Crash Course: Pre-Trial Fairness
by Tina Peng
A bill eliminating cash bail in Illinois can’t go into effect until the state’s Supreme Court rules on the constitutionality of some of its provisions. Below, we explain the Pretrial Fairness Act, its current legal status, and what supporters of bail reform can do while the law is in limbo.
What is the Pretrial Fairness Act?
The PFA is part of the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act, a criminal justice reform package signed into law in 2021 by Governor J.B. Pritzker. Under the PFA, judges will use six factors (nature and circumstance of the offense changed; weight of the evidence against the accused; history and characteristics, including any violence, of the accused; risk of danger to another person; risk of obstruction of justice or flight; and the optional use of a risk assessment tool) to decide whether to detain or release an arrestee at an initial bond hearing. The PFA also reforms other circumstances of pretrial release, such as by giving police the authority to release new arrestees instead of requiring them to wait to see a judge, and by reducing the penalty for violating a condition of pretrial release or electronic monitoring in most cases.
What’s happening now?
A judge in the 21st Judicial Circuit held that the PFA violates the state constitution’s separation of powers clause. This means that the PFA cannot take effect in the 65 counties that had sued to block it (37 counties, including Cook, DuPage, Kane and Lake, did not challenge the PFA; Cook and Lake Counties both initially indicated that they still intended to move forward to end cash bail.) Illinois’ attorney general appealed the ruling to the Illinois Supreme Court, which halted the act entirely until it hears arguments and makes its own ruling.
What can I do?
Combat misinformation. A blitz of misinformation has preceded the law’s rollout, both online and through mailers. Opponents falsely claim that people charged with crimes like murder will be automatically released without bail; this is simply untrue. Prosecutors can request, and judges can decide, to hold people without bond upon evidence that they pose a threat to society. This evidence can include the nature of the offense charged and any history of violent behavior by the defendant. Below are some resources for better understanding the PFA:
A detailed explanation by the Civic Federation on what the Pretrial Fairness Act actually does and doesn’t do; another by the Coalition to End Money Bond and the Illinois Network for Pretrial Justice, which helped write the bill, and a list of legal resources by Pretrial Fairness
Chicago Appleseed’s fact sheet on how the Pretrial Fairness Act will support survivors of gender-based violence
Data on how national efforts to end cash bail have not made communities less safe
Support the organizations doing the work. The PFA, and more broadly SAFE-T, resulted from more than a decade of work by committed advocates. Many of these organizations are highlighted in the Illinois Network for Pretrial Justice’s list of members, which have committed to holding educational events, organizing letter-writing campaigns and call-ins, holding vigils or protests, and meeting with local decisionmakers or elected officials. The Network has also provided a resource to contact your legislator in support of the PFA.
Donate to bail funds. A nonexhaustive list includes: The Champaign County Bailout Coalition; Believers Bail Out; Chicago Community Bail Fund; Midwest Immigration Bond Fund.
Think beyond bail. Eliminating cash bail is only a first step toward meaningful systems change that addresses the root causes of crime; for example, housing insecurity is one of the most pressing issues for people involved in the system and is directly linked to recidivism. The national Bail Project, in collaboration with Lawndale Christian Legal Center, has launched a program to connect people coming out of jail with services for employment, housing, mental health, substance use, and other needs, such as transportation to future court dates, services critical for building a world beyond jails and policing.
