2022 Domestic Violence Pretrial Practices Working Group Preliminary Report: Current Illinois Domestic Violence Pretrial Practices

Introduction

SAFE-T Act

The Illinois Safety, Accountability, Fairness, and Equity-Today Act (SAFE-T Act) was signed into law on January 22, 2021, by Illinois Governor JB Pritzker. The SAFE-T Act enacts criminal justice reform in three critical areas – policing, pretrial, and corrections. Pretrial reforms, in particular, have important implications for victims of domestic violence and other forms of gender-based violence, including sexual assault and stalking.^[1] Thus, the SAFE-T Act established the Domestic Violence Pretrial Practices Working Group to inform the state’s understanding of current domestic violence pretrial practices and to make recommendations for evidence-based improvements to court procedures. The present report reflects the working group’s assessment of current domestic violence pretrial practices as of November 30, 2022, and satisfies their statutory obligation to submit a preliminary report summarizing these findings. Domestic violence pretrial practices in Illinois continue to shift in response to new or amended legislation as well as court orders and decisions. While this report does not capture changes in practices since November 30, 2022, it does provide a crucial foundation upon which members can assess changes in practices as new legislation is passed, amended, and implemented in Illinois and develop recommendations for evidence-based improvements to court procedures.

Domestic Violence Pretrial Practices Working Group

The working group is comprised of 13 diverse Illinois criminal justice and victim service stakeholders. Illinois Criminal Justice Information Authority Executive Director, Delrice Adams, serves as the working group’s chair. Table 1 contains the membership list.

Table 1

Domestic Violence Pretrial Practices Working Group Membership List

Working Group Assessment of Current Practices

Members discussed current domestic violence pretrial practices. Their discussion centered around four areas: criminal justice system responses, use of risk and lethality assessments, education and training for criminal justice professionals, and pretrial data collection for domestic violence and related offenses.

System Responses

Members’ assessment of criminal justice system responses currently used during the pretrial phase focused on Illinois’ discretionary arrest policy for domestic violence offenses, and probable cause, initial appearance hearing, and victim notification practices.

Illinois as a “May Arrest” State

According to the Illinois Domestic Violence Act (IDVA) of 1986, law enforcement may arrest the alleged perpetrator if there is sufficient probable cause that a domestic violence-related offense has been committed.^[2] Several working group members described Illinois as a “may arrest” state, in contrast to other states with mandatory arrest policies for domestic violence offenses. They asserted that not all prosecutors, law enforcement officers, and defense attorneys understand this important distinction and that educating them on the policy and how it impacts legal procedures and processes can be challenging. Therefore, criminal justice professionals may benefit from clearer guidance on how law enforcement officers are to make arrest decisions when domestic violence is suspected.

Probable Cause and Initial Appearance Hearings

Probable cause is required to make an arrest, to conduct a search, or to issue an arrest or search warrant.^[3] While courts have discretion in interpreting probable cause, they have broadly described it as there being sufficient reason to believe that a crime has occurred. Members stated that in many jurisdictions probable cause is determined during the defendant’s initial appearance hearing. Members reported that the timing of a defendant’s first appearance hearing varied by jurisdiction. In Kane and Cook counties defendants may be brought in front of a judge for their initial appearance hearing the next day, whereas in rural counties it may be several days before their initial appearance hearing is held. They also noted that in extreme circumstances that a defendant may be detained for a week or more before their initial appearance hearing is held if probable cause is found. According to members, such delays are allowable because while statute requires that defendants be brought before the first available judge, it does not specify a time limit.

Victim Notification

Both the IDVA and the Rights of Crime Victims and Witnesses Act delineates information to be shared with domestic violence victims; this information sharing can be crucial for facilitating victims’ safety. Specifically, the IDVA requires law enforcement to provide domestic violence victims with a summary of their rights, available victim service resources, and the responding officer’s name and identification number.^[4] Furthermore, the Rights of Crime Victims and Witnesses Act asserts that victims have the right be notified of court proceedings and to information about the defendant’s conviction, sentence, and custody status.^[5] Several working group members reported that these required victim notification practices are implemented consistently across Illinois counties. Furthermore, information for each local jurisdiction’s prosecution-based victim/witness advocacy program is also provided. We asked participants to indicate whether they had experienced any of five forms of discrimination in their lifetimes, including unfair discipline at work or school; unfair employment practices; unfair medical treatment; unfair treatment by realtors, landlords, or neighbors; and unfair treatment by law enforcement. Participants were also asked to indicate whether they thought their race, religion, ethnic or national origin, disability, gender identity, gender expression, and/or sexual orientation was the main reason(s) for each experience.

Risk and Lethality Assessments

Members had numerous robust discussions about the risk and lethality assessment tools currently being used to help assess risk to domestic violence victims during pretrial. In addition to reporting the types of instruments and their utilization, members asserted the importance of satisfying lethality assessment requirements outlined by the Cindy Bischoff Law and using evidence-based assessment tools.

Types

Working group members discussed four risk and lethality assessments for use with domestic violence and other gender-based violence offenses. Among those discussed as being widely utilized in Illinois were:

• Danger Assessment: Contains 20 items and an accompanying calendar, for indicating when abuse occurred, and is used to assess risk of homicide by an intimate partner.^[6]
• Domestic Violence Screening Instrument (DVSI): Designed to assess perpetrator’s risk of committing future domestic violence-related offenses.^[7]
• Lethality Assessment Program: Joint law enforcement and social service agency partnership that seeks to decrease domestic violence victims’ risk of being re-assaulted or killed by an intimate partner.^[8] The program is comprised of a Lethality Screen and Protocol Referral. The Lethality Screen is an 11-item tool adapted from the Danger Assessment for use with first responders and other practitioners providing on the ground support.^[9]
• Ontario Domestic Assault Risk Assessment (ODARA): Computes the likelihood that a perpetrator will assault their partner again based on responses to 13 items and comparisons to other perpetrators with similar assessment scores.^[10]

Utilization

Members reported that many agencies conduct risk assessments for domestic violence cases. According to one member, Cook county uses a general population risk assessment. Other members stated that some counties use the ODARA to assess risk for recidivism and that Winnebago county uses the DVSI at bond court for domestic violence offenses. Members also noted that law enforcement are being encouraged to use risk assessment tools in their police reports. Pretrial agencies have reached out to law enforcement to ask if risk assessment fields can be added to reports. Doing so helps to ensure that this information is available to the courts when pretrial decisions are being made. Also, members asserted that information in police reports has the potential to heavily influence initial appearance hearing decisions. Furthermore, others suggested that increased use of risk assessment tools by law enforcement increases both officer and victim safety.

Cindy Bischof Law

In addition, working group members considered how the use of risk and/or lethality assessments intersected with the Cindy Bischof Law. The Cindy Bischof Law went into effect on January 1, 2009.^[11] This legislation attempted to increase protections for domestic violence victims whose perpetrator had violated an order of protection. Specifically, the law’s passage enabled the courts to order that a risk assessment be conducted for order of protection violations and for them to be placed on electronic monitoring. Furthermore, the Cindy Bischof Law specified that a partner abuse intervention, pretrial, probation, or parole agency was to conduct the assessment, that these agencies were permitted access to the defendant’s criminal history for the purpose of completing the assessment, and that assessment findings were admissible in court.^[12] However, one member reported that some partner abuse intervention agencies have been unable to access the defendant’s criminal history for the purpose of completing an assessment when there has been an order of protection violation.

Efficacy

Working group members also discussed the importance of using risk and lethality assessment tools with demonstrated effectiveness. In addition, members stated that lethality and risk assessment tools have strengths and limitations, including whether they have been validated for use with the intended population. For example, whether there is evidence to support a tool’s validity or reliability with same-sex partners should be considered. Before one or more risk or lethality assessment tools is utilized to for making pretrial decisions, one member asserted that the validity and reliability of using these tools with this population should be examined. Furthermore, a critical concern expressed was whether validated risk and assessment tools have inherent biases. A review of several risk assessment tools used for sentencing decisions revealed that 10-25% of items were linked to a defendant’s socioeconomic characteristics, such as employment, education, and living situation.^[13] As a result, jurisdictions using risk and lethality assessment tools comprised of numerous socioeconomic indicators may unintentionally advantage defendants with a higher socioeconomic status.

Education and Training

Working group members’ assessment of the current availability of education and training for judges and law enforcement on domestic violence-related policies and procedures suggested there is a gap. For example, education for judges on best practices for interacting with domestic violence victims is needed. Members asserted that appropriate decorum does not exist beyond the limited number of judges who are regularly assigned to domestic violence divisions. Members reflected that recent state initiatives have improved training content and practices for law enforcement. Specifically, these improvements have been observed for legislatively mandated training on domestic violence, sexual assault, and related topics. However, one member asserted that law enforcement would benefit from additional training on how to identify domestic violence offenses using critical thinking techniques. Furthermore, it was noted that funding for law enforcement training in Illinois had been decreased in recent years.

Data Collection

Working group members stated that to the best of their knowledge that data on domestic violence or sexual assault pretrial practices are not currently collected, representing another potential gap and area of improvement. However, the SAFE-T Act established the Pretrial Practices Data Oversight Board; it specifies that this board is to identify current pretrial data collection efforts and to develop and implement strategies for gathering pretrial county level data on a quarterly basis. However, according to members, it is unclear what board recommended domestic violence-related data fields, if any, will be statutorily mandated. Other members reported that the Illinois Judicial Branch had been building a “data hub.” While one member described that integrating domestic violence-related data fields within this type of data reporting system could be a future goal, others remarked that it may challenging to obtain buy-in and participation from all departments and agencies.

Conclusion

The Domestic Violence Pretrial Practices Working Group, established by the Safe-T Act, identified current domestic violence pretrial practices in Illinois. Their assessment revealed strengths and opportunities for improvement. By documenting current domestic violence pretrial practices, the working group’s preliminary report provides a crucial foundation upon which members can develop recommendations for evidence-based improvements to court procedures following enactment of pretrial reform in Illinois. As the working group’s focus shifts from current practices to recommendations members will examine how implementation of the SAFE-T Act impacts the domestic violence pretrial practices outlined in this report. The group will also propose recommendations intended to mitigate the potential for negative domestic violence-related pretrial reform outcomes and increase the safety of gender-based violence victims in Illinois. Thus, the working group will continue to convene until its members have issued the group’s final report. While members, at their discretion, may issue the final report earlier, it is anticipated no later than March 2024.