CBA Record November-December 2022

Delegation of Detention Decision The PFA delegates the decision to seek detention solely to the prosecutor. See 725 ILCS 5/110-6.1(a); see also 725 ILCS 5/109-1(b)(4), 110-2(d). Article I, § 9, however, does not condition preven tative detention on a prosecution request. Proceeding sua sponte would arguably contravene Gil, which involved a circuit court conducting a detention hearing in the absence of a prosecution request. In Gil, the circuit court followed the proce dures in Circuit Court of Cook County General Order No. 18.8A, which did not require a prosecution-petition for a deten tion hearing. The appellate court held that statutory detention procedures, see 725 ILCS 5/110-6.1 (2018), take precedence over a local rule. But Jackson v. Circuit Court of Cook County , 2020 U.S. Dist. LEXIS 255580 (N.D. Ill.) ( habeas corpus action sustaining bail denial despite non compliance with Gill ). When the court reasonably believes detention should be considered, it could request the state to file a detention peti tion. A court directing the prosecutor to take action, without offending separation of powers principles, is not completely without precedent. In Davis v. Vazquez our supreme court held that a statute per mitting a court to direct the prosecutor to file an adjudication petition did not constitute an impermissible exercise of executive power by the judiciary. Because courts have wide inherent power on pre trial release/detention issues, requesting the prosecution to file a petition may not unacceptably intrude on the execu tive’s constitutional power to initiate and manage criminal prosecutions. On the other hand, Davis v. Vazquez might be distinguishable because the court’s direc tive to the prosecutor in that case was predicated on a statute. Violation Provisions The PFA contains elaborate procedures for addressing alleged violations of pretrial release conditions. See 725 ILCS 5/110-3, 110-6. In Hemingway , the Illinois Supreme Court determined that inherent judicial authority extended to addressing viola tions of pretrial release conditions. It may

or record-making requirements should not result in the release of a detained defendant. See United States v. Montalvo Murillo, 495 U.S. 711, 721 (1990); In re Armour , 59 Ill.2d 102, 105 (1974). In contrast to the above sections, another section of the PFA specifies a consequence. According to 725 ILCS 5/110-6.1(i), “the defendant shall be brought to trial on the offense for which he is detained within 90 days [omitting any period of delay resulting from defense request for continuance] after the date on which the order for detention was entered.” If the defendant is not brought to trial within the 90-day time period, the court “shall not” deny pretrial release. This language appears mandatory. Support for so interpreting this section could be drawn from the ruling on the post-conviction petition docketing issue in People v. Porter, 122 Ill.2d 64, 85-86 (1988). Conversely, mandatory construc tion of § 110-6.1(i) could be viewed as violating separation of powers principles by unduly intruding on the judiciary’s inherent power. See Kunkel v. Walton, 179 Ill.2d 519, 528 (1997); Best v. Taylor Machine Works, 179 Ill.2d 367, 444 (1997); People v. Felella, 131 Ill.2d 525, 538 (1989); People v. Reiner, 6 Ill.2d 337, 342 (1955); see also Bailey, 167 Ill.2d at 240-41. Section 110-6.1(i), unfortunately, fails to acknowledge the judiciary’s obligations in the pretrial release/detention process, and crime victims’ rights. In ordering detention, a court acts on a duty to pro mote public safety, and ensure compliance with court orders. It would be a rare case where the underlying rationale for deten tion extinguishes merely because 90 days have elapsed. Although policy choices cannot influ ence a constitutional ruling, the 90-day rule is impracticable, and conflates pre trial release with speedy trial principles. Detained defendants are often charged with factually complex cases, such as first degree murder. It is unrealistic to expect the preliminary hearing/indictment and criminal discovery processes, including scientific testing, to be completed within 90 days of a detention order.

be difficult to harmonize the PFA’s new violation procedures, and remedial limita tions, with inherent judicial authority. Still more, imprisoning a violator up to 30 days – an authorized “sanction” under the PFA, 725 ILCS 5/110-6(f ) — may pose constitutional problems. Violation of pretrial release conditions may constitute a criminal offense. See 720 ILCS 5/32-10. Cloaking punishment as a “sanction,” in which the state is not held to a reason able doubt burden of proof, potentially implicates due process and trial rights. See Apprendi v. New Jersey, 530 U.S. 466 (2000). Drastic Changes on the Horizon Commencing January 1, 2023, pretrial release procedures in Illinois will drasti cally change. Absent definitive adjudica tion of a comprehensive injunctive action, such as the consolidated cases pending in Kankakee County, see Rowe v. Raoul, No. 129016 (Ill. Sup. Ct. ) (Oct. 31, 2022) (ordering consolidation of 58 lawsuits filed by county prosecutors challenging the SAFE-T Act), legal issues under the PFA portend to be resolved piecemeal. If a particular PFA section is found consti tutionally suspect, severability questions may engender. All of this is to say liti gants, stakeholders and courts will likely experience a period of marked uncertainty while difficult issues traverse through the courts.

Cook County Associate Judge Marc W. Martin has been on the bench since 2014 and sits in the Third Municipal District; he expresses no opinions in this article, which is intended solely

to foster discussion by proffering arguments and considerations on both sides of given issues.

Appreciation is extended to Robin Shartiag, Circuit Court of Cook County Staff Attorney, for her assistance.

Visit www.chicagobar.org/chicagobar/PreTrial Act2022 to view the full version of this article.

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