By Chief Justice Mary Jane Theis
On September 18, 2023, the Illinois Supreme Court’s stay of Public Acts 101-652 102-1104, commonly and collectively known as the Pretrial Fairness Act, was lifted, and circuit courts began to conduct hearings concerning pretrial release and detention of criminal defendants. Circuit courts weathered the initial storm of detention petitions, and appellate courts braced for a surge in their caseloads.
In the ten years before the Pretrial Fairness Act abolished cash bail, there were 171 appeals of bond decisions under Supreme Court Rule 604(c). In the first three months after the Act became effective, there were 1,899 appeals of pretrial release and detention decisions under Supreme Court Rule 604(h). In light of that staggering increase, the Supreme Court created a Pretrial Release Appeals Task Force of five appellate justices—one from each of the five districts. The Task Force was directed to formulate “a comprehensive plan to address this matter with urgency,” after consulting with various stakeholders.
On March 1, 2024, the Task Force submitted its report to the Court. Here to discuss the work of the Task Force and its report is its Chair, Fourth District Justice Eugene Doherty.
By Justice Eugene Doherty, 4th District Appellate Court, Chair of the Pretrial Release Appeals Task Force
September 18, 2023, marked the elimination of cash bail in Illinois courts. The new statutory scheme, ushered in by legislation commonly known as the Pretrial Fairness Act (PFA), has challenged Illinois trial courts to adjust quickly, and they were up to the task. Judges, prosecutors, defense attorneys, and pretrial services officers have all performed admirably in meeting the new challenge.
While no one was surprised at the transformative effect of the PFA on trial courts, the effect of the new statute on appeals was likely not as widely anticipated. Prior to the PFA, the right to appeal bond decisions was a matter of right, but the right was seldom exercised: only 171 such appeals were filed in the decade preceding the PFA.
After the PFA, appeals from detention orders exploded. Whereas the entire State previously saw an average of 17 bond appeals per year, we are currently on pace for each appellate judge, on average, to handle 78 PFA appeals per year—a staggering 25,000% increase. In the First District, 39% of its entire criminal case volume is composed of PFA appeals. In the Second, Third, Fourth, and Fifth Districts, PFA appeals are approximately 75% of the entire criminal case volume (i.e., a quadrupling of criminal appeals).
The Illinois Supreme Court acted quickly to respond to this crisis by forming the Pretrial Release Appeals Task Force. Early on, the Task Force arrived at an important conclusion: the issue presented was not a tradeoff between numerous burdensome appeals versus vindication of the rights of individual defendants. Many appeals were actually ineffective at protecting defendants’ rights, so the challenge was how to process the huge increase in case volume while preserving the right to a meaningful appeal.
For example, the initial PFA appeal process allowed cases to proceed on the basis of sparse notices of appeal with little or no case-specific argument. This was not a problem when the notice of appeal was supplemented with a memorandum filed by appellate counsel, but at least half of the time no memorandum was filed. This left only the sparse notice of appeal to carry the entire burden of the appellant’s argument; such “appeals” did not meaningfully advance the appellant’s case, but they imposed a significant burden on circuit clerks, court reporters, the appellee, and the appellate court.
The Task Force recommended
that the Supreme Court make twelve changes to its rules to make the process of initiating an appeal more meaningful, less rote, and more strategic. All twelve recommended changes were implemented
by the Supreme Court effective April 15, 2024, and the most significant among them can be categorized by their effect on the various participants in the process:
- Trial Attorneys. As a prerequisite to appeal, trial counsel must now file a “motion for relief” seeking the same relief to be sought on appeal. Any appeal will be limited to the issues raised in the motion; if no memorandum is filed, the motion stands as the appellate pleading and must contain “sufficient detail to enable meaningful appellate review.” The 14-day time for filing an appeal has been removed; the appellant may appeal immediately, or whenever it is deemed strategically advantageous. (Note that the PFA requires the court to readdress detention status at all future court dates.) While an appeal is pending, trial counsel must promptly notify the appellate court and opposing counsel if the question of detention becomes moot, such as by a plea agreement.
- Trial Judges. Motions for relief must be heard “promptly.” Admonitions to be given to the defendant are now split into two separate components to mirror the two-step process which must precede an appeal: the initial detention decision, followed by the decision on the motion for relief.
- Appellate Attorneys. The appellant’s memorandum must be limited to issues raised in the motion for relief and must specify which issues raised in the motion are being advanced on appeal.
These rule changes were designed to preserve the right to a meaningful appeal from a detention decision, while at the same time discouraging rote, reflexive appeals that do not effectively serve the appellant’s interests. It is in everyone’s interest that the new rules succeed.