In an op-ed published by the Chicago Tribune, Cook County State’s Attorney Eileen O’Neill Burke called to roll back the human rights protections for people subjected to electronic monitoring included in the Pretrial Fairness Act. 

State’s Attorney Burke essentially argues that the charge someone is facing should be the sole factor determining whether or not they are released pretrial. This position ignores the facts of each individual case and the circumstances of each person as reviewed by a judge. As an attorney, State’s Attorney Burke is certainly aware that in the United States, everyone has the right to due process and the presumption of innocence. These values are at the foundation of our criminal legal system, but Burke has continually put forward policies that would deny people those basic rights. 

Since her first day in office, Burke has limited the discretion of her prosecutors by requiring that they seek detention in all cases in which certain allegations are made. By mandating that her prosecutors seek detention for all cases involving certain charges and factors, Burke strips line attorneys of their power to decide whether a risk of danger or willful flight is actually present in any individual case. Burke also issued a directive requiring her prosecutors to object on the record whenever their petition to detain is denied and the accused person is released on electronic monitoring. This policy limits attorney discretion and is a blatant attempt to undermine judicial independence by pressuring judges to grant more petitions to detain even when they have determined that pretrial detention is unnecessary. 

In 1987, the U.S. Supreme Court confirmed that “in our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Jailing someone who hasn’t been convicted of a crime is meant to be reserved for instances where there is an identifiable risk to public safety—not simply because of the charge a person is facing. 

It is important to note that in Cook County, approximately half of the detention-eligible cases filed result in dismissal or acquittal. The Pretrial Fairness Act is ensuring that judges have more time and information available to them when making decisions about pretrial jailing. Judges are simply making a finding that the State’s Attorney disagrees with: that an individual is not too dangerous to be released. 

We know that pretrial jailing causes people to lose their jobs, housing, and custody of their children. Numerous studies have shown that the destabilization caused by even short periods in jail increase the likelihood that people will be arrested again in the future. We all want to live in safe communities, but denying people their most basic rights only makes us less safe.

Like with the vast majority of the attacks on the Pretrial Fairness Act, State’s Attorney Burke’s call to action uses misinformation about this racial justice legislation in an attempt to stoke fear. 

Burke claims that people on electronic monitoring go “unmonitored” for multiple periods of time every week. This claim has been repeatedly debunked. Nothing in the Pretrial Fairness Act prevents people from being tracked during essential movement. In fact, people on electronic monitoring in Cook County are currently tracked in real-time using GPS technology. If someone breaks electronic monitoring rules, law enforcement is able to respond immediately, investigate alleged violations, and take people who are committing new offenses into custody. 

It is critical to remember that these provisions were put in place to address the human rights crisis that was occurring under the Cook County Sheriff’s electronic monitoring program. Thousands of people, the vast majority of them Black, were denied the ability to contribute to their households, perform life-sustaining tasks, and even access healthcare. The electronic monitoring reforms in the Pretrial Fairness Act are intentionally designed to correct that injustice.

Burke also objects to people being given credit towards sentencing if they are subjected to electronic monitoring. Sentencing credit for pretrial home confinement was already the law before the Pretrial Fairness Act, but it was inconsistently applied. Some people were not given credit towards their sentences even though they experienced many of the same harms people face when incarcerated in brick and mortar jails. It would be a grave injustice to take away people’s liberty while awaiting trial and not factor that time into any sentencing decision that is made following a conviction. 

The reality is that the electronic monitoring provisions of the Pretrial Fairness Act have been incredibly successful. Between January 2016 and June 2020, 91% of people on electronic monitoring in Chicago were not re-arrested for any crime. Only 1.75% of people were re-arrested for a serious felony (Class 2 or higher). The University of Chicago Crime Lab found that in 2021, there were just three arrests of individuals on electronic monitoring for allegedly committing a homicide or shooting—out of almost 4,500 homicides and shootings that year. Since the Pretrial Fairness Act took effect in 2023, 94% of people who returned to the community while awaiting trial in Cook County have not been charged with any new violent or person offenses while on pretrial release.

Since 2022, the Pretrial Fairness Act has ensured that people on electronic monitoring are able to go grocery shopping, attend doctor’s appointments, and apply for jobs. These measures increase community safety by ensuring that people can do the basic things we all need to do in order to have stability in our lives.

State’s Attorney Burke’s dangerous policy proposals undermine public safety, due process, and judicial independence. Rather than rolling back criminal justice reforms and denying people their most basic constitutional rights, which only creates the illusion of safety, we should be celebrating the very real contributions of the Pretrial Fairness Act to making communities safer, keeping families whole, and allowing residents to achieve stability.