retail theft offenses.

There are many levels of nuance to detainability, Olson added. For example, he noted, a homeless person who steals a purse might not be detained on robbery charges because it would be difficult to prove them to be a risk of willful flight. But an armed robbery with a firearm would be a detainable offense under the dangerousness standard.

“Most arrests in Illinois are for relatively minor crimes,” he said. “It's not the crimes that get much attention from the media or the public, but most arrests are for relatively minor crimes. And so the idea is divert those from the formal trappings of this process that take time and resources.”

Olson noted judges in many counties will have more options for setting release conditions for all defendants come Jan. 1 when the Illinois Supreme Court launches its Office of Statewide Pretrial Services in about 70 counties that don’t currently offer such services.
 

Pretrial services and supervision can range from sending reminders about court appearances, to mandating monthly check-ins to confirm a defendant’s address, to providing transportation, to overseeing individuals placed on electronic monitoring.

Supervision may also include court orders for counseling or treatment programs and requiring face-to-face reporting to a pre-trial service officer.

Why not give judges greater authority to detain all individuals?

A frequent argument against the PFA from prosecutors and Republicans is that the new detainability standards are too limiting for judges. Some have requested Illinois implement a system similar to one adopted in New Jersey in 2017 which allows judges to detain even for misdemeanor crimes.

They’ve also argued that the standard for proving willful flight is too high and some sections of the new law are contradictory, creating wider categories of “non-detainable” offenses than the bill’s drafters intended.

Olson noted the question of where to draw the line on judicial discretion is important because of the finality of pretrial detention under the new system.

“Now, the stakes are a lot higher, right?” Olson said. “The decision to detain is a decision to detain, it's not a wishy-washy on-the-fence of well, ‘We're going to hold you but if you can come up with $1,000, you're free.’ This is a decision about freedom. And so I think with that the argument by many is that detention should be more constrained.”

By providing lower-level offenders with a citation and scheduling them to appear in court within 21 days, Olson said, the intent of the law is to allow officers to go back to the beat rather than booking an individual, and to allow the courts to spend more time on cases where violence was involved or was likely to be involved.

It’s also something that, research has shown, has already been happening more frequently since the COVID-19 pandemic began.
 

Olson said the first hearing for cited-and-released individuals would be brief and would not focus on an individual’s detention, although a judge could set conditions of pretrial release or pretrial supervision.

What could change about the new law before Jan 1?

Judicial discretion is a matter that could be reconsidered when lawmakers return to the Capitol on Nov. 15.

A follow-up bill sponsored by former prosecutor and current Democratic Sen. Scott Bennett, of Champaign, would, among other things, widen judicial authority to allow for detention of a defendant charged with any crime if the court believes they are a serious risk of skipping trial, pose a danger to the community, or are likely to threaten a potential witness or juror.

That’s a bill that Gov. JB Pritzker has said could be a launching point for discussions as lawmakers consider amendments to the PFA, although he has not endorsed all of its components.

The bill’s House sponsor and domestic violence victim advocacy groups have pushed back against that specific provision, arguing that it would overburden the court system and divert resources from more serious cases where a person’s freedom is on the line and they’re accused of violent crime.

Olson agreed that by expanding detainable individuals from roughly half of those arrested to all individuals entering the system, the intent of the law would be drastically changed by the proposed amendment.

Will those held in lieu of bail on Jan. 1 be freed under the PFA?

Nothing in the bill says that will happen, although opponents of the PFA have cited its silence on the matter as a point of concern. Pritzker said he would like it made explicit in a follow-up bill that individuals held in lieu of bail when the bill takes effect will not be released.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to more than 400 newspapers statewide, as well as hundreds of radio and TV stations. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.