The Pretrial Fairness Act: One Year On

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By Matt Alsdorf and Alison Shames

One year ago, Illinois’ Pretrial Fairness Act (PFA) went into effect, making Illinois the first state to completely eliminate money as a condition of pretrial release. The PFA is the most recent—and among the best—model of effective pretrial justice.

In place of a money-based system, Illinois’ PFA establishes a practical framework that requires judges to make intentional decisions about pretrial release and detention, along with individualized determinations about conditions of release. Detention is allowed only for eligible offenses and only after an adversarial detention hearing with due process and defense counsel representation. Judicial decisions are on the record and may be appealed.

The law and related changes introduced an array of other improvements, including broadening the use of notices to appear instead of custodial arrest for certain categories of low-level offenses, expanding pretrial services statewide, requiring courts to collect specific data, and creating a Pretrial Practices Data Oversight Board to oversee the collection and analysis of pretrial data.

Since the PFA was implemented on September 18, 2023, we have spoken with dozens of pretrial system stakeholders and community advocates. Below, we share what they have learned and where there is room for ongoing improvement.

Key Pretrial Justice Advancements

Money Bond is Not Necessary

If there is one lesson other states can take from Illinois, it is that money is not needed in the pretrial system. While there is no evidence that financial release conditions are effective at improving court appearance or enhancing community safety, using money bonds is a deeply embedded cultural practice. It was thus unsurprising that the effort to eliminate money in Illinois was met with strong opposition that included paid campaigns and legal challenges. The good news is that resistance can change quickly once people see how a legal and evidence-based pretrial release and detention process works.

In an interview, Cook County Circuit Court Judge Mary Marubio said, “there was a very quick embrace of the idea that money—using money tied to freedom—was immoral and unfair. That happened so fast. It just dropped from the conversation entirely.”

Hearings Uphold Constitutional Rights

The U.S. Supreme Court unequivocally states, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Before the PFA, decisions in Illinois about people’s liberty were often made with little information and in just a few minutes. Today, detention decisions are more informed and intentional, and detention hearings take significantly longer—reflecting their critical stakes. The law specifies due process protections, including representation by defense counsel, and sets clear standards for detention: the State must prove by clear and convincing evidence that no condition or combination of conditions can mitigate the risk to community safety or willful flight.

“Cash bond was always a crutch. It was a crutch for prosecutors, it was a crutch for judges, it was a crutch all around,” Judge Marubio said. “Getting that out and just having pure legal arguments is phenomenal.”

Detention Hearings Support Victims

Advocates for survivors of domestic violence support the PFA because money bonds harm survivors. “What we see is that [survivors] are often more likely to be incarcerated due to money bond because we’re arrested when we call for help or when survivors are accused of a crime perhaps as a result of their victimization,” said Amanda Pyron, executive director of The Network: Advocating Against Domestic Violence, during a webinar. “What survivors need first and foremost is a risk-based system. They need the system we have now in Illinois that takes far more time per case pretrial to determine lethality factors, to determine risk, and to make decisions based on those factors and not make decisions based on wealth.”

Judges Receive Better Information

“The hearings are much more robust and involved, and the defendants are there in open court. The defense has a lot more information, a lot more discovery, and making very thorough arguments when arguing the State hasn’t met its burden that the defendant needs to be detained because he or she isn’t a danger to a person, persons, or the community at large or that there is a condition or combination of conditions that the court may impose that would eliminate the risk and allow for their release,” said Judge Clint Hull (ret.), 16th Circuit Court.

Judge Debra Schafer, 17th Circuit Court, said, “It’s a lot more intentional now. The state does a lot of work putting together information to present to the court in support of why they want detention. I think that, in response to the Pretrial Fairness Act, the police are giving us better factual summaries.”

Judges and Prosecutors Exercise Discretion

Initial data from the Center for Criminal Justice at Loyola University of Chicago suggest that decisions about release or detention before trial are being made carefully by both prosecutors and judges. Prosecutors are not requesting detention in every eligible case, and judges are not granting detention whenever requested. For example, data collected in four counties found that, of nearly 9,000 domestic violence cases filed, prosecutors petitioned for detention in almost 2,000 cases, and judges granted detention in roughly 700 cases. Several counties and the Office of Statewide Pretrial Services have public dashboards that reflect a similar exercise of discretion.

Hearings Promote Procedural Justice

People in contact with the criminal legal system who believe they are treated fairly are more likely to accept court decisions, comply with orders, and have a favorable view of the courts and the system. The new processes ushered in by the PFA align with key elements of procedural justice: having a voice, understanding the process, being treated with respect, and neutrality in applying the legal rules.

In an interview, Bethany McLean, an assistant public defender in Kane County, said, “Before we had these [first appearance] hearings, it was more like rattling off a ton of information, and it would just zip by, and there’s our result.” Now, public defenders meet their clients before their hearing, and clients know if they face a detention hearing or a release conditions hearing. “It is not always good news, but sometimes it is. But at least there’s a calmness to the process, and people are treated as individuals,” McLean said.

Elements of Successful Implementation

Sufficient Resources Are Crucial

The PFA upended status quo practices and procedures. The new release and detention hearings take longer, putting additional pressure on court operations, prosecutors, and defense counsel. In particular, public defenders, who have historically been underfunded, experienced a dramatic increase in their workload, and many are struggling to meet the increased demands of the new hearing and appeals process. In 2023, the Illinois legislature appropriated additional funds for public defenders, appellate defenders, and appellate prosecutors to support PFA implementation. However, there is no guarantee the money will be renewed, to provide sustained funding for public defenders.

Collaboration and Education Lead to Success

The enormity of the changes has required pretrial system stakeholders to work together. This model of working collaboratively to understand their pretrial systems—from the first point of contact with law enforcement through case resolution—and to put the changes into action should be studied and followed by localities and states seeking to advance their systems.

Nearly 100 system and community stakeholders across Illinois served on the Illinois Supreme Court Pretrial Implementation Task Force, which developed statewide guidance, resources, training, and education to implement the new law, and emphasized the importance of local system and community collaboration.

The benefits of this work cannot be understated. Retired Judge Hull explained during a webinar that there were many opinions in his jurisdiction, and not everything was resolved in the first, second, or even third meeting. But he attributed their success to the commitment everyone had to work together and come back to the table again and again. “Because of that, we came out even better and stronger than when we went in,” Judge Hull said.

Champions Come from Inside and Outside

The scale of changes prompted by the new law posed both political and practical obstacles in Illinois, and advocates for pretrial justice needed to be found among those working within and outside pretrial systems.

The Illinois Supreme Court Commission on Pretrial Practices, created in 2017, modeled how stakeholders from rural, suburban, and urban jurisdictions could collaborate. It conducted a comprehensive review of pretrial practices and reached a consensus on recommendations, which is presented in its final report. Members included trial and appellate court judges, prosecutors, public defenders, law enforcement, staff in probation and pretrial services, circuit court clerks, and legislators, as well as community advocates and people who were formerly incarcerated.

The elimination of financial conditions of release would not have been possible without the support received as well from social and racial justice advocates, faith-based communities, people and families impacted by the criminal legal system, and advocates for domestic violence victims. Like system stakeholders, these groups brought different perspectives and made nuanced arguments to community members, policymakers, and reporters. This broad coalition of people working for pretrial justice provided the advocacy and political will necessary for transformative change.

Data is Vital

The PFA created the Pretrial Practices Oversight Board to develop a strategy for overseeing the collection and analysis of pretrial performance data. The board has surveyed existing data collection practices in 102 Illinois counties and has identified critical pretrial data elements to collect. While creating a state system for high-quality data collection, analysis, and reporting will require funds to integrate local systems and train local partners to ensure standardized reporting, data is vital for understanding how the PFA impacts pretrial outcomes. Policy changes always require iteration and modification to achieve and maintain the best outcomes for people and communities. Community groups and the public should participate in the ongoing review of outcomes and efforts to improve their pretrial systems.

Looking Forward

Stay Vigilant

“Seamless implementation.” “Better than what we originally anticipated.” “Incredibly smooth.” “Amazingly well.” These are some of the phrases used by judges, prosecutors, and public defenders to describe the implementation of the PFA in their jurisdiction.

As the state moves into the second year of the PFA, it is necessary to remain vigilant to ensure that the letter and the spirit of the act are upheld. It is not unusual for pretrial systems to revert to former practices over time, and to unintentionally create a new status quo that produces harmful and inefficient results. Systems that move away from financial release conditions, for instance, are at risk of overusing other conditions of release, including electronic location monitoring and pretrial monitoring. The research is clear that too many conditions may set people up for failure and result in the revocation of pretrial release, not because these people are a danger to the community, but because they fail to comply with restrictive and often punitive conditions of release.

Law and Practices Will Evolve

Practices and interpretation of the law do vary from one jurisdiction to another. For example, the law requires a hearing within 48 hours for people arrested for an offense eligible for pretrial detention, but some counties do not count weekends or holidays, meaning people wait longer than 48 hours. The timing also poses a challenge for rural counties without a full-time public defender or an assistant state’s attorney or that do not hold court daily.

Because the law requires data collection, local jurisdictions will, over time, have access to data to assess their local pretrial outcomes. This data may be useful in determining the impact of the varied interpretations and help the state identify where additional resources, training, and education are needed to improve outcomes.

New Approaches Needed for Low-level Charges

Rural counties struggle with higher rates of methamphetamine and opioid use disorder than larger counties. They also have fewer services and treatment facilities to address the problem. Before the PFA, jail was often the only tool available for dealing with people who were arrested and facing these issues. But while some pretrial system stakeholders believed that jail helped people in the short term, they recognized that it did not provide a long-term solution. Now that people with substance use disorder or mental health needs cannot be detained when arrested on low-level charges, there need to be new approaches to address the unmet needs that may contribute to a person’s contact with the criminal legal system. Research shows that jail harms more than it helps people with significant needs who come in with less serious charges. The PFA is highlighting the need for more community-based services for assessment and treatment, alongside assistance with childcare, housing, transportation, education, employment, and life skills.

In the last few decades, research, experience, and professional best practices pointed the way to a more fair, equitable, and effective model of pretrial justice. That road led away from the use of financial conditions of release and toward more deliberate, informed, and intentional pretrial decision making. With Illinois as the leader in eliminating money bond, we can look to the state for inspiration and build on its experience. Whether we are improving local systems or working to advance statewide change, Illinois provides an instructive model of how to reorient pretrial justice policies and practices so that they actually enhance the well-being and safety of people and communities.