Illinois’s new bond law, officially known as the Pretrial Fairness Act, has been a topic of heated debate since its implementation. As a defense attorney who’s seen the law in action, I’m deeply concerned about its unintended consequences. While the intent of the law was to create a fairer pretrial system by eliminating cash bail, the reality has been that it’s resulting in people being incarcerated who otherwise wouldn’t have been. Let’s take a closer look at why this is happening and why we, as defenders of justice, must call for changes.
The Promise of Reform
The Pretrial Fairness Act is part of Illinois’s SAFE-T Act, which aimed to eliminate cash bail and address disparities in the criminal justice system. The goal was laudable: no one should be jailed simply because they can’t afford to pay bail. In theory, the system should evaluate a person’s risk to the community or likelihood of flight, not their bank account.
The vision was to create a fairer system, one where pretrial detention would only occur when truly necessary, and low-level, nonviolent offenders wouldn’t be locked up because of financial constraints. Unfortunately, the implementation has deviated from this ideal in troubling ways.
The Shift Toward Preventive Detention
Under the new law, judges are tasked with deciding whether to detain someone pretrial based on a set of criteria, including the severity of the offense and the defendant’s risk to public safety or likelihood of appearing in court. While this might sound reasonable, the practical effect has been an increase in preventive detention.
Judges, understandably cautious about public backlash or high-profile mistakes, are erring on the side of detention. Without the option of setting a bail amount—a middle ground that allowed individuals to secure release while still facing some accountability—many judges are opting to detain individuals outright. The result? People who might have been released on bail under the old system are now sitting in jail awaiting trial.
Discretion Without Accountability
One of the major flaws of the new system is the broad discretion it gives to judges without sufficient checks and balances. In theory, judges should carefully weigh the evidence and circumstances before deciding to detain someone. In practice, however, many judges are making these decisions in a matter of minutes, often relying on the prosecution’s narrative rather than conducting a thorough evaluation of the facts.
As a defense attorney, I’ve seen cases where clients with no significant criminal history, strong community ties, and low-level charges are being detained because a prosecutor argues—with minimal evidence—that they pose a vague “threat” to public safety. The lack of rigorous standards or oversight means that decisions are often arbitrary, and defendants are paying the price.
The Human Cost of Pretrial Detention
The human cost of this shift is enormous. Pretrial detention disrupts lives in profound ways. Defendants lose jobs, housing, and custody of their children. They face increased risks of mental health issues and physical harm while incarcerated. Most importantly, their ability to mount an effective defense is severely compromised.
When a client is detained pretrial, they’re often pressured into accepting plea deals just to get out of jail, even if they’re innocent or have a strong case. This not only undermines the presumption of innocence but also perpetuates the cycle of incarceration and criminalization.
Disproportionate Impact on Marginalized Communities
The new bond law was intended to address racial and socioeconomic disparities in the pretrial system, but it’s having the opposite effect in many cases. Marginalized communities are bearing the brunt of the increased reliance on preventive detention. Judges’ decisions are often influenced by implicit biases, leading to disproportionately higher detention rates for Black and Brown defendants.
Moreover, the criteria for detention—such as perceived “risk”—are inherently subjective and often tied to systemic inequalities. For example, a defendant’s lack of stable housing might be interpreted as a flight risk, even though it’s a consequence of poverty, not criminal intent.
The Need for Change
To be clear, the elimination of cash bail is not the problem. The problem is the way the new system has been implemented and the culture of caution that has taken hold among judges. To fix this, several changes are needed:
1. Clearer Standards for Detention: The law should establish more specific and rigorous criteria for preventive detention. Vague terms like “risk” and “threat” leave too much room for subjective interpretation.
2. Increased Accountability for Judges: Decisions to detain someone pretrial should be subject to greater scrutiny and oversight. This could include requiring detailed written justifications for detention and providing avenues for meaningful review.
3. Support for Judges and Defendants: Judges need better tools and training to make fair, evidence-based decisions. At the same time, defendants need access to robust pretrial services, such as reminders for court dates and support for addressing underlying issues like addiction or mental health problems.
4. Data Collection and Transparency: The state must collect and publicly report data on pretrial detention rates, broken down by race, ethnicity, and socioeconomic status. This will help identify and address disparities in the system.
Conclusion
The Pretrial Fairness Act was a step in the right direction, but its current implementation is falling short of its promise. As a defense attorney, I’ve seen firsthand how the new bond law is locking up people who shouldn’t be detained, perpetuating the very injustices it sought to eliminate. We must advocate for reforms that ensure the law lives up to its name—a system that truly prioritizes fairness and justice for all.
James Dimeas, is a nationally-recognized, award-winning, criminal defense lawyer, with over-32 years of experience handling Bond Hearings and Detention Hearings in Chicago, Cook County, DuPage County, Kane County, and Lake County. Recently, James Dimeas was named a “Top 100 Criminal Defense Lawyer in the State of Illinois for the Year” by the American Society of Legal Advocates. James Dimeas was named a “Best DUI Attorney” and a “Best Criminal Defense Lawyer in Chicago” by Expertise. James Dimeas was named a “Top 100 Criminal Defense Trial Lawyer” by the National Trial Lawyers. The National Academy of Criminal Defense Attorneys awarded James Dimeas the “Top 10 Attorney Award for the State of Illinois.” James Dimeas is rated “Superb” by AVVO, the highest classification possible for any criminal defense lawyer in the United States. The American Institute of Criminal Law Attorneys recognized James Dimeas as a “10 Best Attorney for Client Satisfaction.” Attorney and Practice Magazine gave James Dimeas the “Top 10 Criminal Defense Attorney Award for Illinois.
If you need an attorney for a Bond Hearing, or Detention Hearing in Kane County, Chicago, Cook County, DuPage County, or Lake County, you can contact James Dimeas anytime for a free and confidential consultation. You can talk to James Dimeas personally by calling him at 847-807-7405.
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