During the last day of the 2021 lame-duck legislative session in Illinois, the Illinois Senate passed House Bill 3653, with a subcomponent known as the Pretrial Fairness Act. The House version passed the same day, and on February 22, 2021, Governor Pritzker signed the comprehensive bill into law. Illinois courts will begin operating under the rules of the Pretrial Fairness Act on January 1, 2023.
The intent of the Pretrial Fairness Act is to promote equity in the legal system by reducing the unfairness inherent in monetary bail policies that favor wealthier defendants. Before the Pretrial Fairness Act, sentencing that included monetary bail essentially allowed defendants with more cash resources to easily attain bail and release from confinement, while money-strapped defendants were stuck in jail.
The Pretrial Fairness Act rectifies that issue comprehensively, abolishing cash bail entirely in favor of a comprehensive system of bail reforms which is laid out in detail.
What Takes the Place of Monetary Bail?
The Pretrial Fairness Act makes changes to pretrial release rights and procedures. When an arrest warrant is issued, the subject of the warrant is brought before the Court for the Court to determine the detention and/or conditions of release. Law enforcement officers must release people charged with petty, traffic, business, and ordinance offenses and Class B and C misdemeanors on citation. The exception is if the State shows that the person arrested is a threat to a particular person. One argument that has been made is that the way the statute is now worded, a domestic batterer who kills their spouse would no longer a danger to any specific person because that one person they were a danger to is no longer living and thus must be released.
Police may release the arrestee with a summons to appear within 21 days, for petty offenses or Class C or B misdemeanors. This person must still appear before a Court to determine conditions of release. This has created much confusion in the future implementation of the law.
For more serious offenses, a person charged must be brought before a Court for an initial appearance. However, at this initial appearance, the Court may allow the defendant to be released pretrial with conditions for that release. If the court wishes to detain the defendant until trial, they may do so upon verified petition by the State. The way that the law is written, the Court has no discretion to independently detain the defendant. The State must be the one to make that determination and the Court can then rule on it ONLY if the state files the petition.
Additionally, no matter how serious the offense, the defendant always gets to have another hearing for release at each Court appearance if they ask for one. This dependence by the Court upon the State to determine if the defendant can be held has raised a realistic question of separation of powers between the Executive and Judicial branches of government. There is also a question of if this is a violation of the Victim’s Bill of Rights under subsection 8.1 of the Illinois Constitution. Finally, it has also raised the question of “inherent judicial authority to protect the public” under their constitutional role as conservators of the peace.
Crucially, the presumption of pretrial release is considered the new standard and may only be denied when the prosecution fills out a petition for detention and then they must overcome a presumption in favor of release. The statute relies heavily upon the contempt powers of the Court. However, if a person violates the terms of the pretrial release, the statute gives a different standard for contemptuous behavior. It mandates a burden of proof of Clear and Convincing evidence. The problem with this is that this standard is in direct contravention to the established evidentiary standard of beyond a reasonable doubt required to incarcerate someone.
Contact an Experienced Lawyer Today
Do not delay in acquiring legal help from our law offices. Glasgow & Olsson is uniquely qualified to help navigate new changes to pretrial release procedures. Recent changes to Illinois law likely affect your rights and trial process, so make sure to remain informed and updated. Make sure to acquire legal assistance the whole way through. When you need an attorney, experience matters. Contact us today to learn how our experience can get you the results you deserve.