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Commentary: Transforming pretrial justice for people, systems and communities

Director, Center for Effective Public Policy

Alison Shames

Last week, we marked the first 30 days of the Pretrial Fairness Act, which is transforming pretrial justice in Illinois. When the law was enacted one month ago, it made history by eliminating money bonds. Instead of the arbitrary practice of wealth-based detention, Illinois put in place sensible legal standards for intentional pretrial release and detention decisions based on the law and evidence.

Plenty of work still lies ahead, but we should acknowledge those whose efforts during the past two years helped ensure that the implementation of the law would positively impact people, systems, and communities. More than 100 people throughout the state participated in the Pretrial Implementation Task Force. They represented law enforcement, courts, state’s attorneys, public defenders, pretrial services, victims’/survivors’ rights advocates, and other community and justice system stakeholder groups — and dedicated countless hours to lay the groundwork for the law’s success.

While the state’s elimination of financial release conditions has generated the most attention, the Pretrial Fairness Act upended decades of questionable practices and operations. But what is remarkable about the law — especially regarding its potential impact nationwide — is that it reconnected pretrial practices with foundational American legal principles.

More than 30 years ago, the U.S. Supreme Court was unequivocal in declaring that “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

But this explicit statement was overlooked during decades of outdated practices, including the default setting of financial conditions of release (commonly referred to as “money bond”), which led to pretrial decisions that were neither careful nor limited. These practices undermined the presumption of innocence. Instead, financial conditions resulted in the detention of people without access to money — and the release of others, even if they posed a danger to community safety or of willful flight from prosecution.

By abandoning the arbitrary use of financial conditions, Illinois has adopted a commonsense legal framework that honors and operates consistently with the presumption of innocence and liberty.

In this respect, while remarkable, the Pretrial Fairness Act isn’t groundbreaking. It follows other states and jurisdictions that have moved away from financial conditions of release and toward reasoned, evidence-based, and legally justified decisions about who should be detained, who should be released, and under what conditions.

With the new law, Illinois joins New Jersey, New Mexico, and the District of Columbia in requiring substantive hearings to determine who should be detained and ensures that courts are taking the time necessary for decision makers to review each case and its circumstances properly. Where these reforms have been implemented, data and research show that they are working: The majority of people attend their court hearings and remain arrest-free.

The Pretrial Fairness Act’s accomplishments go beyond its alignment with foundational pretrial legal principles. The new law requires a comprehensive collection of relevant data to be analyzed and shared with justice system professionals and the public. Reliable data is essential for reviewing pretrial outcomes and measuring how a system performs as a whole; it will also contribute to more constructive and evidence-based discussions about the impacts the new law has on people, communities, and the court system.

Because the new law is complex and comprehensive, it required counties to do something that many justice systems don’t naturally do: work together across disciplines and functions. System stakeholders and community members collaborated in a well-structured process that helped them identify and better understand the changes they needed to make to their pretrial practices. This requires removing the traditional barriers in the criminal legal system that can divide system stakeholders from the community members they serve. These collaborations should continue and include representatives from all agencies with pretrial responsibilities and directly impacted people, victims and survivors, and their families.

The people working in the state’s criminal legal systems — judges, state’s attorneys, defense counsel, law enforcement, court clerks, pretrial services officers, and many others — deserve recognition for their extraordinary efforts to uphold the letter as well as the spirit of the new law. Change is never easy. But the Pretrial Fairness Act puts Illinois on the path to upholding foundational legal principles and the integrity of its system of justice. This important undertaking is off to a positive start.

Ms. Shames is a director at the Center for Effective Public Policy, where she co-directs the national initiative Advancing Pretrial Policy and Research and served as a technical assistance advisor to the Illinois Pretrial Implementation Task Force.

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