Bail Reform: Illinois’ Experience After 9 months

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Balancing safety and justice is especially challenging in the pretrial context where difficult decisions must be made quickly while evidence is still being gathered. In September 2023, an overhaul of Illinois’ pretrial system went into effect, eliminating the use of cash bail while also expanding the authority of judges to detain defendants without bail. As states and local jurisdictions across the country weigh pretrial policies, what can we learn from the Illinois experience to date? This panel of experts will review preliminary data and specific cases that shed light on this question. The conversation will also consider to what degree experiences have differed in rural and urban areas and examine what adjustments are needed.

Featuring:

  • Robert Berlin, State’s Attorney, DuPage County, Illinois
  • Hon. Eugene Doherty, Appellate Court Justice, Illinois Appellate Court for the Fourth District
  • Dr. David Olson, Professor, Department of Criminal Justice and Criminology & Co-Director, Center for Criminal Justice, Loyola University Chicago
  • (Moderator) Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Chayila Kleist: Hello and welcome to this FedSoc Forum webinar call, today, May 20th, 2024, we're delighted to host a discussion on bail reform, Illinois's experience after nine months. My name is Chayila Kleist and I'm an Associate Director of Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's program, as the Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, I'll keep my introduction of our guest today brief, but if you'd like to know more and access their impressive full bios, you can do so at fedsoc.org. Today we are fortunate to have Robert Berlin, who currently serves as State's Attorney in DuPage County, Illinois, where he has served since 2010. In that role, he serves as the chief law enforcement officer for the second largest county in Illinois, and leads an office of 87 assistant state's attorneys and 90 support staff and investigators.

 

Mr. Berlin is a career prosecutor with over 31 years of experience and has served in Cook County and in Kane County, where he served first as Assistant State's Attorney and Chief of the Priority Prosecutions Unit, and in DuPage County, where he worked as the Deputy Chief of the Offices of Juvenile Division, the Deputy Chief of the Felony Trial Division, and later as Chief of the Criminal Bureau. Also during this day is the Honorable Eugene Doherty who currently serves as an Appellate Court Justice on the Illinois Appellate Court for the Fourth District, where he has served since 2022. Prior to joining that court, Justice Doherty served in the 17th Judicial Circuit Court beginning in 2007, and he served as Chief Judge of the 17th circuit from 2018 to 2021. 

 

Dougherty is the author of a variety of articles in several legal publications including the Illinois Bar Journal, and he has been an instructor at the Illinois Education Conference multiple times.

He serves on multiple Supreme Court committees, including serving as Chair of the Business Policy Advisory Board and Vice-Chair of the COVID-19 Task Force. Prior to joining the bench, Justice Doherty engaged in a civil litigation practice in Rockford, Illinois. Thirdly, joining us today is Dr. David Olson, who is a Professor in the Department of Criminal Justice and Criminology and the Co-Director of the Center for Criminal Justice at Loyola University Chicago. Dr. Olson currently serves as the Chairperson for the Advisory Boards of the Illinois Department of Corrections and the Illinois Department of Juvenile Justice, and as a member of the Illinois Department of Criminal Justice Information Authorities Board, through separate gubernatorial appointments. Dr. Olson also currently serves on the Illinois Supreme Court Commission on Pretrial Practices Implementation Task Force, the Illinois Department of Human Services Firearm Violence Research Group and the Illinois Pretrial Practices Data Oversight Board. Lastly, but certainly not least, joining us today as our moderator for the conversation is Marc Levin, who is Chief Policy Counsel for the Council on Criminal Justice and a Senior Advisor for Right On Crime, a national campaign of the Texas Public Policy Foundation - TPPF.

 

Mr Levin has testified on criminal justice policy on four occasions before Congress and has testified before legislatures in states including Texas, Nevada, Kansas, Wisconsin, and California. He has also published dozens of policy papers on topics such as sentencing, probation, parole, reentry, and over-criminalization, and his articles on law and public policy have been featured in publications ranging from the Wall Street Journal to the National Law Journal, the Texas Review of Law and Politics, Jerusalem Post, Los Angeles Daily Journal, and many others and I will leave it there. A last note and then I'll get off your screen so we can get into today's conversation. If you have any questions throughout the program, please submit them via the question and answer feature so they'll be accessible when we get to that portion of today's webinar. With that, thank you all for joining today. Mr. Levin, the floor is yours.

 

Marc Levin: Thank you. Well, I'm just going to briefly set the table and then turn it over to our very distinguished panel. I think we all know that this area of pretrial justice might be the most challenging of all the criminal justice topics, and I think that's because on one hand we have the presumption of innocence. We have, of course, Chief Justice Renquist's statement in the Salerno decision that pretrial detention should be the exception, not the rule. But on the other hand, we also know that the point at which people are most dangerous potentially to the community is when they're on a crime spree and there's a small segment, I would say, of individuals that are so dangerous that no possible conditions could safely supervise them in the community and that they do need to be in jail prior to the trial, which hopefully could occur in the near future, which is another issue that we do have, is how long the justice system takes, which was of course exacerbated by the pandemic.

 

And one of the other things we see I think in this area is that most people agree that pretrial decisions should not be based on how much money someone has but on their risk to the community, and of course involve due process. But then we also realize that if it's not commercial bail or bail bondsmen, keeping track of someone and being responsible for them getting back to court theoretically, then - what does that mean in terms of the role for pretrial supervision and what resources they need to perform some of that function? They perform other functions as well, in terms of getting people connected with services, for example, who have mental illness. And Illinois tackled these challenges head on and enacted the Pretrial Fairness Act, which went into place in September of 2023. So we thought this would be a good time to evaluate what the results of that have been so far and how different stakeholders have adapted to it and what the path forward looks like both in Illinois and nationally.

 

And certainly we're all aware that different states have taken different approaches to pretrial justice, which does kind of comport with the laboratories of innovation. And many of you are probably familiar with New York and New Jersey, for example. Illinois is different from both. I think more similar to New Jersey, especially from the standpoint that Illinois expanded judicial authority to deny bail - not as broad as New Jersey, and I think we'll hear more about that - it's also significant, I think, to note Illinois did not have commercial bail before this act was passed. They did have cash bail and now they do not as a result of this act. One of the other things I think is really important as we compare different states is to consider different jurisdictions within that state. And one of the nice things about Illinois is you get a real wide range. There's many rural areas, there's many areas that have different characteristics than Chicago, and of course New Jersey is a very urban state, so it's somewhat different there and giving us a broader spectrum of types of communities to look at and what resources they need to implement something like this, and that's I think finally one of the things we're really going to hear about today is if for example, you have more hearings on whether bail should be denied, what does that mean in terms of the bandwidth that's required for judges, for prosecutors, for indigent defense in order to fulfill those responsibilities? So with that in mind, I'd like to first turn it over to Bob Berlin to give the state's attorney's - given that they, of course, prosecutors played a major role in some modifications that were made to this act before it actually was finalized. So Bob, I look forward to your comments.

 

Robert Berlin: Thank you, Marc. It's a pleasure to be here and happy to share some thoughts about how this law is actually working in Illinois, specifically in DuPage County. So everyone understands, in a detention hearing, a judge will have three options assuming that the state files a petition to detain, that's the first requisite. Without a petition, the judge does not have any options other than to release or release with conditions. But a judge can release someone, they can release with conditions, or they can detain if the state files a petition and certain findings are met. And there's three general findings that have to be proven by clear and convincing evidence. The burden is on the state to show, number one, the proof is evident or the presumption great that the defendant committed the crime. Secondly, that the defendant is a danger to another person, persons, or the community or is a woeful risk of flight.

 

And thirdly, that there are no conditions or combination of conditions that can mitigate either the threat to person, persons or the community or that woeful risk of flight. All of those have to be proved by clear and convincing evidence. So what we're seeing so far, and the law has been in effect since September 18th, 2023 statewide in the state of Illinois, 64% of petitions that have been filed have been granted by judges. Our experience here in DuPage County, again, which is the second largest county in Illinois, we are the county just west of Cook County, just West of Chicago, we filed 925 petitions. 400 have been granted, that's 43.2%. So it is significantly lower than the statewide average. And however, I believe that the reason for that is that we are filing so many petitions. I am not going to blame our judiciary. I think they're very good and they do a great job, but these are robust hearings and they're making very detailed findings. Here's what we're seeing. For violent crime, I believe this law is working extremely well. For people charged with murder, hijacking, armed robbery with a gun, aggravated criminal sexual assault, armed habitual criminals. These are repeat gun offenders. We are almost at 100% of our petitions are getting granted, so the violent criminals are getting detained. And remember they do not have the ability to post bond.

 

So that does make the community a lot safer. Where I believe we're seeing some deficiencies are crimes like burglary, retail theft, possession of a stolen motor vehicle, organized retail crime. These offenses, for the most part, judges can only detain if the defendant is a woeful risk of flight, and that's a difficult standard to prove unless the person has missed court numerous times before or there's some evidence that we have that we can show the judge that the person is indeed not going to show up in court. In many of those cases, I know that judges here have experienced frustration that they're unable to detain because they do believe in some of these cases that the person is a threat to the community, but their hands are tied because of the law. So just to give you some examples, for a retail theft, we filed 25 petitions.

 

Only one has been granted. For possession of a stolen motor vehicle, 10 petitions, zero have been granted. For burglary, it's 129 petitions and only 20% or 26 of those have been granted. So that is an issue. What we're also seeing is a huge percentage of the detentions and the petitions are on domestic batteries, and the laws are actually very strong when it comes to domestic violence because a misdemeanor domestic battery is a detainable offense under the dangerousness standard. And about a third of all of our petitions are domestic batteries or violations of order of protection, and it's about 34% of those petitions that have been granted here in DuPage County. Now that may seem like a low number, but again, for the most part these are misdemeanor cases. And remember, we have to prove all three of those factors by clear and convincing evidence. So overall, I think the law is actually working the way it was intended to, which is for violent criminals who are truly a threat to the public, they're getting detained.

 

It's some of these other crimes, again, where I think we can use some improvement in the law. And Mark, you mentioned New Jersey. New Jersey does allow judges a lot more discretion in a wider variety of offenses to detain if judges find that someone's a threat to the community. And I've been pushing for that from day one and continue to push for that because I'm a firm believer that the person in the best position to make a decision on pretrial release or detention is the trial judge. The trial judge, an experienced judge who's presented with all the facts and the arguments from both sides is in the best position. And that's where I'm hoping that we get. But again, at this point, the first six months of the law, I don't think from my perspective that there's been any enormous surprises.

 

Marc Levin: Can I just ask one question before we move on to Professor Olson? Could you address what changes were made during the debate on the Pretrial Fairness Act, the request I think of you and other state's attorneys?

 

Robert Berlin: So the biggest change was to the dangerousness standard. The original standard in the Pretrial Fairness Act did not include a threat to the community. The state would have to prove someone was a threat to a specific, named individual, that standard was changed to include a threat to a person, persons or the community. That was very significant. And the other major change was it greatly expanded the pool of offenses where judges would have discretion to find that dangerousness standard and actually detain someone.

 

Marc Levin: Yeah, that's very helpful to know. Professor Olson, I want to turn it over to you now.

 

Dr. David Olson: Great. Thanks again. I appreciate the opportunity to participate in this. So I want to give you a little bit of background on the research that we're doing at Loyola University to evaluate the implementation and impact of the law. We're doing a four year long-term process and impact evaluation of the law. As the state's attorney mentioned, he represents DuPage County. There's 102 counties in Illinois. Each one of them is essentially implementing the law in their own way with their resources with what they see as priorities for cases that they want to seek detention on and using the resources that they have locally. So I think one of the important things to recognize is this is a statewide law, but every jurisdiction is going to be implementing things a little bit differently, and that's some of the stuff that we're seeing early on with the research that we're doing.

 

As you pointed out, Marc, most counties in Illinois are rural. There's 102 counties, 72 of those are considered rural jurisdictions. And from what we've seen early on, the implementation of the law looks different in rural versus urban areas, and stakeholders in those rural jurisdictions have different concerns about the potential impact of a law. So for the research that we're doing, we're focusing on a representative group of counties that reflect the diversity of Illinois in terms of geography, and we're doing interviews with stakeholders, we're analyzing a lot of data, we're doing focus groups. We're also interviewing individuals who are going through the pretrial process to understand from their perspective what they see about the changes in the policy. So a couple of things just to frame a few of my comments. As State's Attorney Berlin mentioned, there's certain offenses that make an individual eligible for detention consideration.

 

Importantly, most people arrested in Illinois are not eligible for detention because of the nature of their charges. And State's Attorney Berlin mentioned the obvious ones, murder, the non-probationable violent crimes along with domestic battery offenses, in addition to those, illegal possession of a firearm by someone with a prior felony conviction falls into that eligibility net. But a large number of crimes that represent the volume of cases that oftentimes the justice system deals with are not detainable. Illegal drug possession, theft, those kinds of things in most instances are not detainable unless it reaches a level where based on the law, the offense is non-probationable where the person faces a mandatory prison sentence. So I think that also reflects some of the things we're seeing across the state in terms of the impact because there are many communities in Illinois that don't experience a lot of armed robberies or homicides or sexual assaults, but they do experience a lot of drug possession cases, for example.

 

So one of the things that we're seeing that I think impact the degree to which prosecutors are seeking detention is as Mr. Berlin mentioned, the extensive amount of time that's involved in doing these hearings. So as part of our research, we looked at practices prior to the implementation of the law, and now we're looking at it since the implementation. And one of the things we're doing is we're going to court and we're observing these hearings to determine how long they're taking, but also how is the content of those hearings and the nature of those hearings different? In the places that we've observed, these hearings are essentially taking at least twice as long as a previous hearing where the state was seeking a monetary bond amount. Just to give you some context, in Cook County, where Chicago is, prior to the law, these hearings took about three to four minutes when bail was being sought, when detention is being sought now, it's taking upwards of 15 minutes, in some instances an hour. In many of the jurisdictions, we've seen these hearings going from one or two in the afternoon till after six o'clock, and part of that is because of what the state's attorney articulated that needs to be addressed and covered.

 

So there's a lot more scrutiny of evidence, but we're also seeing a lot more variety of issues being raised by both the state and the defense. Previously it was pretty much "Here's what the offense is", and the defense would mention something about ties to the community. Now there's a lot more discussion about the evidence, about the nature of the stop that might've led to the arrest, so there's a lot more substance occurring. Prior to the implementation of the law, there were a number of prosecutors across the state that said that they would seek detention on every person that was charged with an eligible offense. We're not seeing that. And I think in part it's the realization that they can't, that there's not the ability to have that many hearings. And so State's Attorney Berlin mentioned the variation across the state, in the rate at which detention is being imposed. There's also a lot of variation in the rate at which detention is being sought. And again, that reflects the diversity of the state, the priorities of the state, but also the resources available to practitioners.

 

One of the arguments for the change to the law was to address unnecessary pretrial detention. And so we've been focusing on what has changed with the number of people being held in jails pretrial after the first six months of the law, we've seen jail populations statewide decrease around 10 to 12%. So it dropped somewhat. It didn't drop a hundred percent like some predicted, but it's also something that's important to keep in mind, that we're relatively new into this policy. So as we've looked at individual counties, we've seen some counties where the jail population dropped fairly dramatically within the first couple of months, and the jail populations are now increasing back up to the level they were prior to the law. And part of that reflects the fact that prior to the law, most people who were admitted to jail were released within a week. They posted their bond and they were released.

 

Now we have fewer people that are being held, but they're staying for longer than they would've under the prior system. Essentially they can stay until their case is resolved, which even for the simplest of misdemeanor cases, the domestic battery cases that the state's attorney mentioned, those could still take a few weeks before they reach a resolution, whereas under the cash system, most individuals would post bond within a few days. The other thing that we're seeing is a different impact in jails depending on the size of the jurisdiction. The jail population in rural communities is down around 20% compared to the more urban areas, and a lot of that reflects the nature of the cases that they encounter. In parts of Illinois, in southern Illinois and rural counties, the majority of their criminal cases involve illegal possession of methamphetamine, and those offenses for the most part are not detainable because they're probationable and they're not crimes of violence.

 

Contrast that with a county like Cook County and Chicago, about a third of their cases are illegal possession of a firearm, and so obviously there's going to be different rates at which detention is sought, but in the rural jails, they're not detaining those individuals who previously they would've at least for a few days or a week, and that's resulting in a larger drop in their jail population. One of the things that the policy exposed, at least when it was being planned for, was the challenges faced in a number of Illinois counties with respect to some of the elements that were envisioned to be in place as part of the law. So one of the things that's important to point out, again, Illinois is a diverse state. Most of the states or most of the counties in Illinois did not have any pretrial supervision capacity prior to this law being passed a couple years ago.

 

In addition, most counties, because they're rural and small, do not have full-time public defenders. And so some of the elements of the law were that the judge had to be essentially weighing what the options were in terms of release or detention, and one of those things is, are there other means that can ensure public safety? Well, without any capacity of pretrial supervision, obviously that would limit the options that judges had. So it was something that was recognized before the law, but the law being passed really expedited the need for the state to address it. So a new state agency was created called the Office of Statewide Pretrial Supervision. They were operational in terms of providing supervision at the beginning of 2023, and they were serving primarily counties that had no capacity prior to that to provide any type of supervision. The other thing is that the law requires that there be defense representation at these early hearings.

That wasn't the case previously, and so again, a lot of counties didn't have sufficient public defense resources, so the state appropriated $10 million that was distributed across all the counties except for Cook to try to bolster their public defense services. I think most would still say that that's not sufficient, but again, I think it's important to recognize that there were some things in place that if those hadn't been established prior to the law, would've created a lot more challenges to its implementation. The last thing I'll mention - and then I'll turn it over to the judge - is one of the things that we have seen is the drop in the jail populations across the state have been met with a dramatic increase in the number of people on pretrial supervision, and it varies from county to county. In some counties we've seen the drop in the jail population made up for by more people being put on pretrial supervision, but in some counties, we're seeing the number of people on pretrial supervision increase a lot more than the drop in the jail population.

 

You have, I think, a couple of interesting factors. One is the use of pretrial supervision as a safety valve, or as a mechanism to ensure that people released have some type of supervision, but it's also a number of counties that never had that as an option before, and so they're using it in ways that other counties might not. DuPage County where the state's attorney's from, Cook County, they have had pretrial services in place for a long time, so it wasn't something new to them, it wasn't an innovative strategy. It was something that they were very used to. And so in some places we're not seeing as much of a shift in the use of pretrial supervision. I think I'll stop there and turn it over to Judge Doherty and look forward to the questions.

 

Hon. Eugene Doherty: Well, thank you for inviting me to participate in this discussion today. As an appellate judge when the act took effect, I have something of a bird's eye view over the process, which is an advantage, but it's not the same as having boots on the ground perspective like State's Attorney Berlin does. But I'll share my perspective from the appellate level. Before I do that though, I think it might be useful to understand where we came from before the PFA. What was the change from? What did we have and what was it replaced by? So on paper, on paper, the judge's decision in a bond court prior to PFA when we had cash bond was binary. You would release or you would either detain - under a very small list of offenses where somebody could be detained without bail - or you would release, and commonly bail was considered one of the conditions of release.

 

So that's on paper, binary. In reality, over the years, bonds were being set at an amount that was not intended to be paid, in some cases. If somebody who lacks resources is given a one million dollar bond, which in Illinois means they must pay a hundred thousand cash, that's exactly the same as a detention decision. There's just not a possibility of that person paying the bond. And so what it means is there was really a three-tiered decision. You either detained on a very small list of offenses, released with conditions including a bond that could be paid ,or you set a condition of bond higher than you think that person would be able to pay. So that becomes in effect a three-part system. When this whole process was being debated, and I was a chief judge in my county at the time, what you began to hear, especially as it became clear we were moving away from cash bond towards some other system, what you heard was not so much a defense of cash bond.

 

There were some people who believed we should retain it or retain it in part. If you look at the federal system, the federal system has some potential for cash bond, but it's just, it's really a detain or release system. That wasn't really the place that people found to oppose the change. It was really a "devil's in the details" kind of situation. How will it work? How will the detention decisions be made? What are the new rules of the road for holding somebody or keeping somebody if we're not going to use bond? Well, I will tell you as a judge, this is the perspective I have to take on this. The legislature passed the law, the Supreme Court passed on the constitutionality of the law. My only job under my oath is to enforce the law from this point going forward. So I want to be clear, I'm not advocating for whether the law is good or bad or should be changed or kept the same, but I can tell you that there are some issues that come up from time to time that certainly seem like other people might want to think about.

 

One is at the local level, especially in some of the small to mid-size communities, the time constraints on a hearing. For a serious crime, you would have 48 hours from the time of the defendant's first appearance for the trial court to have this hearing. For less serious crimes, it's 24 hours, although they're probably going to be less subject to the request for detention. 48 hours is a short time, especially if the person's first court appearance was on Saturday as it can be in some jurisdictions. And so what it means is 48 hours literally means that if Saturday court was at 10:30, this has to be ready to roll by 10:30 on Monday. That can be difficult for some jurisdictions to meet, maybe even for jurisdictions the size of DuPage County. I'll be interested to hear State's Attorney Berlin's perspective on that. In the federal system, it's not nearly that tight. So we're asking for much, much more of our prosecutors and law enforcement and defense counsel to be in a position to have these lengthier more meaningful hearings, and yet we're giving them a tighter time to do it than they give the federal courts, which is usually in that three day window, without counting weekends.

 

That's something that I think deserves Loyola's continued study from Dr. Olson. There's some things that we have struggled with at the appellate level, things that you try to fit together in your head and they don't quite line up. As State's Attorney Berlin mentioned, the standard of proof for these required elements is by clear and convincing evidence, and it's certainly possible that there could be evidence in the form of witnesses or videos presented, but the statute also allows the presentation from the state to be on the basis of a proffer. Well, in my experience, that is covering 95% of what is presented at these hearings, at least in the jurisdictions that come through the system to our Fourth District Appellate Court. And so I'm not sure what it means to say that somebody proved something by "clear and convincing evidence" if they didn't introduce evidence. It's almost saying the standard is by clear and convincing description of the evidence when it's presented by a proffer, that's something that has presented some difficulties just in terms of legal analysis.

 

We've worked through them, as we do all the others. And then finally, I'll just share with you what has been a standing issue for the appellate court since the implementation of the act that we think we may have turned the corner on. There was a lot of attention to the burden that this act was going to impose on local courts, probation officers, state's attorneys, public defenders, and I will absolutely agree with anyone who says it's those folks on the front line who really bore the burden of implementation of this dramatic change. And so there was a great deal of time and a not small amount of resources that were allocated in most instances to helping the frontline stakeholders implement this. There were even some additional resources - millions - given to the appellate prosecutor and appellate defender with the idea that there might be more appeals. There were no resources to the appellate court. I don't think anybody anticipated the volume of increase in appeals of these cases. So going back to the pre PFA days, if somebody had a bond set or a bond denied and they didn't like it, they had the same right to appeal that they had under the PFA - at least to start with.

 

And our review of the data suggests that in the 10 years prior to the PFA being adopted, there were, on average, 17 such appeals in the state of Illinois statewide per year, 17 per year. So I think it was viewed as a, "well, this case is out of bounds. I think we can make a case. It's an abuse of discretion." And so in rare cases, they would be filed and it would help keep the rest of the system in line because it would establish kind of the guardrails. When PFA came on board, that was not the ethic. Filing an appeal was extremely easy, even if it wouldn't ultimately be argued effectively on appeal because in more than half of the cases there was no equivalent to an appellate brief filed, but filing a notice would trigger all of the obligations of the clerk to prepare a record, the court reporter to prepare a transcript in the case of a defendant's appeal, the state to file a responsive pleading and then the court to go through all of that and come up with a decision.

 

But the numbers were kind of outrageous. Instead of 17 a year, we had about 78 per appellate judge, plus double that in terms of non-authoring cases. And so when you look at the whole volume of those cases in the first, I want to say four or five months, I always have to check this because it just seems so, I don't want to overstate it. And it seems so much - we had a 25,000% increase in the number of appeals compared to the pre PFA days. By most accounts, that'd be pretty big. That's statistically significant. So the Supreme Court, seeing that this was happening in real time, put together a task force that I was asked to serve on, and we came up with some procedural changes recommended to the Supreme Court and the Supreme Court very promptly implemented them. And just to summarize, what they mean is they're trying to make the process of an appeal more meaningful in its content because if we're just doing these pro forma appeals that don't end up being really executed at the appellate level, we've created all the work and have really misled the defendant into thinking you've got an appeal because it really isn't if it's not being adequately argued. So we hope that this new series of rule changes that took effect the middle of last month will strike a little bit better balance between volume and the quality of appeals.

 

Marc Levin: Well, that's really helpful context for this. And actually before we move along, I'm hoping perhaps you and others can feel free to weigh in. Could you describe the appeals process and also does that - now if after let's say 72 hours instead of 48, there's new evidence - either that might make it more questionable that you got the right defendant or might bear upon their risk level that didn't exist at 48 hours, now I assume that could just be handled at the district court level - that's separate from what you're talking about in terms of the appellate process. But could you kind of give a timeline of how this would work while this person is still in jail? Of course, being able to either through their attorney take new evidence that may come to light or for that matter, the prosecutor, there may be new evidence that they have to bring, but how does that work?

 

Hon. Eugene Doherty: I'm sure Bob could fill us in with better detail. I will say this, that it's my understanding a defendant can always move to change the bond status. It's a little bit of an awkward - if maybe an open question - what does the pendency of an appeal do to that? But let's put that aside for the moment. The other unusual thing about this statute is it says every time the case is in court after the person is detained or even released on conditions, you've got to continue at every hearing, the judge must revisit detention. I'd love to hear from Bob how that actually plays out in practice because it doesn't say you need a change in circumstances. It just says you just revisit it. No party has to file a motion. It's just something that - it's on the agenda every time you come to court. I don't know how that works in practice or whether it really happens with regularity in practice. I dunno if Bob, do you have any better insights on that?

 

Robert Berlin: Yeah, so our judges do make the finding. They address it every single time the case is up. It is the role of the state's attorney in the courtroom to remind the judge, "Hey, we have to address detention." It's a form order and there's different boxes that judges can check if no circumstances have changed. So that is happening. I can say this. One thing that we are seeing, and it seems more so in the domestic battery area, is there's a higher percentage on those cases where the defendant is detained initially at first appearance court, but then at the next court date, a judge revisits that detention and then releases them with conditions. So we are seeing that more so in the domestic battery area.

 

Marc Levin: David, did you want to address that?

 

Dr. David Olson: Sorry, I hit mute. Yeah, I think that's an important point. One is that when the decision to detain is made, that's not necessarily permanent, that it is revisited, it's required to be reconsidered. I think what State's Attorney Berlin brings up is that you could envision an example where at the initial detention hearing the decision to detain is based on where the individual would likely return, or where their residence is. After a period of time, they may be able to make arrangements where they have another place to live and that somehow mitigates risk. So it is something that we have to recognize that the decision to detain is not final, but also if the person is not detained, the ability to detain them later on down the road is an option. Particularly if an individual violates the conditions of their release, they can be held as a sanction for that violation. Again, if there's a hearing that finds that that's necessary.

 

Marc Levin: I think I may know the answer to this, but because at the Council we're very reluctant to make kind of grand pronouncements on the impact on crime as we know so many factors affect crime and also even recidivism. But is there, and it may be different especially with what we heard earlier from Mr. Berlin about violent and property crime, but is there any initial sense of whether this is having an impact one way or the other on public safety?

 

Dr. David Olson: I'll at least answer it from an empirical standpoint. It's too early to say. I think one thing that's important about the context within which this policy was implemented is it went into effect in the middle of September, and what we've been experiencing is the normal seasonal pattern of crime. Crime goes down in the winter and then it starts to go up again. We haven't implemented the Pretrial Fairness Act during a period of time like the summer where we have a much higher volume of cases that the system has to deal with. The other thing that we need to understand - and that's what our research is hopefully going to shed light on - is there really a net change in the degree to which individuals are held pretrial? We did some research a number of years ago looking at a policy in Cook County where they changed some of the considerations made about bond.

 

They had to make it affordable and things of that nature. It really didn't change the overall rate at which people were being detained. It was just changing how they got out and changing by a day or two, how long it took them to get out. So I think that's part of what we have to come to some understanding of. Has this really changed the overall rate of pretrial detention, and if so, did it change it to a magnitude that we would expect it to have any kind of impact on crime? But that is something that we're going to look at. We're hopefully going to be able to dig into that data in the next six to nine months now that we've got some time under it.

 

Marc Levin: Well, one of the other things, I think pretrial supervision came up, the increased demand for that, and I'd be interested in your sense of whether, and this may vary based on county, there's the bandwidth to deliver that pretrial supervision. And the other thing, kind of a procedural question is if somebody goes on pretrial supervision for something that's a non detainable offense, but then they commit technical violations like absconding or other things, can they then be detained prior to trial even if the original offense was non-detainable?

 

Hon. Eugene Doherty: Well, if it's a non-detainable offense, I think it remains a non-detainable offense and the statute speaks in terms of sanctions that can be imposed.

 

Dr. David Olson: Which can include a period of detention.

 

Hon. Eugene Doherty: As a sanction, but not up through trial.

 

Marc Levin: Right, the affixed time, yeah.

 

Dr. David Olson: Right. It's up to 30 days.

 

Hon. Eugene Doherty: Yeah, it's like a contempt,

 

Robert Berlin: Right. It is, I believe, one of the anomalies in the law is we have defendants who are on pretrial release and they commit another crime that's non-detainable, so they have to get conditions on the new offense, but then we can file a petition to revoke if the initial crime was a detainable offense, but they were released, we file a petition to revoke and the judge can revoke their release on the first offense. So it is kind of an anomaly in the law in that regard.

 

Marc Levin: Yeah, I'm kind of curious. There's some academic research that essentially shows if somebody's doing well on pretrial supervision, a court - where they have an option between probation and prison - is more likely to go with probation than they would otherwise because they say, "Well, this person's been, they're holding a job, they're doing well with their family, and they've been on essentially pretrial supervision, which is more or less similar to probation in a variety of ways." So I'm wondering, and I guess you get credit for that time as you would get credit for jail time if you were detained, so I'm kind of wondering if you expect to see any impact on probation, on the probation side of it, post-adjudication by virtue of those factors?

 

Dr. David Olson: I think that you don't get credit for time served if you're on just pretrial supervision. If there's an element of electronic monitoring, then you do get credit if you were ultimately sentenced to a period of incarceration. I think what you raise is an interesting question that we're interested to see what the outcome is, right. Does this pretrial release or lack of detention alter sentencing practices? On one hand, it could be what you described. The person was released, didn't have any violations, so we feel more confident putting them on probation. From interviews we did, there's also some prosecutors that suggest that for certain crimes they want to see a period of incarceration, and previously that would've been accomplished through pretrial detention. If now the individual has not been detained at all and the prosecutor still feels it appropriate to impose that type of a sanction, they may seek a prison sentence where previously that would've just been the credit for the time they spent in jail. And again, I think it's going to vary from county to county, from prosecutor to prosecutor and how they weigh or how they look at that.

 

Marc Levin: Okay and would - oh, go ahead.

 

Hon. Eugene Doherty: I think what's interesting too is to see where the use of electronic monitoring shakes out in this process. Electronic monitoring can be kind of the Goldilocks factor, that detention is too hard and release is too soft, but maybe this will be just right. It can be a sort of a seductive middle ground, and I think a lot of research would suggest that's not how it should be used, that there should be a decision made about detention and release and then a consideration of will electronic monitoring be useful in monitoring those conditions of release to take that burden off pretrial services and use it in the appropriate case? There are certainly jurisdictions that have gone much more aggressively toward electronic monitoring and then become overwhelmed with the amount of data they get that if you do put somebody on electronic monitoring, you've got to have the infrastructure to deal with all of the data.

Some of the feedback you get will be real, others will be not real. Someone's got to make a decision about what it is. And there are a number of jurisdictions that have just gotten totally overwhelmed. And so it just kind of is a lesson to make sure that jurisdictions are using it thoughtfully and for the right cases rather than even a defendant arguing, well, if I think I might need to be detained, I'm going to offer this up as a middle ground for the judge maybe to land on. That's probably the wrong use of it.

 

Marc Levin: Professor Olson, is your research going to track at all to what degree people who are denied bail - end up getting - denied release, end up getting probation? And I suspect that's not going to be much given the offenses we're talking about, but certainly in Harris County, which was much different because we were talking about misdemeanors, part of what led to the Fifth Circuit ruling and the changes that came from that was that so many people were put on probation for misdemeanors who had already served sometimes a year or more, but many months in jail. And so that was kind of a wake up call that there was a problem. But I would imagine given the offenses we're talking about here, that wouldn't be common. I mean, of course the illegal possession of a gun, there's many different circumstances that I think some of us have heard in the federal system of some guy who was hunting turkey who was 75 years old in Tennessee, and he had had a drug conviction when he was 20 and was subject to a mandatory minimum. Obviously we know that's probably not the most common type of case. We know there's a lot of cases, obviously of people involved in serious gang activity who recently had convictions of violent crime and now have a gun and there's reason to be concerned, but there are many different contexts that that offense can come up in. But I'm curious if there's a way of tracking whether what percentage of people might end up getting probation who were denied bail?

 

Dr. David Olson: Yeah, we're going to look at that. I think the important thing is there's, I call 'em a couple groups. The domestic battery cases that the state's attorney referenced - those account for a large volume of the detention cases, in most instances, they're misdemeanors. They're not going to result in a prison sentence, by definition. And then you have the group of people that are being held that have always been held for serious violent crimes that end up going to prison regardless. I think the more interesting thing that we're tracking is going to be what happens with individuals who normally would've had some pretrial detention that were charged with drug possession, or theft, or drunk driving who do go to prison, but now they're going to prison with no credit for time served. And so while they didn't spend time in jail and therefore the jail population went down, when they go to prison, they're going to have a longer period of time that they have to spend in the Illinois Department of Corrections because they're coming in with so little credit for time served. Anecdotally, we've also heard that some courts are reluctant to impose electronic monitoring because the individual will be getting credit for time served, and they want to make sure that at the point of sentencing, if they want to incarcerate them in prison, that they're not going to go in with too much credit for that electronic monitoring time.

 

Marc Levin: Yeah, there's definitely a lot of complexities and there's some really interesting articles about the gun possession, illegal gun possession docket in Cook County that certainly some of them are regulatory offenses where someone didn't take the target practice or the licensing details, and it's a long drive, especially if you don't have a car, to go to the nearest shooting range or whatever to the nearest license place to do that. I mean, of course I speak from Texas where we have anyone can carry without a license. It's just a very different landscape in terms of gun policy. But I know we're coming up against the top of the hour, but I wanted to give you each a time to make some closing comments and just kind of say, what are the next steps forward for Illinois? And frankly, what can the rest of the country learn from this so far?

 

Hon. Eugene Doherty: Well, I'll just say that this is our system. It was adopted as an experiment, and I think that it's fair that the public should feel confident that those in the legislature will gather the information that people like Dave will compile and make sure that we're happy with how it's working. As I mentioned before, that's a decision for the public, for their elected representatives, not for the court. In the meantime, we'll continue to work as best we can under the law as it's been given to us.

 

Robert Berlin: Yeah, so as I said earlier, I think by and large, the law is working fairly well. That being said, there are some changes I think that should be made that can make this law a lot stronger, and I constantly make the comparison to the state of New Jersey, because in speaking with prosecutors, judges, defense attorneys in New Jersey, by and large, most people believe that their law is working very well and they have a very high percentage of defendants who are appearing in court. But I think the key difference is New Jersey just gives judges a lot more discretion, and again, that's where I'm hoping that we go in Illinois to provide for greater judicial discretion and allow judges to make these decisions, not the General Assembly.

 

Dr. David Olson: Guess my closing comments would be policies are never as bad as the opponents make it out to be, or as great as the advocates argue it will be. I think in this case, we've been asked, what are our predictions? There's only one prediction I'm comfortable making and was comfortable making before the law went into effect. People will no longer be required to post money to secure their release. That's the only thing we could guarantee. Our jail population's going to go up or go down or stay the same. We don't know yet. And I think it's going to vary from county to county. Before the law was implemented, there were concerns that everybody was going to be detained or no one was going to be detained. It ends up somewhere in the middle, and I think as blunt as the policy sounds by the outside world, right, Illinois eliminated cash bail and you're either in or you're out.

 

As simple as that is as a description, if you observe the hearings that take place and look at the data that's generated by folks like Bob's office, this is extremely nuanced and complicated and a lot of work goes into every decision. And so I think at least what I would say is don't think that these decisions are being made easily or quickly. There's a lot of work being done to it, and we're just happy to be able to provide what I hope is an objective voice and provide feedback to folks as they're debating the law, so.

 

Marc Levin: Well, this has really been, I think, very enlightening and there's a variety of perspectives, obviously we kind of focused on, I think, what are the perspectives that are most, frankly, that most people have in terms of citizens of Illinois and people in this country. Obviously there's people who think nobody should be in jail, and then of course the commercial bail industry would've liked to serve a hundred percent of clients, and all sorts of perspectives in between, I guess. But I think the vast majority of us recognize that there's a role for, first of all, pretrial decisions are very difficult as we just heard, and time is a major factor, but that it's a matter of individualized assessment and decisions, and it really should not be based on how much money somebody has. I can tell you the discussion in other states like Georgia and here in Texas is very different.

 

In 2021, the Texas Legislature listed some offenses, mostly quite serious ones, but that you can't, the only way you get out of jail is through posting money. And there's some discussion that this session, something will be considered to say, if you don't - except through money bail, you can't get out within the first 72 hours, which I think would have serious legal - would be subject to probably a successful legal challenge in federal court in terms of just kind of amplifying the difference between how people are treated based on whether they have resources enough to give 10% to a bail bondsman or not. But obviously doing it the way you're talking about, through examining this evidence, especially in such a time-sensitive context, takes hard work and of all the parties involved, whether they're prosecutors, judges, defense counsel, and so I think everyone can appreciate that. So I'm really thankful to all three of you for joining us and to our audience, and I will turn it back over to Chayila to close this out.


Chayila Kleist: Absolutely, I'll close, thanks. On behalf of the Federalist Society, thank you all so much for joining us today. We really appreciate you lending us this portion of your days and your expertise. Thank you also to our audience for joining and participating. We always welcome listener feedback by email at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.