Illinois’ Pretrial Fairness Act

The Pretrial Fairness Act: Enhancing Pretrial Safety and Justice in Illinois

The Pretrial Fairness Act, recently implemented in Illinois, marks a significant milestone in reforming the state’s pretrial system. As of September 18, 2023, Illinois became the first state to eliminate cash bail, fundamentally changing how pretrial decisions are made. This historic shift aims to ensure that individuals accused of crimes are not held in jail solely because they cannot afford bail, emphasizing safety and fairness in pretrial proceedings.

For years, advocates have highlighted the shortcomings of Illinois’ pretrial system, pointing out how it often fails to assess safety properly, infringes on the rights of the accused, leads to unnecessary pretrial detention, and overlooks victims’ needs. Eliminating cash bail has garnered support from a diverse group of stakeholders, including those directly impacted by the bail system, crime survivors, reform advocates, legislators, and other officials. These groups have argued that cash bail disproportionately affects communities of color and those with limited financial resources, conditioning pretrial release on wealth rather than safety. The Pretrial Fairness Act’s implementation is a crucial step towards a safer and more equitable pretrial process.

Why Illinois Needs the Pretrial Fairness Act

Cash Bail and Public Safety

Cash bail has historically allowed wealth, rather than safety, to determine who remains in jail before trial. In the past, Illinois’ system relied heavily on cash bail, with judges setting amounts that defendants had to pay to secure their release. While proponents claimed this protected the public, in reality, judges often lacked the necessary information to make informed decisions, allowing wealthy individuals to secure release regardless of safety concerns. Decisions were frequently made quickly, based on predetermined schedules that didn’t consider individual circumstances, leading to a flawed assessment of safety risks. Before the Pretrial Fairness Act, pretrial detention hearings averaged just four minutes, insufficient for thorough evaluations of relevant factors.

In cash bail systems, those with financial resources can secure their release, regardless of the seriousness of their charges or the potential risk they pose. This is particularly concerning for advocates of crime survivors, as it has led to situations where individuals who could pay bail were released without adequate consideration of the threat they posed. Consequently, cash bail systems have endangered both the immediate safety of crime survivors and public safety in general.

The Harms of Unnecessary Incarceration

Cash bail has not only compromised public safety but also resulted in the incarceration of many individuals who could have safely remained in the community. This practice inflicts significant harm on families and children by disrupting lives and risking employment, housing, and access to essential resources. Prior to the reform, Illinois’ cash bail system detained over 250,000 legally innocent individuals each year, simply because they lacked the funds to buy their freedom.

Even short-term pretrial detention can destabilize individuals and families by disconnecting them from jobs, education, healthcare, and their communities. This destabilization has been linked to increased chances of rearrest. For children, parental incarceration can lead to negative outcomes such as educational disruptions, homelessness, substance use disorders, and future criminal involvement. Thus, cash bail systems harm both current and future family and community safety.

Racial Injustices in Cash Bail Practices

Unfair Incarceration of Innocent People

The principle of presumption of innocence is a cornerstone of the legal system, asserting that no one should be punished without conviction. Cash bail practices undermine this principle by extending the reach and harm of incarceration to innocent individuals. Many are compelled to accept plea deals to secure their release, regardless of guilt or innocence, with nearly 98 percent of criminal cases resolved through plea agreements. This leads to long-term consequences, including barriers to resources such as public benefits, housing, and employment. Furthermore, new research indicates that over 50 percent of criminal case arrests end in dismissal, yet many individuals endure pretrial incarceration before their cases are dropped.

Racial Disparities in Bail Practices

Studies consistently show that cash bail practices contribute to significant racial disparities in pretrial outcomes. Black individuals are more likely to be assigned cash bail, have higher bail amounts, and face greater pretrial incarceration rates than their white counterparts. Black women, in particular, are disproportionately held on cash bail and are less able to afford it, making up a significant portion of the female jail population. These racial disparities extend the harms of pretrial incarceration to the families and communities of the accused.

Economic Impact on the Poor

Cash bail systems disproportionately affect those with the least financial resources. Many people involved in the criminal legal system are considered indigent and struggle to afford basic necessities. As a result, even low bail amounts can lead to extended jail time. Families often have to pool resources, sometimes sacrificing essentials like food and rent, to pay bail. Before the Pretrial Fairness Act, Illinois families paid an estimated $140 million annually in cash bail, further straining economically disadvantaged communities.

The Benefits of the Pretrial Fairness Act

Centering Safety in Pretrial Decisions

The Pretrial Fairness Act replaces the arbitrary assignment of cash bail with individualized assessments, allowing judges to better evaluate safety concerns. This change ensures that those who pose a threat cannot simply buy their way out of jail. Judges can now impose conditions of release tailored to promote safety and court appearances, such as court reminders, benefits enrollment assistance, and no-contact orders or weapons restrictions. If someone poses a significant safety risk or is likely to flee, judges can still order pretrial detention.

The Act also enhances protections for crime survivors by ensuring timely notifications of pretrial release hearings and allowing survivors to request protective measures at each court date. These provisions were designed with input from crime survivors and advocacy groups to address their specific needs.

Reducing Pretrial Incarceration and Its Harms

The Act mandates law enforcement to issue tickets for court appearances for certain low-level offenses instead of arresting individuals. This reduces unnecessary pretrial incarceration while maintaining the option to detain individuals who pose safety risks. It restricts pretrial detention to serious offenses, ensuring that incarceration is reserved for those who are likely to flee or pose a significant threat.

Call The Law Offices of David L. Freidberg For a Free Consultation

If you or someone you know needs experienced criminal defense representation, contact The Law Offices of David L. Freidberg. Our dedicated team offers a free consultation 24/7 at (312) 560-7100 or toll-free at (800) 803-1442. We proudly serve clients throughout Chicago, Cook County, DuPage County, Will County, and Lake County in Illinois. Let us help protect your rights and secure your future.