What's Happening in Pretrial Justice? September 2023

Illinois begins new era of pretrial justice. 🎉 As of Monday, September 18, 2023, the Pretrial Fairness Act officially went into effect in Illinois! Congratulations to all the groups and supporters who worked so hard for this historic legislation. The Coalition to End Money Bond will be courtwatching in nine jurisdictions to see how the law is being implemented. Read Meghan Guevara's thoughts on where we go from here.

Ch-ch-ch-changes in Cleveland. As part of their series on bail reform in Cuyahoga County, Ohio, the Marshall Project reports that compared to 2016, judges are now setting cash bail in felony cases much less frequently, and more often using personal bonds. In cases involving only low-level charges, the use of personal bonds has doubled from 39% of cases to 78%. The changes are the result of mostly informal changes to practice and culture, rather than state laws or court rules, say county officials.

Why yes, you should make a federal case out of it, part 1. Lawyers for Equal Justice Under Law scored a major victory in Welchen v. Sacramento, which challenged the use of a bail schedule without accounting for a person’s ability to pay. On September 5, a federal district court judge found that the city’s indiscriminate use of the bail schedule was in violation of the Due Process Clause of the Constitution and enjoined the sheriff and state attorney general from enforcing the bail schedule without individualized considerations such as ability to pay.

Why yes, you should make a federal case out of it, part 2. Federal law prioritizes pretrial release and forbids the setting of financial conditions that result in pretrial detention. In spite of this, in 2022, 69% of cases in federal court resulted in pretrial detention. In response, the Defender Services Office has announced a three-day Bail Boot Camp in New Orleans to address failures of federal system actors to adhere to the Bail Reform Act and encourage zealous advocacy at initial appearance and detention hearings.

Country roads…should take people home. The West Virginia legislature passed SB1010, which authorizes the state supreme court of appeals to facilitate pretrial release through monitoring in all circuits of the state in order to reduce populations of short-term detainees in regional jails. The bill extends a 2009 pilot program, which has been criticized for lacking data on outcomes. As part of the bill, the court has been asked to develop an electronic system of pretrial court date reminders, and to prepare annual reports on the efficacy of the programs.

Defense caseload standards outdated and overstated. A new study on public defense workloads finds that the 1973 standards of 150 felonies or 400 misdemeanors per attorney per year set by the National Advisory Commission on Criminal Justice Standards and Goals, are much too high. According to a consensus of panel of attorneys with extensive experience in criminal defense, effective public defense would require no more than 59 low-level felonies or 150 low-level misdemeanors, using a weighted caseload model. The study was a joint project of the RAND Corporation, the National Center for State Courts, the American Bar Association and lawyer Stephen F. Hanlon.