Balancing Public Safety and the Rights of People Awaiting Trial

Balancing Public Safety and the Rights of People Awaiting Trial

Pretrial justice policy was the subject of a recent NCSL Town Hall.

State Legislatures NewsPolicyCivil and Criminal Justice

When the Pretrial Fairness Act went into effect last year, Illinois became the first state to eliminate cash bail.

SimsPettyjohn

Communication and partnerships are key to working on pretrial policy, two state senators say.

"The end goal is to make sure our communities are safer (and) to make sure that the individual who committed the crime is held accountable but then made whole again," Illinois Sen. Elgie Sims (D) says.

Sims joined an NCSL town hall to discuss pretrial policy with Delaware Sen. Brian Pettyjohn (R). Both senators are part of the NCSL 2023 Pretrial Fellows Program, which connects legislators so they can learn from experts and each other.

Pettyjohn participated in the program to see what other states were doing because the Delaware General Assembly wanted to amend its pretrial policy. He says he didn't "want to reinvent the wheel if we didn't have to." Sims says the fellowship allowed him to learn from his colleagues across the country.

"We don't come to those conversations as Democrats or Republicans," he says. "We come to those policy discussions as policymakers looking to have the best policy implemented."

This open communication helps legislators learn from each other.

"Learning what worked, what didn't work in other states (means) that when we were framing our constitutional changes in Delaware, and our statutory changes, we were getting those right the first time," Pettyjohn says.

Partnerships are key to creating this policy because it's "a marathon not a sprint" that requires a large amount of research and planning, Sims says.

"You can do it in a coordinated manner as long as you keep those lines of communication open," Pettyjohn says.

Delaware is currently trying to implement a policy where individuals who pose a risk to public safety may not be eligible for pretrial release. They are trying to strike a balance between public safety and the rights of the individual awaiting trial, Pettyjohn says.

Delaware also redid its bail system and if individuals pose a public safety risk, they can be held during pretrial with "periodic reviews that will protect their civil liberties," Pettyjohn says.

"There is always a balancing act between people being able to be in the community while they are awaiting trial because they have not been adjudicated, they have not been found guilty by a jury of their peers, by a judge yet, and balancing that (with) public safety," Pettyjohn says.

Illinois had already done something similar, and it has eliminated cash bail with the Pretrial Fairness Act. It started with the Bail Reform Act of 2017, which distinguished nonviolent offenders from violent ones and identified those who were high flight risks, Sims says.

"Dangerous offenders shouldn't be walking the streets just because they have access to cash," he says.

Other individuals who dealt with challenges such as poverty and mental health were not able to pay, so they could not make bail. It allowed money to stay in those communities, Sims says.

"That's really the key for us, is how we stabilize communities," Sims says. "How do we make sure that we are focused on community safety?"

The Illinois Office of Statewide Pretrial Services, which was created through a partnership of all three government branches, is investing in these services to keep the process going, Sims says.

Pettyjohn also says that the partnership with multiple branches allowed Delaware's pretrial policy to be successful, adding, "This is a three-branch-of-government solution."

Hannah Edelheit is an intern in NCSL's Communications Division.