Just before the Pretrial Fairness Act went into effect, the Illinois Supreme Court released an order that allows for first appearance and pretrial detention hearings to be held virtually. The order went into effect on September 18th and will not be lifted until March 18, 2024, creating an environment ripe for unnecessary detention and injustice against thousands of accused people across Illinois.

While the Pretrial Fairness Act allows for virtual hearings in instances where operational challenges are raised, the law clearly states that in-person hearings should be the norm, and virtual hearings are a limited exception. This language was written to ensure that virtual hearings only occur on a limited case-by-case basis. 

The high court stated that this widespread exception was made to help local courts handle operational challenges related to the law’s requirement for timely pretrial detention and first appearance hearings. However, there was a two year preparation period for implementation after the law’s passage in 2021, with an additional nine month delay stemming from the legal challenge to the law. This nearly three-year-period provided ample time for courts to prepare to hold in-person hearings under the new system. 

People who are forced to appear in court virtually while in custody face a number of risk factors. Remote hearings have been proven to exacerbate the already problematic issues of discrimination within the court system. Judges viewing an accused person on screen are less likely to see the humanity of the person before them and people appearing in video hearings are more likely to be judged as uninterested or disengaged. One study found that in three out of six surveyed courts, judges changed their rating of how reliable they thought a person’s testimony was in court after holding an in-person hearing following a virtual one. 

Virtual hearings make communication between accused people and their attorneys extremely difficult. Attorneys are forced to choose between appearing in the courtroom with the judge and prosecutor or appearing at the hearing virtually so they can be present with their client. If they’re not in-person with the person they’re representing, attorneys are only able to have private conversations in breakout rooms, and in some instances court actors forego breakout rooms, leaving sensitive conversations to take place in open virtual court. In-person hearings make it much easier for attorneys and the people they’re representing to have critical conversations privately while the hearing is ongoing, which improves advocacy.  

Virtual hearings have severe consequences for people facing criminal charges. Studies found that people who had virtual bond hearings in Cook County had bond amounts set 54-90% higher than people facing similar charges that had their cases heard in-person. The injustices of virtual hearings pose serious threats to the intended impact of the Pretrial Fairness Act. The difference between virtual or in-person detention hearings could cost community members their freedom. In order for the Pretrial Fairness Act to be implemented fairly, all people deserve access to in person hearings. 

It is critical that we monitor the outcomes of virtual hearings and that the Supreme Court ensures that widespread exceptions are lifted as soon as possible. The rights and pretrial freedom of Illinoisians depends on it.