After 9 months, state data begins to detail new pretrial detention system

[June 29, 2024]  By JERRY NOWICKI
Capitol News Illinois
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Nine months after cash bail ended in Illinois, the state is taking its first steps in publishing the data that crafters of the bail reform law saw as essential to judging its effectiveness.

The data shows that judges in the 75 counties served by the Illinois Supreme Court’s Office of Statewide Pretrial Services had collectively issued failure-to-appear warrants in just 5 percent of more than 28,000 court dates as of Friday. Judges had approved about 63 percent of petitions to detain a defendant pretrial that were sent to them by prosecutors.

The OSPS, launched in 2021 to provide things like pretrial safety assessments and electronic monitoring for 75 of Illinois’ 102 counties, published the data in a new dashboard this week. It represents a key – but still early and incomplete – step in tracking Illinois’ progress as the first state to fully end cash bail through a wide-ranging criminal justice reform known as the SAFE-T Act.

Some state’s attorneys, sheriffs and other law enforcement organizations were staunchly and publicly opposed to the law when it passed – launching several lawsuits that ultimately delayed cash bail’s elimination by nine months. But retired Cook County Judge Cara Smith, who now leads the OSPS, said she believes the data shows everyone is taking their responsibilities under the SAFE-T Act “very seriously.”

“I think judges and the other stakeholders – everyone, regardless of what their position might have been on the policy behind the SAFE-T Act – that everyone's doing their job,” she told Capitol News Illinois.

For David Olson, co-director of the Loyola University of Chicago’s Center for Criminal Justice, or CCJ, the data demonstrates the complexities of tracking a reform as large as the SAFE-T Act in a state as geographically diverse as Illinois.

“Everyone wants to know: ‘How's it going in Illinois?’” Olson said in an interview. “Well, which of the 102 Illinois(es) do you want to hear about? There's 102 counties, and every one's a little bit different.”

New pretrial detention system

The SAFE-T Act included a provision known as the Pretrial Fairness Act that ended the use of cash bail in Illinois, meaning a person cannot be jailed while awaiting trial simply because they can’t afford a dollar amount assigned by a judge. After litigation forced a delay in implementing the PFA, cash bail was officially eliminated on Sept. 18, 2023.

It created a replacement system in which prosecutors can petition judges to detain an individual based on the seriousness of the alleged crime and the defendant’s dangerousness or risk of fleeing prosecution. Before a judge can order detention, the state must prove “by clear and convincing evidence” that the defendant committed the crime, poses a specific threat to a person or the community and that no other pretrial conditions can mitigate the defendant’s risk.

The law also gives defendants a right to legal representation at their first court hearing, with the intention of making hearings more deliberative when an individual’s freedom is at stake as they await a full trial.

OSPS had completed more than 16,600 pretrial investigations since cash bail ended as of Friday, with just over 10,200 of them for defendants accused of a felony. As part of those investigations, the OSPS provides individual reports about a defendant to judges, public defenders and prosecutors prior to a first appearance in court. The investigations usually include an interview with the defendant, a detailed criminal history, employment information and more.

The data showed that about 52 percent of cases that were subject to an OSPS pretrial investigation contained at least one offense considered “detainable” under the SAFE-T Act. As of Friday, prosecutors had petitioned the court to detain the defendant in 62 percent of those cases.

The fact that judges approved 63 percent of those petitions, Smith said, was evidence the system was working.

“If we would have seen 99 percent of detention petitions are granted, that would have been a red flag,” Smith said.

Smith also stressed that the statewide data only tells part of the story – county- and circuit-level data is just as important. The various circuit courts within OSPS’ jurisdiction had detention petition approval rates ranging from 48 percent to 84 percent as of Friday, though Smith pointed out percentages can be misleading, especially in smaller counties with low case volumes.

Four large counties that are not part of the OSPS – Cook, DuPage, Kane and McHenry – report some level of pretrial detention data individually. Detention petitions as of Friday were granted at a 38 percent rate in Kane County, 41 percent in DuPage and 40 percent in McHenry.

Cook County, which has the highest volume of cases of any jurisdiction by far, broke down its data further, reporting that detention was granted for 61 percent of 93 petitions filed for misdemeanor cases as of June 8, 41 percent of 1,485 domestic violence cases, and 70 percent of 2,641 felony cases.

‘We didn’t see any sort of knee jerk’

Judges as of Friday had issued failure-to-appear warrants in only 5 percent of 28,416 court dates in the 75 OSPS counties since cash bail was eliminated. But Olson – whose CCJ has been studying pretrial detention since before the SAFE-T Act’s passage – cautioned that those numbers could increase, as failure-to-appear warrants are most accurately accounted for once a case has concluded.

“The (failure to appear) rates will likely increase as more of these cases have more time to have hearings missed,” Olson said.

The Office of Pretrial Services, which is overseen by the Illinois Supreme Court (pictured), released data this week about pretrial investigations and detentions nine months after cash bail ended in Illinois. (Capitol News Illinois photo by Jerry Nowicki)

However, both Smith and Olson also noted the number is likely driven downward by the SAFE-T Act’s instruction to judges not to rely on such warrants as a first remedy for a non-appearance.

“And really, the reason for that is a lot of defendants previously who had warrants issued just, basically, they forgot about court,” Olson said.

Other means of assuring a defendant’s appearance in court, Smith said, include simply sending text message reminders.

“We send about 200 court date text message reminders a day,” she said. “So that has been shown – just like it is when we get a haircut or have a doctor's appointment – to be an effective way of keeping important appointments at the forefront of people's minds.”

Another major function of the OSPS is to oversee electronic monitoring of individuals subject to home confinement in its 75 counties from a centralized location in Springfield. The OSPS now absorbs the cost of electronic monitoring – which, in many counties, was previously passed on to defendants.

Smith said OSPS has plans to add electronic monitoring data to a future version of its dashboard, and she added the agency has enrolled about 1,100 people in electronic monitoring.

“I was very afraid of an explosion in the use of electronic monitoring after Sept. 18,” Smith said. “We have not seen that. The program has steadily grown, but it's grown sort of organically … we didn't see any sort of knee jerk.”

Olson echoed that point, noting that the OSPS made electronic monitoring – and pretrial services in general – available in counties where it was never previously an option. But some counties may be reluctant to order electronic monitoring even though it is free to them, he said, because they’d have to expend potentially sparse personnel resources to enforce it.

‘A lot of variation’

While the OSPS data is useful in understanding how certain counties are handling pretrial detention in addition to examining broader trends, Olson said, it further demonstrates the disparities across jurisdictions.

The detainability data specifically applies to individuals who have been subject to an OSPS investigation – and not those whom an officer has simply cited and released.

Olson pointed to one example of how the numbers can be skewed in any individual county based on its practices. He said Loyola CCJ researchers were told by officials in southern Illinois’ Williamson County that all arrestees are held in jail at least overnight prior to appearing before a judge. As a result, the OSPS conducted investigations on all of those individuals, even if their offense was low-level. Thus, only 36 percent of individuals subject to an investigation in that county were detainable, per the dashboard.

In neighboring Franklin County, meanwhile, Olson said officials reported they jail only those individuals they believe are detainable, resulting in 59 percent of investigated cases containing a detainable offense.

There’s also a lot of county-to-county variance on the percentage of detention petitions granted, Olson added.

“And it really illustrates what we suspect is going to happen, and that's there's going to be a lot of variation from circuit to circuit and county to county, just based on local practices, priorities, discretion that's given to prosecutors and who they seek to detain,” he said.

‘So has it increased crime?’

While both Smith and Olson said the dashboard is just an early step in the data-gathering process, Olson added there’s a lot more information to be gathered in the coming years before the end of cash bail can be fully evaluated.

“I think that the biggest question people are going to want to know is, ‘So has this increased crime?’” he said. “That's still too early to know.”

Olson added that it’s important to differentiate between longstanding cyclical crime increases – such as more crime occurring in warmer weather – and actual effects of the policy. He also advised against extrapolating judgments about the system from any single instance of an individual being released from custody and going on to reoffend – because that also happened under cash bail.

“It’s still too early to say empirically, but there will likely be plenty of folks that talk about it anecdotally,” he said of cash bail’s effectiveness.

Olson’s CCJ also noted the law has had its intended effect of adding scrutiny to decisions affecting an individual’s liberty.

Bail hearings generally lasted about 4-6 minutes in four counties observed by the CCJ prior to Pretrial Fairness Act, according to a March CCJ report. After it passed, observed pretrial hearings averaged about 4-7 minutes – except in cases when detention was requested. Those hearings had median lengths of 10-30 minutes, with some lasting nearly an hour.

“That's actually one of the positive things that we've we found is everybody in the courtroom, including the defendant, knows exactly why the judge is reaching the decision,” he said.

Hannah Meisel contributed.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of newspapers, radio and TV stations statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.