The end of wealth-based detention is one element of the SAFE-T Act passed in 2021 by Illinois lawmakers as part of a sweeping criminal justice reform package. The new system removes a defendant’s ability to pay from the decision to release them while they await trial.
Since January, Judge Casey Costigan has served on a statewide Illinois Supreme Court committee working on plans to implement the Pretrial Fairness Act (PFA). Each step in the criminal justice system, starting with an officer’s decision to arrest a person, was examined to determine how the legislation impacted the existing process, said Costigan.
A group that includes prosecutors, public defenders, police, court clerks and probation staff, has been meeting since August to discuss changes in how criminal cases will move through the McLean County court system.
The other four counties that make up the 11th Judicial Circuit — Logan, Woodford, Ford and Livingston — are working on plans for their counties.
Eleventh Judicial Circuit Chief Judge Mark Fellheimer said judges are not in the business of offering an opinion of the new law that has drawn strong criticism in some circles since its passage. The group also is prepared for any last-minute revisions lawmakers may make ahead of the new year.
“We’re just dealing with the structure and how to implement it. We feel comfortable right now that through all the various channels of information, we’re ahead of the game in terms of being prepared. What the outcome is at this point, no one knows,” said Fellheimer.
The legislative changes begin with the initial stop by police, and whether a person is given a citation and a court date 21 days after being stopped, or held until a detention hearing, depending on the level of offense. After Jan. 1, an individual will have a presumption in favor of release for non-detainable offenses.
When people report to court, their detention hearing could last substantially longer if the state seeks to hold them until their case is resolved. Advocates of the revised process support the more individualized and holistic approach to bond decisions.
“The way we decided to do this was to create a special docket. The judge will supervise everything that’s coming in the door to make sure it’s getting to the right place,” said Costigan.
Unlike the current bond court — a series of hearings, each lasting under five minutes and supervised by a rotating roster of judges— the new version will be supervised by one judge who will hear a range of matters, including requests from the state to detain, violations of release conditions and orders of protections sought by victims.
"We’re ahead of the game in terms of being prepared. What the outcome is at this point, no one knows."Eleventh Judicial Circuit Chief Judge Mark Fellheimer
Associate Judge Scott Kording has been assigned presiding judge of bond court.
“It will be a significant shift in how these matters are done. But of course, the stakes are high for everyone — for the defendant, and certainly for the state if the state is seeking to detain” a defendant, said Kording.
“The law is complicated, and these aren’t going to be easy hearings,” added Costigan, noting the appointment of a single judge will provide consistency as the new system is rolled out.
In its effort to implement the changes, the Supreme Court’s Implementation Task Force developed a series of flow charts for each step in a person’s interaction with the criminal justice system. Along with an explanation of how the complex system will unfold is a list of considerations for judges and stakeholders. The charts identify “the vague areas that are going to need to be interpreted by the courts,” said Costigan, who takes over in 2023 as chief judge of the 11th circuit.
Research by Loyola University of Chicago’s Center for Criminal Justicelooked at bond hearings in four Illinois counties, including McLean County, last year to get an idea of how decisions to release or lodge a person in jail were made. The results followed a traditional approach from each side with the state asking that defendants post some amount of cash to be released in most cases and the defense making the case that people not yet convicted should return home.
In a review of 33 local cases, prosecutors requested a bond in 24 cases, requiring the defendant to post 10% of the bond.
In those same cases, a public defender asked for release on a no-cash bond in 19 cases, a “low bond” in four cases and a specific 10% bond in five others. Neither side made a bond recommendation in five of the reviewed cases.
The Loyola study also looked at the factors mentioned by prosecutors and defense lawyers in their arguments. Prosecutors relied on a description of the pending charges in 58% of the cases, followed in 27% of the cases by the impact of the crime on the victim, and in 24% of the cases by the defendant’s prior record.
The defense leaned heavily on a person’s ties to the community in 33% of the cases and their inability to pay bond in 24% of their arguments for release on low or no cash bond, said the Loyola data.
McLean County judges offered reasons for their decisions in a small number of the examined cases but when they did, their reliance on a pre-trial risk assessment and prior criminal history information were recorded in 6% of the cases.
A provision of the PFA bars the use of the pre-trial risk assessment as the sole reason to deny pretrial release. New rules also clarify the two detention standards used by judges to help them determine if a person is a flight risk or threat to public safety.
In his comments to a recent conference for the media organized by the Cook County Criminal Justice Communications Group, Loyola criminologist Dave Olsen shared an analysis indicating that under current conditions, most pre-trial defendants are released within seven days for both detainable and non-detainable charges. He said the impact of even a short jail stay can be harmful for an arrestee with little impact on public safety.
“Pre-trial detention is not buying us public safety because people are released pretty soon after they are arrested,” said Olsen.
McLean County court administrator Will Scanlon serves on the Supreme Court’s committee working on the launch of the court’s Office of Statewide Pretrial Services in about 70 counties now lacking those services. The establishment of pretrial services will give counties more options for release conditions.
Scanlon also works with the stakeholder’s group on the changes coming to the local detention process. Each agency has been encouraged to develop written procedures for how it will handle operations under the PFA, said Scanlon. But it will take time, he said, to address the full consequences of the new legislation.
“There’s going to be bumps in the road, no doubt about it,” said Scanlon.
On Thursday, WGLT will hear from McLean County prosecutors and public defenders on how the end of cash bail will impact their offices.
