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.
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