The Assault on the Pretrial Fairness Act

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Local Pretrial Fairness Act activists and advocates demonstrate at Illinois Terminal in Champaign, outside of State Senator Scott Bennett’s office, on October 3, 2022. Photo courtesy of Karen Medina

Last month, News-Gazette columnist Jim Dey headlined “hysteria” over the provisions of the 2021 Illinois Pretrial Fairness Act (PFA), which will go into effect in January, including the end to cash bail. Predictably, but illogically, Dey located the hysteria on the side of advocates for criminal justice reform rather than right-wing scaremongers who are shrilly shouting “Purge.” [The reference is to the horror media franchise, in which all crimes are allowed for a short period annually.] As if the end of cash bail meant that everyone would be automatically released to the streets. . . .

More dangerously, many right-wing voices like DuPage County prosecutor Bob Berlin, who had resisted the bail reform, now muddy the issue by claiming to have supported some form of it (this support was hardly visible before). Disingenuously, they imply they only want “implementation” changes, while giving a distorted characterization of the act’s existing provisions. Other prosecutors around the state are suing to repeal reform (interestingly, doing so just before the coming election, while the act itself passed back in February, 2021). Most troubling however are some efforts purporting to avoid the hyperbole surrounding the law while replacing it with proposals that sound innocuous but would radically undercut bail reform. This reality is best reflected in a bill recently introduced by State Senator Scott Bennett: SB 4228 would effectively gut provisions of the Pretrial Fairness Act under the guise of offering so-called “clarifying language.” The proposed language does not clarify, but fundamentally changes the act in a way that is likely to prove worse than the existing unfair system.

So it is useful to nonhysterically try to do two things here. First, to frame the larger issue of cash bail with what we know through scholarly evidence and that of our own eyes; and, second, to see why Bennett’s bill is problematic. First, my own eyes—from prior experience as director of the Cook County Special Bail Project, and from this past August as a courtwatcher in the Champaign County Bailout Coalition’s data collection initiative with the Illinois Network for Pretrial Justice. (Any citizen can spend the early afternoon in Courtroom K of Champaign County Court, where bail and arraignment hearings are held.) What that citizen will see is that the overwhelming majority of defendants are people of color. Moreover, those defendants attending the hearing on Zoom from the county jail are likely to have already been in custody for a day or more before their bail hearing. And they are poor. Again overwhelmingly, those with completed paperwork are assigned to the overworked public defender because they can’t afford a lawyer. Poor and minority people populate our jails before even being convicted.

Activists demonstrate for fairness in the Illinois criminal justice system. Photo by Ben Ruddell, used with permission

What People Need to Know

Serious research over the past decade, as opposed to opinion pieces, tell us the following:

  1. Of course, if you are in jail before trial, you won’t commit crimes in the community, so your crime rate before trial declines. Comparing the incarcerated with those out on money bail or on their own recognizance is not terribly informative. Likewise, your flight risk if locked up until trial is less than those out on bail—obviously. But a decade of recent research shows us: if you sat in jail awaiting trial, you are much more likely to commit further crimes after your case reaches disposition than those who were out on bail. Spending even one or two days in pretrial detention increases your chances of later rearrest, conviction, job loss, residence loss, and so forth. The longer you sit there, the higher the chance of these outcomes.
  2. The major source of trial-related debt (there are many others) is the financial hole your family incurs by raising money to bail you out.
  3. A 2022 study from the John Jay Data Collaborative for Justice finds that two-thirds of those in jails (as opposed to prisons) have not yet been convicted; two-thirds of women who can’t afford bail have minor children; the average annual income of those stuck in jail is between $11,000 (for women) and $16,000 (for men); the proportion of the steadily growing jail population accounted for by pretrial detention is about 6 percent.
  4. Being in jail is not safe. Underfunded jails produce inadequate health care, jailer undertraining, etc. Sexual and other physical assault is a common problem, about equally from other prisoners and staff. Infectious diseases like COVID–19 spread in closed populations.

Widely varying estimates suggest that the taxpayer is paying between $14 and more than $100 billion annually for this sad situation.

Image from Fair Fight Initiative,

Above all, there is a need to rethink what public safety means. Historically, public safety has meant “protection”—law enforcement stopping crime, rounding up suspects, and jailing them. This narrow definition of public safety completely ignores affirmative social justice. People with access to basic needs—decent jobs and decent safe housing—are no longer caught in a web where options disappear. This is the necessary framework for a fair justice system.

What’s Wrong with Senator Bennett’s Bill to “Clarify” Pretrial Fairness Provisions?

The single most important thing Bennett’s bill does is to remove the guardrails in the current version of the act that shape a judicial decision about whether to release a defendant or not. PFA sets standards for the decision to deny bail: the need for a specific threat to persons and the determination whether the defendant is at risk for “willful” flight. A judge is perfectly able under the new act to deny bail in cases where the threat can be clearly documented or where there is a serious risk of flight and non-appearance in court. The Bennett bill provides that all court non-appearances are evidence of willful flight: “past non-appearance in court is conclusive evidence of future intent to evade prosecution.” Maybe, if there were a useful system in place to provide text or postcard reminders of time and place. Go to court and you will see defendants handed pieces of paper for a subsequent court date weeks later. Yes, you can check the court website to find the date—if you can navigate it.

Bennett’s bill gives judges and prosecutors maximum flexibility to decide on their own conception of risk and safety factors. In effect it allows almost every charge to be “detainable.” You may see in this bail debate the term “detention net,” which refers to the scope of charges for which a court can incarcerate a defendant before trial. Senator Bennett’s detention net is very broad indeed.

Think what this means and why it poses a potentially greater problem for poor people and minorities than the existing unfair system. In the current money bail system, there is at least a chance that a family can pool resources (even go into debt) to bail out a defendant. The Senator’s “clarification” and “updating” of PFA can mean that even that horrible option is foreclosed. Today, racial and class disparities are central to wealth-based incarceration before trial. The Senator’s bill threatens to shut the jailhouse door even more completely.

By the way, PFA eliminating cash bond was not implemented in the dead of night at the last minute. First introduced in 2017 and passed after multiple hearings in early 2021, it has also been the subject of an Illinois Supreme Court-led implementation task force of stakeholders (judges, prosecutors, criminal lawyers, legislators, sheriffs, police chiefs, etc.) to identify procedures and challenges to implementation. I can’t find evidence that Senator Bennett deeply engaged in that process before his own submission—which would have been helpful, though he is now meeting with some stakeholders and advocates after the fact.

Local Pretrial Fairness Act activists and advocates demonstrate at Illinois Terminal in Champaign, outside of State Senator Scott Bennett’s office, on October 3, 2022. Photo courtesy of Karen Medina

Let Senator Bennett know that his bill is a major step back from reform. The post-election fall “veto session” is slated to start November 15, so contact his office now with a phone call (217-355-5252) or email, through his website.

Carol Leff is emerita UIUC political scientist, past director of the Cook County Special Bail Project, and current American Civil Liberties Union (ACLU) Champaign County President.

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