What's Happening in Pretrial Justice? July 2023

Pretrial Victory in Illinois! 🎉

On July 18, the Illinois Supreme Court upheld the constitutionality of the Pretrial Fairness Act in Rowe v. Raoul, overturning a lower court decision. A group of prosecutors and sheriffs had challenged the law, which eliminates the use of money bond in all forms. (Illinois had eliminated professional bail bonding in 1964, but still allowed cash bail paid directly to the courts.)

Notably the court found that bail does not equal money, looking at the meaning of bail when Illinois entered the Union in 1818. “A dictionary published that year defined bail as ‘the freeing or setting at liberty one arrested or imprisoned … under security taken for his appearance,’ but did not mention money as the sole or even primary means of providing that security.” This definition still holds true—bail is intended to be a mechanism of release, and money doesn't need to play a role.

The Illinois Network for Pretrial Justice, whose on-the-ground work made the Act possible, issued a statement lauding the decision and calling on “county officials [to] put politics aside and work together to properly implement the law.” The law will take effect on September 18, 2023.

More pretrial news 🗞️

Jurisdictions implement bail reform, no impact on public safety. The Prison Policy Institute reports that in four states and nine cities/counties where pretrial reforms have been implemented and public safety data is available, there have been decreases or negligible increases in crime or rearrest rates after implementing reforms.

For many, a lawyer is still out of reach. In his excellent essay on the unrealized promise of Gideon to provide legal counsel, Jamiles Lartey, reporter for The Marshall Project, points out that roughly half of U.S. counties do not provide legal counsel at bail hearings.

Come for the nightlife, stay for the reforms. Fines and Fees Justice Center Nevada (FFJC Nevada) and the Nevada Department of Sentencing Policy drafted successful legislation (SB103) that requires the state sentencing commission to comprehensively study and report on misdemeanors, a first for the state. FFJC Nevada and their partner, Return Strong!, also successfully advocated for the elimination of fees related to incarceration, including “room and board” fees, medical copays and commissary mark-ups on hygiene items (SB416).

Riker’s Island monitor urges contempt of court consideration. Noting that the pace of reform has stagnated and even regressed in some areas like the use of excessive force, federal monitor Steve J. Martin has urged the court to consider holding the Department of Corrections and its commissioner, Louis A. Molina, in contempt of court.

DC sued over sending cops to mental health crises. The ACLU and Bread for the City, a DC-based nonprofit serving under-resourced residents, have filed suit against the city for sending police officers instead of mental health professionals to situations involving mental health crises. While the city has community response teams of mental health clinicians and certified peer support specialists, they respond to less than 1% of 911 calls. The suit claims that relying on police is an ADA violation.

Most carceral judges in NYC. A new study from the Institute for Quantitative Study of Inclusion, Diversity, and Equity (QSIDE), the NYU School of Law, and Scrutinize, an organization promoting judicial accountability, identifies the 14 most carceral judges in New York City, compared to their 231 peers. According to the study, these judges were substantially more likely to order pretrial detention, even after accounting for severity of the case and criminal history, and these decisions resulted in 580 more people detained, at an additional cost of $77 million.

In contempt over competency restoration. In 2018, Washington state entered into a settlement agreement to address a lack of beds in mental health facilities, which forced people to wait in jails for competency restoration services. Since then, wait times have increased because the state closed additional facilities. The judge has ordered the state to pay $100 million in fines for failing to provide timely psychiatric services. In commenting on the case, Disability Rights Washington said that resources would be better spent on long-term services rather than prosecution, noting that “the average class member stuck in jail is a person of color, chronically homeless or unstably housed, living in desperate poverty with little or no access to any type of care in the community.”

North Carolina gives judges ability to detain based on charge. A new law in North Carolina (HR813) allows judges to detain people pretrial if they are charged with certain serious felonies. The new law also places the responsibility of setting conditions for people who are charged with new offenses while out on bail in the hands of judges, rather than magistrates, though magistrates may set conditions if the judge does not act within 48 hours of arrest. The new law also extends the length of time for periodic reviews of juveniles in secure custody charged with certain offenses, from once every 10 days to once every 30 days. NC Rep. Amos Quick III, who voted against the bill, criticized the law as eroding the presumption of innocence.