Some Observations: Pretrial Hearings Before and After the PFA

A lot changed in Illinois courtrooms on September 18, 2023, the day the Pretrial Fairness Act (PFA) went into effect. The PFA not only abolished cash bail and prohibited the use of pretrial detention in many cases, but rewrote procedural requirements, evidentiary standards, and decision criteria in hearings where pretrial detention is sought. How have these changes been reflected in Illinois pretrial practice? What looks and feels different now that the new law is fully operational? To get an idea, we conducted structured observations of roughly a thousand pretrial hearings during the period immediately after PFA implementation, from September 18, 2023, through December 2023. While we found significant practice variations from one county to another, some clear patterns emerged, including notable changes in the length, substance, and overall tone of pretrial hearings.

We had a baseline for comparison: in June 2022, more than a year before the PFA went into effect, we observed “bond court hearings,” as they were then called, in four counties (Cook, Winnebago, Lake and McLean) to get a sense of pre-PFA practice and establish a context for the implementation of the new law. We reported the results of our observations later that summer—including details like the average lengths of the hearings in each of the counties observed, the bond recommendations of defenders and prosecutors, the factors and arguments typically raised by the parties and cited by the judge, and the ultimate hearing outcomes in terms of bond amounts imposed.

Now we’ve conducted post-PFA hearing observations, using the same instrument, in these same four counties—giving us “before-and-after pictures” of pretrial hearing practice. And while the pictures are preliminary (“sketches” rather than finished “paintings”), they provide some indications of the ways—expected and unexpected—that the PFA may be changing the practice landscape across Illinois.

Duration of Hearings

In the four counties where we observed hearings before and after PFA implementation, median pretrial hearing length did not change dramatically overall. But we did see a significant increase in the duration of detention hearings.

Before the PFA, the bond court hearings we observed were almost uniformly short: between 4 and 6 minutes. Post-PFA pretrial hearings were not much longer, with median lengths in roughly the same range—between 4 and 7 minutes—but only because detention was not an option in so many of the cases handled. “Conditions” hearings, in which the only issues concerned terms and conditions of release, were usually brief, and often uncontested. But hearings in which the state sought detention took longer in all the counties we visited, with median lengths that varied from 10 to 30 minutes. In more complex and contested cases, we observed detention hearings that lasted close to an hour—an almost unheard-of length in the period before the PFA.

Reasons for Judicial Decisions

One purpose of the changes introduced by the PFA was to clarify and focus pretrial decision-making, ensuring that detention and release decisions are based on consideration of the risks posed by the defendant, including risk to public safety and risk of flight from prosecution. While these risks may have been considered in pretrial decision-making prior to the PFA, it was then common practice for judges to issue bond decisions without citing any reasons for them. In the four counties in which we observed bond court proceedings before the PFA, bond decisions were announced without articulated reasons between 49% and 88% of the time.

After the PFA took effect in the same four counties, pretrial decisions unaccompanied by articulated judicial findings rarely occurred, and never in cases in which detention was at issue.

Factors Considered: Cook County

What are post-PFA hearings about? Has the new law fundamentally changed what judges and parties in pretrial proceedings argue over, the facts they cite, or the case characteristics they point to in support of their positions? In Cook County, where we’ve observed the most “before and after” hearings, the answer seems to be yes.

Prior to the PFA, bond court hearings in Cook County were generally concluded quickly, and featured little individualized argumentation. When prosecutors did make arguments in support of higher bonds in particular cases, they most often cited the seriousness of the current charge and the defendant’s prior criminal record. When defenders made arguments for lower bonds or no bonds, on the other hand, they tended to point to the defendant’s ties to the community, jobs, and education. Judges, in turn, when they did indicate case-specific facts or defendant characteristics that motivated their decisions, most often mentioned the defendant’s risk assessment scores and parole or probation status.

The PFA has clearly changed that. Not only were post-PFA hearings in Cook County longer when detention was at issue, they were more substantive, with both prosecution and defense raising a broader range of case-specific issues. Instead of focusing on completely different things, the two sides were more likely to engage directly on a common set of factors acknowledged to be relevant to the detention/release decision. And judges not only invariably cited reasons for their decisions, but those reasons were more likely to relate to the facts and case characteristics raised by the parties.

The Picture Across Illinois

Statewide reforms like the PFA must be operationalized locally, by local officials responding to local needs, priorities, and constraints. Because Illinois’ 102 counties vary in almost every other way, we expect variation in PFA implementation approaches and experiences. And the only way to get a sense of that variation is by close and continuing observation. That’s why, as part of our effort to understand how the PFA is working in practice, we supplement information being gathered from administrative data with stakeholder interviews, focus groups, and hearing observations in counties across Illinois.

We are embarking on a second round of court observations this summer, and will share more of what we’re seeing in future reports. But some patterns and variations have already emerged that are worth noting:

• Evidence proffers versus witness testimony. Contrary to predictions that detention hearings under the PFA would escalate into “mini-trials,” we have seen almost none that involved the calling or questioning of witnesses. Instead, prosecutors in most counties proffer the state’s evidence, and the parties make their arguments for detention or release based on the proffer. This serves to simplify and shorten hearings, even in sharply contested cases.
• Agreement on release conditions. . Another feature that seems to be simplifying hearings, at least in routine cases, is that prosecution and defense often appear to share a common understanding regarding acceptable conditions of release (such as no contact with the alleged victim), so that the judge is presented with no dispute to resolve.
• Preliminary holding on “non-detainable” offenses. The PFA narrows the range of cases in which the prosecution may formally seek detention, but defendants accused of most non-detainable offenses can nevertheless spend a night in jail, if they are booked on a Class A misdemeanor or felony and held until they can come before a judge to be assigned conditions of release. This practice—bringing defendants in jumpsuits and shackles to hearings that must end in release—seems to be rare in most places, and may involve the exercise of law enforcement discretion in individual cases, rather than any general policy. But we visited at least one county in which all defendants seemed to be processed in this way.

Methodology

The findings in this report are based on structured observations of a total of 1008 pretrial hearings in Cook, DuPage, Kane, Lake, McLean, Will, Williamson, and Winnebago Counties, during the period from September 18, 2023 through December 2023. The vast majority of hearings observed (78%) were in Cook County, including its five suburban branches and its specialized domestic violence branch. All hearings were observed in person. Data were recorded by hand using a structured data collection instrument that gathered information about the defendant, the charges, factors and arguments cited by court actors, final decision, and hearing start and end times.

This research is supported by Award No. 15PNIJ-21-GG-02807-RESS awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this publication are those of the authors and do not necessarily reflect those of the Department of Justice.