Since the Pretrial Fairness Act was implemented last fall, there has been a significant increase in the number of appeals filed. The appeals are mostly from accused people who want an appellate court review of a trial judge’s order to deny them pretrial release. While this increase caught some by surprise, it is the natural outcome of dramatically transforming our pretrial court system. Appellate decisions are necessary to clarify the law and ensure it is properly implemented.

The increase in pretrial detention appeals is not surprising. Both the State Appellate Defender and State Appellate Prosecutor prepared for a high volume of appeals and requested millions in additional funding to increase staffing and use additional contract attorneys to handle any overflow of cases. Nevertheless, some appellate justices expressed concern over the increased number of appeals. In response, the Illinois Supreme Court convened a task force to address the increased appellate court workload and recommend changes to the current process for appealing detention decisions. That task force released a number of recommendations in March 2024, some of which the Court has adopted, changing the process for how people can appeal pretrial release and detention decisions.

This is a description of the Illinois Supreme Court Rule amendments that went into effect on April 15, 2024:

• Rule 604(h)(2): Motion for Relief: Instead of filing a long-form notice of appeal provided by the court, defense attorneys must instead file a “motion for relief” in front of the trial court. This motion must include the arguments and relief sought on appeal. Generally, any issue not raised in this motion is waived and cannot be pursued on appeal. This rule creates a new responsibility for trial attorneys, and limits the ability of appellate attorneys to raise new arguments later on. The court’s original decision can only be appealed using a short-form notice of appeal after the trial court has ruled on the motion for relief.

• Rule 604(h)(10): Notification for Mootness: This amendment requires trial attorneys to notify the appellate court within 24 hours when an appeal becomes moot. This means that if the case resolves or something else happens eliminating the necessity of the appeal (such as release from custody), trial attorneys have 24 hours to notify the appellate court that the appeal is moot. 

• Rule 604(h)(11): Subsequent PFA Appeals in the Same Case: This amendment allows an accused person to have only one pretrial release appeal in a case at any given time. For example, under the old rules, it was possible for someone to appeal a subsequent decision before the first decision had been decided. (The timeline for receiving a ruling was approximately 100 days from the decision being appealed—an extremely long time for someone who is jailed.) This amendment prohibits second or subsequent appeals before a decision has been made in the first appeal.

• Rule 605(d): Advice to Defendant on Entry of an Order Imposing Conditions of Pretrial Release, Granting a Petition to Deny Pretrial Release, or Revoking Pretrial Release: Previously, accused people were notified of their right to appeal at the time the release, detention, or revocation decision was made. Now, accused people are notified of their right to file a motion for relief at the time of the initial decision and only advised of their right to appeal after the motion for relief has been heard.

Before the Pretrial Fairness Act went into effect, decisions about whether or not someone would be jailed while awaiting trial were made in a matter of minutes. Instead of being presumed innocent, low-income Illinoisans, disproportionately Black and Latinx, were booked into jail—sometimes even before they could even meet with a court-appointed lawyer. The new pretrial system gives people awaiting trial the ability to consult with lawyers before they appear in court and provides meaningful hearings to consider the individualized factors weighing in favor of and against pretrial detention. 

Under the money bond system, detention hearings often lasted less than five minutes and there was no meaningful consideration of the person’s employment status, community ties, or treatment opportunities. Now, accused people are entitled to robust, individualized hearings when the prosecution has requested their pretrial detention. When a prosecutor requests to detain someone awaiting trial, the accused person has an attorney to represent them at the hearing, contest the allegations, and argue for their release. These hearings now take between 15 and 20 minutes.

Predictably, defense appeals from pretrial detention decisions have increased. In fact, unaffordable money bonds were only appealed a few dozen times a year. The broken money bond system featured quick hearings that did not facilitate meaningful appellate review. This was true both because a genuine record cannot be created in a matter of minutes and because assessing the “correct” dollar amount to put on someone’s freedom when there has been no finding to justify their ongoing detention was an impossible task. The previous Supreme Court Rule for appeals, 604(c), also dissuaded accused people from seeking review of their money bonds because judges routinely threatened to raise their bond amount if the trial attorney filed the “motion to reconsider bond” that was required before an appeal could be taken.

In contrast, the transparent and accountable decision to release or detain someone under the Pretrial Fairness Act provides accused people with access to meaningful appellate review. This is essential in transforming an often-perfunctory hearing into a decision whose significance in court aligns with both an accused person’s life—where they risk losing their freedom—and the role of pretrial release in their criminal case. While not historically regarded as a significant stage in a criminal case, research has revealed that whether or not someone is detained or released pending trial will have a significant impact on whether or not they are ultimately convicted and if so, what kind of sentence they receive and how long it is.

Appellate review is a vital check in any criminal court process and is especially important in providing interpretive guidance on new laws. Where trial courts fail to follow the law or erroneously apply the law, appellate judges overturn the mistaken lower court rulings and explain their reasoning. This oversight is critically important as Illinois implements a new pretrial system that no longer allows money to obscure whether someone was ordered released or detained. It is essential that Illinois protects this access and no additional efforts are made to reduce appellate review of pretrial release and detention decisions.