Doing Without Cash Bail in Illinois: The PFA’s First Month

The Illinois Pretrial Fairness Act (PFA) went into effect across the state on Monday, September 18th, completely overhauling Illinois pretrial detention and release practices. Among other things, the PFA abolished the use of cash bail as a condition of pretrial release, imposed strict new limits on the use of pretrial jail detention for people accused of crimes, and set up an array of new hearings, procedures, and decision standards for courts. As evaluators of the PFA’s statewide implementation and impact, we’ve been observing as many first appearance and detention hearings as we can in these early weeks, to monitor the roll-out and get a sense of early challenges to implementation.

So how does it look so far?

Obviously, we have only our initial impressions at this point, based on 150-plus hearing observations—mostly in Cook County, but also in Lake, Winnebago, Kane, and McLean Counties. We do have a baseline for comparison, however, having made structured observations in about 140 bond court hearings under previous law, many in counties we’ve now had a chance to revisit. In addition, we are continuing to collect and analyze available data regarding jail and pretrial supervision populations and the outcomes of detention hearings, which serve to supplement our first-hand observations.

A New Clarity

While our previous observations of pre-PFA bond court practice uncovered variations from one county to another, the general picture we got is easily summed up. Hearings were short—often breathtakingly so. Most defendants, whatever they were accused of, were given cash bail as a condition of release, and bail amounts tended to be substantial. Reasons were not always given for bond decisions, and it was rarely clear what factors were decisive. Perhaps most importantly, except in the rare instances in which defendants were detained without bail, it was not even possible to determine from the bond decision what custody outcome the judge actually thought was appropriate: that is, should the defendant be held or released? The only hint of an answer was a dollar amount.

We can certainly say that that uncertainty has now been cleared up. The new procedures mandated by the PFA focus all parties directly on the decision to detain or release. If the defendant is not to be detained (because the alleged offense is ineligible for detention, the state does not request it, or the judge otherwise declines to detain), the only issue is what conditions will be imposed in connection with release. In any event, at the end of every hearing, there is no doubt about what has been decided, or whether the defendant must remain in jail or may go home. In that sense, taking money out of the decision-mix has had a clarifying effect.

We noted some other signs that the PFA is changing the courtroom environment. In several of the counties where we conducted hearing observations, judges were educating everyone in the courtroom on the PFA, its procedures, terminology and decision standards. In Cook County, for example, judges began court sessions with lengthy opening statements on the new law, and took pains to explain their decision-making to defendants once hearings were under way. In other counties, judges were methodically articulating both the criteria that must be considered and the factors that went into their decisions, and in some instances, pointing out how the outcomes of the hearing would have been different prior to the PFA taking effect.

Hearing Times

The hearings themselves, at least at the outset, have been longer and more substantive, featuring sharper and clearer debate, than we typically saw under prior law. This was particularly true in Cook County, where, to deal with its large volume of cases, the Cook County Circuit Court’s Pretrial Division has set up a hearing schedule in which detention hearings are heard on most days in one dedicated courtroom, and first appearance hearings (in which detention is not available, or the state is not seeking it, and the only question is what conditions of release will be imposed) in another. This sorting enables the court to devote more time to cases in which the issues are more complex, the stakes higher, and the differences between the defense and prosecution positions more pronounced.

Across three days of observations in Cook, hearings on detention petitions took an average of more than 22 minutes. We saw one sharply contested detention hearing that came in just short of a full hour—far more time than any comparable hearing we observed under the prior law. (By comparison, bond hearings observed in Cook under prior law averaged about 4 minutes. The median length of “no-bond” hearings was just 13 minutes across all counties observed.) But hearings in which detention was not at issue were much shorter—averaging less than 6 minutes in Cook, for example. In Lake, Kane, Winnebago and McLean Counties, where detention petition cases were generally mixed in with others in which detention was not sought, average hearing times ranged from about 5 to more than 10 minutes. And of course, this was during a period when the law was still brand-new; it is possible that, over time, familiarity and routine may eventually shorten hearings everywhere.

Conduct of Hearings

Contrary to concerns raised by some practitioners prior to implementation, we saw almost no witness testimony in the first month of PFA hearing observations. In nearly all instances, prosecutors summarized the state’s evidence by way of proffer, after which both sides made arguments on the appropriateness of detention and/or the necessity of special release conditions. Although there was lots of variation in the factors relied on, prosecutors tended to lay the most stress on the alleged facts underlying the current charge and the defendant’s prior criminal history, while defenders commonly emphasized the defendant’s community ties and pointed out weaknesses in the state’s proffered evidence. In cases involving detention petitions, defenders frequently argued that other release conditions, such as pretrial supervision or electronic monitoring, would suffice to protect the community and ensure hearing attendance.

Most detention hearings we observed involved offenses that were conceded to be “detainable” under the PFA, and most detention petitions were grounded in public safety—that is, they were argued to be justified by the “real and present threat” to the safety of individuals or the community that the defendant would pose if released. But there was considerable variation among counties with respect to the part that risk assessment played in deciding this issue. In Cook County, the defendant’s Public Safety Assessment (PSA) scores were introduced into the record at the start of each hearing, often relied on in the parties’ arguments, and invariably cited by the judge in explaining the court’s decision. In other counties observed, the degree to which risk assessment scores were mentioned varied.

The other available ground for detention under the PFA—the risk of willful flight in the event of release—was less often invoked by prosecutors, and we saw very few detention petitions granted on that basis alone.

Hearing Outcomes

At least in the early going, in the courts we observed, judges seemed highly disposed to grant detention petitions brought under the PFA.  For example, in Cook County, over three days of observations in the courtroom dedicated to detention hearings, detention was ordered in 14 out of 19 cases in which petitions were brought. But regardless of the ratio of detention petitions granted, we should bear in mind the frequency with which short jail stays are still likely to be imposed as a matter of routine practice in Illinois courts: even under the PFA, there are many kinds of pretrial holding that don’t necessitate special public safety or willful flight findings, such as holding on previously issued warrants, including out of county and out of state warrants; holding on petitions to revoke probation or pretrial release; and Illinois Department of Corrections holds for violations of mandatory supervised release. Accordingly, a frequent outcome of hearings we observed was an order of “release” with respect to the current offense, coupled with continued detention in connection with some other case. In fact, defendants were held for one reason or another at the conclusion of about 45% of the hearings we observed in the PFA’s first month.

Release Conditions

One question we hope to answer with our evaluation is whether the PFA’s limits on the use of pretrial detention have the effect of causing courts to make more use of relatively restrictive additional conditions of release, such as pretrial supervision—which requires regular reporting to, and cooperation with, a pretrial services agency—and electronic monitoring (EM). At the same time that the PFA is being rolled out, state-funded pretrial supervision and EM are becoming available for the first time in many counties, through the newly established Office of Statewide Pretrial Services (OSPS). Alongside our evaluation of the PFA, and with separate funding from the MacArthur Foundation, we are providing research support to OSPS as it takes on the complex task of making these services available in 71 Illinois counties, most of them in less populated parts of the state. Because this is a big part of the context for the PFA rollout, we will be working closely with the agency to understand how these new services are being used, by whom, and for what kinds of defendants.

Other Issues: TBD

Through our evaluation we hope to be able to shed light on many other questions about the PFA, including:

• Jail impact. We’ve gotten an early sense of how the new law may be affecting jail populations across the state, but are in the process of building a data dashboard that will answer the question more definitively, by tracking pretrial jail bookings and length of pretrial detention in each of Illinois’ 92 county jails over time, pre- and post-PFA.
• Detention and domestic violence. One of the charges for which the PFA authorizes pretrial detention is misdemeanor domestic battery—a very high-volume case category in many counties, and one that often ended in dismissal under pre-PFA law. Will detention petitions now be routinely granted in domestic violence cases, and how might that change eventual case outcomes?
• Arrest volume. The PFA provides for “notices to appear” in lieu of custodial arrests for many low-level offenses. How will the new law’s arrest restrictions change the volume or handling of cases coming into the justice system?
• Procedural justice. One consistent criticism of the cash bail system, at least as practiced in Illinois, was that it was experienced as unfair and confusing, above all by the people going through it. Will the PFA change that? Will pretrial defendants feel less marginalized? Will they understand the proceedings any better? Will their families?

Because Illinois is the first state to try creating a pretrial system in which money is not a factor, a lot is riding on the answers to questions like these. But they can only be answered over time, with the help of thoughtful data collection and analysis, practice observations and interviews, and ongoing consultation and collaboration with practitioners throughout the state.