Illinois Practitioners on Pretrial Detention and its Uses
When and if it takes effect in Illinois, the Pretrial Fairness Act (PFA)—currently stayed pending review in the state’s Supreme Court—will make significant changes in pretrial detention and release practices across the state. The PFA’s outright abolition of cash bail may be its mostly widely noted feature. But the new law will also impose limits on pretrial detention that will require a dramatic departure from historic practice in many counties.
The PFA will limit detention in two ways. First, and most directly, it will impose offense-based restrictions on the availability of detention: no defendant may be held in jail pending trial unless charged with an offense that is “detainable.” Second, it will raise the bar for pretrial detention generally. Under the current system, in Illinois and most other places, simply imposing cash bail as a condition of release effectively detains many defendants—a result that is reached routinely and almost unconsciously, without any special effort or showing. But achieving the same result under the PFA will require an additional formal hearing, definite proofs of dangerousness or fight risk, and a reviewable finding of necessity.
Many Illinois justice practitioners are profoundly troubled by the prospect of these new requirements and restrictions. In our ongoing interviews with judges, sheriffs, prosecutors, defenders, and other system actors across the state, conducted as part of our long-term evaluation of the PFA, we are hearing a consistent set of complaints and concerns about the limits and burdens the new law places on the traditional use of detention. Importantly, those we interviewed work in jurisdictions that range from large, urban areas to smaller, more rural communities. In describing their current practices, and the challenges and dangers of changing them as required by the PFA, Illinois practitioners are revealing a complex range of attitudes and assumptions about the purposes and practical benefits of pretrial detention. Like the practitioner attitudes about the purposes of cash bail that we have explored elsewhere, these help to explain widespread concerns about the changes the PFA may bring, and form an important part of the background of the new law’s implementation.
Doing Without a Familiar Tool
To understand the concerns being raised by practitioners, it helps to think of pretrial detention as a tool. It has official purposes and approved uses, including incapacitating defendants who present a significant risk to public safety and securing those likely to flee prosecution. But over a long period of time detention has been adapted in unofficial ways to meet local needs, and made to fill in for other tools, which may or may not be handy or available.
A striking example, familiar to everyone, is the use of jail as, in effect, a permanent public shelter. As one sheriff in a rural jurisdiction told us flatly, “We don't have a homeless shelter in this county…The jail is a homeless shelter.” And having no alternative, the sheriff admitted, “We charge people with really [weak] cases—you know, knowing that it's thin and terrible. Because we don't know what to do with these folks who are out breaking into places. And it's not out of criminality. It's survival.”
The idea that pretrial detention is, or can be, a benefit to the people detained—that it may be inhumane to deprive them of it—is one major theme of practitioners’ reservations about the PFA. Another is that brief “timeout” periods of incarceration, to resolve crises or simply interrupt offending, may be indispensable to public order. A third is the notion that post-arrest jailing serves as a simple and immediate sanction for crimes, a rough and ready practical deterrent that official punishments cannot provide, and the public cannot do without. And a fourth is that the justice system itself, having grown to depend on defendants to resolve low-level criminal cases via voluntary pleas, will break down without the added pressure provided by routine pretrial incarceration.
Taken collectively, these amount to powerful arguments, at least in the minds of many of the people we interviewed, for leaving the pretrial detention system alone. Because they are important to understand, we present them in more detail below, mostly in the words of practitioners themselves.
An Unofficial Public Service
“If someone gets arrested on possession of methamphetamine and they are high on methamphetamine, if we let them out that night, they're going to stay high on methamphetamine. If they stayed in jail for 10 days, unable to post bond, maybe we can get them into rehab, maybe we can get them help, maybe we can get them talking with someone….”
The words are those of a State’s Attorney from a specific rural county, but they might have come from almost any stakeholder we interviewed in rural parts of Illinois. In what has been called the heart of “America’s Meth Belt,” addiction is rampant and services are scarce. Even when treatment is offered, it is often refused. “In that moment, they don't want help, they don't want to rehab,” the same prosecutor continued. “They want more meth. That is our biggest problem here.”
Which is where the jail comes in. In this prosecutor’s county, we were told, the standard bail amount in meth possession cases is $300, with a $30 offset per day in custody. “Most of the time they post it,” the prosecutor told us. “If they don't, that gives them 10 days to sober up.”
This view of the upside of jail, at least for individuals who have a substance use disorder, is not limited to prosecutors. Several defenders in rural jurisdictions told us essentially the same thing. “They need time removed from that cycle of death,” one said, referring to addicted clients. “They just go there and they dry out. And sometimes that's actually what some people might need.” Another defender summed up addicted clients’ thinking this way: “‘I need out today so I can get high.’ And so with them, [under the PFA] they're gonna get out today, and they're gonna go get high. And they don't care anything that I say about treatment or getting them into care. So that population will be hurt by the new law.” A sheriff we talked to—in addition to operating a de facto homeless shelter, as described above—also lodges many people whose lives have been shattered by alcohol, meth, and other drugs. “We routinely arrest those people, not because we want to pile a case on them [but] because they're a disaster. We get them in, they get some health care, they spend a few days in jail, they eat. Their cases eventually, either—you know, maybe they're recogged out [i.e. released on a recognizance bond] after a few days, maybe it's not even formally filed, you know. But there are some people who need some time in jail and I mean, that's a public service, an unofficial public service that the police provide.”
Again, the sheriff acknowledged that jailing people with substance use disorders was far from an ideal solution. But what was the alternative? “What do we do with these people who are an absolute disaster…? We can't find them a place to stay, we can't give them money… But what we can do is bring them in jail for about four days or five days. And they shower, they get some clean clothes, they go see a nurse, they eat….”
An Adult Timeout
Of course, meth and other illegal drugs are not only a scourge to those that use them. They are major drivers of crime, according to those we interviewed. One prosecutor in a rural community, reviewing the DUIs, burglaries, thefts, and other common crimes that make up the bulk of the local criminal caseload, estimated that nine out of ten were directly correlated to drug or alcohol use: “Even if it's a burglary, they were usually high on methamphetamine and they broke in somewhere. If it's a domestic battery, they were drunk or high on methamphetamine and they beat up their wife.” As a result, this prosecutor saw pretrial detention of addicted defendants as a benefit to the community as well as to the defendants themselves, and predicted an increase in local crime if the PFA mandates pretrial release in such cases: “I think it's going to go very poorly. If you have more people on the streets who are possibly high on drugs, or are high on methamphetamine, they're more likely to commit crimes.”
Even for those who are not addicted, pretrial release may mean, as one sheriff expressed it, “I'm out and I get to keep doing what I'm doing.” We heard versions of this idea from many others we interviewed: that detention may sometimes be needed to interrupt cycles of offending. “We see some defendants that get in like a snowball period, where they're off the rails,” another prosecutor told us. “If they have another opportunity, the way they're running right now, they're gonna do something else that's going to bring them before law enforcement quickly.”
“The last thing I want to do is take someone away from their family,” yet another prosecutor said, “but in certain situations, someone needs an adult timeout.”
You’re Not Holding Them Accountable
We asked everyone we interviewed whether they thought the PFA’s restrictions and burdens on detention will result in more crime, and many said yes. This can be explained in part by the belief that pretrial jailing is necessary to interrupt crime and incapacitate criminals. But a State’s Attorney from a rural county expressed a different and broader idea of the danger of limiting detention: “I think all the crimes are going to go up if people don't spend a little bit of time in jail.”
Pretrial jailing can be seen as having crime-control benefits that go beyond incapacitation, to include deterrent effects, and many objections to the PFA were explicitly based on this assumption. Pretrial detention forms part of the system of “accountability and consequences for criminal behavior,” as one sheriff put it. Limiting its availability, in this view, or requiring special justifications for its use, effectively reduces a criminal sanction—in fact if not in theory. If offenders must be released after being caught, as another sheriff complained, “You're not holding them accountable other than, hey, look, you know, show up to court on June the 10th.”
“They understand the lack of consequences,” a State’s Attorney told us, referring to those who commit crimes. “They're gonna very quickly know the nondetainable offenses and this erosion of the system.” Of course, pretrial holding is not legally considered to be a punishment, and all the officials we spoke with were aware of that. In a sense, they were simply acknowledging what everyone knows—that nobody likes to go to jail, whatever the official view of its purpose may be. And as another sheriff pointed out, by substituting “a ticket or court date” for what had been the prospect of some time behind bars, “We've lowered the consequences to some extent.”
A Revolving Door
The PFA’s restrictions on detention will send the wrong message to the community as well as potential offenders, many interviewees warned us. “From the general public standpoint,” one prosecutor in a small rural county said of the new law, “they're not going to like it…. Because they're going to see it as a revolving door of criminals getting arrested and being released and getting arrested….” To the public, according to many of those we interviewed, the local jail is supposed to be an institution of accountability for crime. “What they recognize is if it's an immediate detention,” a sheriff explained. “They don't care that they're presumed innocent. ‘Take them to jail, take them to jail’—we hear that every day. So there is some satisfaction that the public receives by someone being incarcerated…. They're in jail because they violated the law. They don't care about the innocent till proven guilty.”
Prosecutors were particularly apprehensive about the way PFA changes may affect public perceptions of the justice system’s effectiveness. “The State's Attorneys are really going to be the ones [who] are going to have to answer questions,” said one, “like ‘Hey, so-and-so did a residential burglary in my house last night. I saw him at the grocery store this morning. What the heck's going on?’” Another prosecutor foresaw having to tell constituents, "Hey, I didn't just quit prosecuting people, don't vote me out in two years. I'm still doing my job. The judge is still doing his job, it's the law that changed. And so I'm sorry that your neighbor who was high on meth yesterday and got arrested and was released, and cussed you out again today in your yard, was arrested again today, high on meth, and was released. I'm sorry, I'm still doing my job. I'm handcuffed on how to keep you safe.”
As some of these responses suggest, this problem may be more acute in smaller, more rural counties, where residents generally know one another and can see “the same people reoffending and being very visible in these small communities doing so,” as one prosecutor put it.
“We deal with the same people over and over every day,” a sheriff in one such community said. “They don't disappear, they're not lost in the masses, they're here. And we know them and they know us. And it's just a revolving door of the same exact people. And sometimes those folks need to spend some time in jail.”
Leverage is Everything
Whatever its effects on criminal activity, the PFA will change the way Illinois criminal cases are processed and resolved, interviewees predicted—perhaps dramatically. Statewide, about 87% of felony convictions were achieved via guilty pleas in 2021. Collectively in counties outside of Cook, it was 97%. And routine pretrial incarceration had a lot to do with that, according to both prosecutors and defenders we interviewed.
“I think it's going to have a significant impact, for better or worse, depends on how you view this,” a State’s Attorney from an urban county told us. “Someone in custody is so much more likely to do one of two things: either plea, or two, get the matter set for trial and done. And so with more people out of custody, there's just less motivation to plea and that's going to be fairly significant. I think our timeframes are going to extend.”
“Cases move faster when people are in custody,” another prosecutor agreed, but added, “I think you will see violent cases being resolved faster, because those people are more likely to be in custody. I think that is a good thing.”
But pretrial jail holding influences more than just the pace of guilty pleas. “Leverage is everything,” one Public Defender pointed out. “And we have an expression [here], you know, what we call shooting a bird on the ground. In other words, if you've got a quail that's on the ground, it's easier to hit than the quail that's flying.”
It makes “all the difference in the world,” both practically and psychologically, whether a client with a pending case is in or out of jail, a private defender told us. Clients in jail “are willing to compromise their long-term interest in return for short-term gain.” Most of the time, that means rapid pleas. Taking that pressure off “would mean a systemic shift away to a new model.”
Prosecutors largely recognize this. When a defendant is in pretrial custody, a State’s Attorney admitted, “That's gonna be one of my easiest cases to plead out, because the guy's in. So he's doing the time right now, boom, we're done and also, he or she has a motivation, because they haven't been able to post and they have that motivation. For better or worse, right? Remember, ninety or some percent of the time in our opinion, they're guilty. So justice is somewhat served.”
It’s a short-cut, in other words. “I mean, the system really relies on people to be incarcerated,” another Public Defender asserted. If the PFA takes that away, he predicted, it will have massive effects. A prosecutor agreed: “I think we'll have ten times as many jury trials.”
As part of a study of the PFA, its roll-out and eventual impact, there is practical value in elevating these common attitudes and beliefs about the uses and benefits of pretrial detention. They are “unofficial” and rarely articulated, but deeply felt, and certainly widespread in Illinois. If they are in some cases based on misconceptions, they are misconceptions shared by system insiders as well as private citizens. And for better or worse, they form an important part of the background of expectations against which the success or failure of the new law will be judged.
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.