Crimen y Tráfico

Pretrial release allows a person charged with a crime to remain in the community instead of staying detained while their criminal case is pending.

On September 18, 2023, Illinois passed the Petrial Fairness Act, which eliminated the cash bail system and established a pretrial release system in its place. People are no longer required to pay money to be released before trial.

Most people charged with a crime are eligible for pretrial release. Only those people charged with certain offenses may be detained before trial.

• If a person is arrested and taken before a judge, the judge may:
• Release them while the case is pending,
• Release them with conditions they must follow, or
• Keep them in jail before trial if Illinois law allows pretrial detention.

Anyone released before trial must follow any conditions the judge orders and appear for all required court dates.

No. As of September 18, 2023, Illinois no longer uses cash bail or money bonds. Instead, the judge decides whether a person should be released before trial or detained under Illinois' Pretrial Fairness Act.

In many cases, the person will be taken into custody and brought before a judge for their first court appearance. If the prosecutor believes someone should remain in jail before trial, they can file a petition asking the judge to deny pretrial release. Before a judge can order someone to be detained before trial, the prosecutor must file that petition and prove that the legal requirements for pretrial detention have been met. If a petition to detain is filed, the judge will conduct a hearing and decide whether the person should be released before trial and whether any conditions of pretrial release should apply.

For more information, see:

• What happens at a pretrial detention hearing?
• What does a judge consider when deciding whether to grant pretrial release?

For some less serious offenses, a police officer may issue a citation rather than make an arrest. If you receive a citation, you are not taken to jail. Instead, you must appear in court on the date listed on the citation. At the court appearance, the judge will decide whether any conditions of pretrial release should apply while the case is pending.

Illinois law allows police officers to issue citations instead of making custodial arrests for Class B and Class C misdemeanors, petty offenses, business offenses, and many traffic offenses. However, an officer may make an arrest if the law requires it or if there is another legal reason to take the person into custody, such as concerns about public safety or the likelihood that the person will not appear in court.

No. Most people charged with a crime are eligible for pretrial release and do not have a pretrial detention hearing.

A pretrial detention hearing happens if the prosecutor asks the judge to deny pretrial release. At the hearing, the prosecutor explains why they believe the person should be detained before trial. The prosecutor may present witnesses, documents, police reports, or other evidence allowed by law. Before a judge can order someone detained before trial, the prosecutor must prove by clear and convincing evidence that pretrial detention is necessary.

Depending on the case, the prosecutor must generally prove that:

• The proof is evident or the presumption is great that person charged has committed a crime that is eligible for pretrial detention, 
• The person poses a real and present threat to the safety of another person or the community, or presents a high likelihood of willfully fleeing prosecution, and  
• Conditions such as electronic monitoring, no-contact orders, or other restrictions would not be enough to protect public safety or help ensure the person appears in court.

The person charged with the crime, or their lawyer, has an opportunity to respond, present evidence, and argue why the person should be released.

After considering the evidence and the arguments from both sides, the judge decides whether to:

• Release them while the case is pending, 
• Release them with conditions they must follow, or 
• Keep them in jail before trial if Illinois law allows pretrial detention.

If the judge orders pretrial release, the person must follow any conditions the judge imposes and appear for all required court dates.

The judge may consider:

• The charges and the facts of the case. Some crimes or situations may raise greater concerns about public safety than others.
• Whether the person poses a real and present threat to the safety of another person or the community.
• Whether the person presents a high likelihood of willfully fleeing prosecution. The judge may consider factors such as whether the person has intentionally failed to appear in court in the past or taken steps to avoid prosecution.
• The person's criminal history. This may include past convictions, pending criminal cases, or whether the person has followed court orders or conditions of release in the past.
• The person's circumstances. Depending on the case, the judge may consider factors such as the person's age, health, employment, family responsibilities, and ties to the community.
• Whether conditions of pretrial release would be enough to protect public safety and help ensure the person appears in court. Before ordering pretrial detention, the judge must consider whether conditions such as electronic monitoring, no-contact orders, or other restrictions would be enough.

Yes, but only in certain cases. Most people charged with a crime are eligible for pretrial release.

Illinois law allows prosecutors to ask a judge to deny pretrial release only in certain types of cases. These generally include:

• Many violent felonies,
• First-degree murder,
• Certain firearm offenses,
• Many domestic violence offenses,
• Stalking and aggravated stalking,
• Certain sex offenses,
• Violations of orders of protection,
• Certain felony offenses committed while already on pretrial release, and
• Certain other offenses identified by Illinois law.

Being charged with one of these offenses does not automatically mean a person will be detained before trial.

If a person is accused of violating the conditions of their pretrial release, the judge will generally hold a hearing to decide whether a violation occurred and, if so, what should happen next.

Depending on the circumstances, the judge may:

• Leave the person's pretrial release unchanged,
• Change the conditions of pretrial release,
• Revoke pretrial release and order the person detained before trial,
• Issue a summons or arrest warrant if the person failed to appear in court, or
• Impose other sanctions allowed by Illinois law.

Not every violation results in pretrial detention. Before deciding what action to take, the judge will consider the nature of the alleged violation, the circumstances of the case, and any evidence presented at the hearing.

Examples of violations include:

• Failing to appear for a scheduled court hearing,
• Committing a new criminal offense,
• Violating an order of protection, a no-contact order, or another condition of pretrial release, or
• Failing to comply with another condition ordered by the court, such as electronic monitoring or home confinement.

Yes. The legal standards for deciding whether someone should be released or detained before trial are the same throughout Illinois. However, some court procedures may vary from county to county. For example, counties may differ in:

• How quickly someone appears before a judge,
• How hearings are scheduled,
• Whether hearings are held remotely, and
• How pretrial services are provided.

In addition, State's Attorneys in different counties may have different policies about when prosecutors should ask the court to deny pretrial release. These policies guide prosecutors but do not change Illinois law. Regardless of the county, only a judge can decide whether to grant or deny pretrial release.

For questions about how pretrial release works in your county, contact your lawyer, public defender, or the clerk of the circuit court where your case is pending.

Illinois law gives crime victims specific rights throughout the criminal case, including rights related to pretrial release decisions. Victims may have the right to:

• Be notified of important court proceedings,
• Be heard at certain hearings, including hearings about pretrial release or detention,
• Ask the court for an order of protection or another type of protective order, and
• Receive information about available victim services and support.

In particular, the Pretrial Fairness Act requires that victims be given notice of the pretrial detention hearing and be informed of the opportunity to obtain a protective order at the hearing.

If the defendant is released before trial, the judge may order conditions to help protect the victim and the community. These conditions may include:

• No contact with the victim,
• Staying away from the victim's home, workplace, or school,
• Surrendering firearms when required by law, 
• Electronic monitoring,
• Home confinement,
• Curfews,
• GPS monitoring, and
• Other conditions the judge believes are necessary to protect the victim or ensure the defendant returns to court.

Even if the defendant is detained, the judge may impose a no contact provision with the victim or other interested party that shall be enforced while the defendant remains in custody.

To learn more about victims' rights and available resources, visit the Illinois Attorney General's Crime Victim Services website. You can also learn more about your rights as a crime victim and orders of protection.