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Since the Pretrial Fairness Act’s passage by the Illinois General Assembly in 2021, much of the media attention and public discourse has been limited to a few key provisions of the law that portend transformative changes to Illinois’ pretrial systems. Unsurprisingly, the law’s elimination of money bond, its creation of robust detention eligibility criteria, and its new requirements of law enforcement have all been subjects of news headlines and intense coverage. But beyond some of its more well-known modifications to end wealth-based and unnecessary jailing, the full scope of the Pretrial Fairness Act aims to further stem the tide of mass incarceration by comprehensively addressing unfairness resulting from lesser known yet very problematic pretrial practices. 

One of those very problematic and rarely discussed features of our courts is the widespread use of remote hearing technology. 

Remote hearing technology describes a broad range of tools that enable audio-visual communication between two or more parties often using monitors or television sets. Although remote hearings, commonly referred to as videoconferencing, achieved greater notoriety during the onset of the COVID-19 pandemic, its application in criminal court has been steadily increasing for decades. In 1972, Illinois became the first state to allow for videoconferencing to conduct a bond hearing remotely. Shortly thereafter, Philadelphia followed suit in 1974, allowing for videoconferencing to be used during most preliminary arraignments. In the years that followed, the country’s soaring jail populations, fed by over-reliance on wealth-based jailing (through money bonds) accelerated the use of videoconferencing as this emerging technology became increasingly attractive to manage criminal court operations. 

Whereas in 1990, 53% of felony cases nationally involved the use of money bond, by 2006, that jumped to 70%. In Illinois, that meant that jail populations fed by money bond increased by over 250% between 1970 and 2015.

The expansion of pretrial populations created the challenge of managing overcrowding in local jails. In turn, this meant that moving incarcerated individuals to and from local courthouses for preliminary arraignments and bond hearings was only becoming more expensive. And because individual counties are responsible for the costs related to jailing people who cannot afford their bonds, the growth of pretrial incarceration has also had a substantial impact on local budgets.

In states like Illinois, with a preponderance of rural populations with sizable jails, videoconferencing has increasingly become a preferred cost-saving mechanism and one that neither courts nor jail administrators are keen to relinquish. While proponents of videoconferencing technology will point to the time it saves during pretrial proceedings and its’ cost savings as evidence of its worth and efficiency, in reality, remote hearings in our pretrial systems are often a reflection of how bloated and inhumane our criminal legal system has become. 

Despite the convenience of videoconferencing for jail administrators, judges, and State’s Attorneys, there are serious due process and substantive concerns with remote hearings. 

When accused people appear in court for a variety of reasons, their credibility, competence, physical and psychological wellbeing are factors that judges use (both explicitly and implicitly) when making pretrial release decisions. Put plainly, an accused person’s remote participation from a local jail lockup diminishes the court’s ability to accurately assess and fairly determine whether that person must be detained pretrial.

Remote hearings can seriously disadvantage accused people when the technology is functioning properly, but when technology malfunctions, these disadvantages are compounded. While advancements have certainly been made since the 1970s to enable courts to use more robust videoconferencing platforms (like Zoom, Skype, or WebEx), complications often arise, some of which include: lack of access or experience with the technology by one or more parties; internet connectivity problems; discomfort with using the technology, either by accused people or system actors; system errors that can significantly limit communication; and poor visual or audio quality. 

These disadvantages produced by remote hearings don’t merely amount to minor misunderstandings during pretrial proceedings – they can and often do influence judicial decisions that pose life-altering consequences.

A study examining bond court outcomes in Cook County found that following the implementation of videoconferencing in felony pretrial hearings, bond amounts assigned by judges rose by over 50%. This same increase was not documented among those that continued to appear in-person facing similar charges. In practice, this means individuals may languish in jails for weeks, months, or even years before trial, when they may have received a more favorable outcome had they been able to appear in-person.

The diminished ability of accused people appearing remotely at pretrial hearings to privately communicate with their attorneys or adequately participate in their own defense is obvious. Across Illinois, it isn’t uncommon for accused people appearing via videoconference to have their first encounter with their defense lawyer happen during their bond hearing while in the presence of the judge and prosecutor. Similarly, it is not rare for judges or other courtroom actors to stifle any questions an accused person may have by simply using the mute option of their respective videoconferencing platforms.

Of course, in-person criminal proceedings are not free of due process and procedural justice concerns. Live hearings can often be difficult for accused people to participate in effectively due to the pace of individual pretrial hearings, courtroom protocol, and the demeanor of courtroom personnel. But the physical absence of individuals appearing remotely has been observed to compound these well-documented problems as perceived by researchers and community members alike. Additional insight into the public’s perspective on the harm of videoconferencing is available here.

The costs of managing our burgeoning jail populations simply don’t justify the means, but the Pretrial Fairness Act is primed to help us. 

While videoconferencing may improve court efficiency and help smaller counties avoid the costs of transporting individuals between jails and courthouses, we could instead place far fewer people in jail than we do today, and in so doing, cut costs and — more importantly — save lives. 

The Pretrial Fairness Act explicitly regulates how courts use video hearings. The law ensures that attorney-client communications over videoconference are not recorded and are private. It also requires that counties that use videoconferencing for their initial appearance and detention hearings develop a plan for moving towards in-person hearings, and get oversight from the Administrative Office of the Illinois Courts (AOIC) to ensure that they are making progress on their plans. 

As litigation regarding the Pretrial Fairness Act continues on in the Illinois Supreme Court case of Rowe vs Raoul, it’s important to remember that the Pretrial Fairness Act represents the most transformative attempt yet to comprehensively address unfairness throughout our pretrial systems – not only by eliminating the practice of wealth-based jailing but by comprehensively addressing the many different ways in which freedom and the presumption of innocence are withheld from accused people awaiting trial.