Op-Ed: Keep the Pretrial Fairness Act as-is

Pretrial justice reform was sorely needed in Illinois to address the harm the money bond system has caused Black, Brown, and poor communities. As former public defenders and current clinical law professors, we know firsthand how the money bond system created an unfair, constitutionally-suspect, wealth-based approach to pretrial jailing outcomes.

Legislators took a major step in the right direction by passing The Pretrial Fairness Act in 2021. The legislation, set to go into effect in January, is aimed at reducing incarceration by ending the money bond system in Illinois. The purpose is simple: to ensure that people are not held in jail simply because they cannot afford to buy their freedom. But now, state legislators are considering amendments to the Pretrial Fairness Act that would undercut the purpose of the legislation and exacerbate the very issues the Act is meant to address. 

The Pretrial Fairness Act allows people charged with serious crimes to be detained if they pose a flight risk or risk to public safety while limiting the scenarios in which people charged with low-level crimes can be jailed. The Illinois State’s Attorney’s Association has seized upon confusion created by a multi-million dollar misinformation campaign paid for by fringe political advocates to propose changes to the law. Provisions in the proposed amendments would remove the guardrails set up to achieve the law’s goal of reducing pretrial jailing while protecting public safety. The result of adopting these changes would be devastating; they would increase pretrial jailing, worsen racial disparities, and make our communities less safe. 

Under the Pretrial Fairness Act, prosecutors are required to show that release would pose “a specific, real, and present threat” to a person or persons. But the proposed amendments allow prosecutors and judges discretion to incarcerate people for indefinite periods of time, based on vague, broad standards that a person poses a general threat to the community.

An essential check on prosecutorial power is limiting which charges are eligible for pretrial detention. Under the current law, as it has existed for years, prosecutors do not have unlimited power to hold people without bail. Holding people without the possibility of monetary release is limited to only the most serious charges. 

But if the Illinois State’s Attorney’s Association has its way, people who are charged with low-level crimes and legally presumed innocent could be held in jail for months or even years. Prosecutors would be empowered to ask a judge to jail any person, irrespective of the crime for which they are charged. This is an authority that prosecutors have never had even under the state’s current cash bail system. 

Taken together, the expansion of the number of charges eligible for detention and the weakening of the legal standards needed to prove dangerousness would result in a dramatic increase in the number of people detained pretrial, undermining the primary purpose of the Act.

Research confirms that the kind of broad prosecutorial and judicial discretion contained in the proposed legislation would disproportionately impact Black and Brown people and exacerbate racial disparities in Illinois jails.  

Studies show that in large urban areas, Black people are over 25 percent more likely to be held pretrial than their white counterparts; young Black men are 50 percent more likely to be detained than whites. According to 2017 data, Black people constituted nearly half of Illinois’ jail population despite making up only 15 percent of the state population. Brown people are also significantly more likely to be detained pretrial than their white counterparts.

The incalculable human cost of pretrial incarceration would make our communities less safe. In addition to producing wrongful convictions, coercive and unfair plea deals, and longer sentences, pretrial detention disrupts interpersonal relationships and community ties and increases the likelihood of future arrests. 

Increased incarceration creates devastating collateral consequences for individuals, families, and communities. People experience an average of 34 days of pretrial incarceration in Illinois, with many jailed for far longer, leading to the loss of jobs and housing. If and when people are released, they have been stripped of the means they need to support themselves and their families. 

More than half the people held pretrial are parents of young children. Parental detention causes financial hardships for families and forces children into the foster care system. It traumatizes children due to the effects of family separation on par with divorce, domestic violence, and abuse. We have long known that incarceration does not make us safer; if it did, the United States would be the safest country in the world.  

The proposed changes are not “clarifications” or “tightening language.” Instead, they seek to gut the law’s core mechanisms—aimed at reducing the harm the money bond system has caused Black, Brown, and poor communities—and replace them with measures that would increase the power of prosecutors and judges to incarcerate people awaiting trial.

We stand behind the Pretrial Fairness Act, not just because the proposed amendments will lead to increased incarceration and devastation for our communities, but because pretrial justice works in Cook County and in jurisdictions across the country. It is clear to us that the Pretrial Fairness Act is the path to a fairer, safer justice system.

Craig Futterman and Herschella Conyers are clinical law professors at the University of Chicago Law School.