2024 Domestic Violence Pretrial Practices Working Group Final Report: Recommendations for Improving Court Procedures

Introduction

SAFE-T Act

The Illinois Safety, Accountability, Fairness, and Equity-Today Act (SAFE-T Act) was signed into law on February 22, 2021 by Illinois Governor JB Pritzker.^[1] The SAFE-T Act enacts criminal justice reform in critical justice system areas, including key reforms to policing, pretrial, and corrections practices.^[2] On December 6, 2022, an amendment to the SAFE-T Act was signed that clarified language in the SAFE-T Act. It delineated that the court would have oversight of electronic monitoring and included trespassing violation guidelines.^[3] All pretrial reforms outlined in the SAFE-T Act went into effect in Illinois on September 18, 2023.^[4]

During pretrial, decisions are made regarding arrest, release, detention, supervision conditions, charging, and pleas.^[5] Thus, pretrial reforms have important implications for victims of domestic violence and other forms of gender-based violence. If domestic violence arrestees are released, research suggests they may be released with one or more conditions, such as being restricted from returning to a common residence, having a contact order, requiring counseling or drug treatment, and being electronically monitored.^[6]

Domestic Violence Pretrial Practices Working Group

The SAFE-T Act established the Domestic Violence Pretrial Practices Working Group. The working group formed in March 2022 and released their preliminary report on current domestic violence pretrial practices in March 2023.^[7] The preliminary report reflected the working group’s assessment of current domestic violence pretrial practices as of November 30, 2022. This report provides the working group’s recommendations for making evidence-based improvements to court procedures and satisfies their statutory obligation to submit a final report detailing those recommendations.

The working group is comprised of 12 members (Table 1). Illinois Criminal Justice Information Authority Executive Director Delrice Adams chaired the working group.

Table 1

Domestic Violence Pretrial Practices Working Group Membership List

Working Group Recommendations

The domestic violence pretrial practices working group provided the following eight recommendations for improving domestic violence pretrial practice court procedures.

Recommendation #1

Provide more education on firearms to domestic violence pretrial practice stakeholders, including how to document access to firearms and the availability of remedies and protections, such as firearm restraining orders, orders of protection, and clear and present danger reporting.

The working group identified several remedies and protections available to domestic violence victims and stakeholders. These included firearm restraining orders, orders of protection, and clear and present danger reporting. Working group members recommended educating stakeholders in domestic violence pretrial practices, such as first responders and practitioners, about mechanisms for limiting domestic violence offender’s access to firearms. In addition, the group recommended that first responders ask about the accused’s history of firearm use and current access. Increased awareness of an accused’s firearm history and firearm-related protections can result in greater access to protections for domestic violence victims, thus, increasing their sense of safety and decreasing the likelihood that a firearm could be used to harm them.

Recommendation #2

Improve communication between family court and criminal justice systems, such as misdemeanor, felony, and juvenile court (e.g., delinquency; abuse and neglect).

The working group identified a lack of communication and information exchange between family court and criminal justice systems as impediments to the safety of victims and their children. Individuals may be involved in multiple court processes. Without an exchange of information between different courts, such as family, misdemeanor, felony, and juvenile courts, decisions may be made in one court that negatively impact proceedings and outcomes in another court. The group also contemplated the difficulty in discerning between the abuser and victim and noted that there may be overlap. They observed that the individual identified as the victim may correspond to who first contacted law enforcement whether or not they were the sole or primary abuser. Better communication across systems can help ensure that the court has the necessary information to identify the abuser.

Recommendation #3

Identify risk and lethality indicators to be gathered by law enforcement, state’s attorneys, pretrial officers, and other criminal justice system stakeholders, and provide accompanying training.

The working group recognized the critical nature or importance of identifying specific risk and lethality indicators. Law enforcement, state’s attorneys, pretrial officers, and the judiciary need to gather information about these indicators. Members asserted that having such a document is crucial because police reports do not typically contain the information necessary to determine if a victim is at risk of being re-abused or killed. Judges rely on reports from pretrial services and evidence presented in a hearing to set pretrial conditions. In addition, members noted the limited time available to talk with the victim on scene. Therefore, having a document with a list of indicators to ask or assess would help to ensure the information is gathered. The period between arrest and the detention decision is also very short, with little time for the court to obtain additional information from the victim. This short time span further necessitates that law enforcement collect information that is comprehensive and indicates risks.

The working group also identified some potential risk and lethality indicators to include in a document provided to law enforcement. These indicators cover whether the victim feared for their safety, children were present, weapons were in the home or could be accessed by the accused, and the accused had a criminal history. To facilitate utilization of a risk and lethality document as a supplement to police reports in domestic violence incidents, members further recommended formalized training for law enforcement on the document.

Recommendation #4

Consult with victims to identify best practices for law enforcement to obtain information necessary for assessing risk and lethality in their response to domestic violence incidents and integrate those practices within required law enforcement training programs.

The working group underscored the importance of consulting with victims to determine best practices for obtaining information on risk and lethality indicators when law enforcement responds to domestic violence incidents. Enhanced training, policies, and protocols for law enforcement professionals should be adopted with the goal of addressing risk and lethality and victims’ trauma, as well as eliminating secondary victimization. Specifically, law enforcement professionals need to be educated on the questions that may cause further harm to the victim. Research has shown that some victims experience secondary victimization; this involves feeling re-traumatized due to negative interactions with others in which the victim may be blamed or questions may be asked insensitively.^[8]

Recommendation #5

Increase the use of risk and lethality assessments by judges and state’s attorneys in domestic violence pretrial decision-making, such as in filing a petition to detain and in determining whether to release or detain domestic violence arrestees.

The working group stated that more judges and state’s attorneys should use risk and lethality assessment tools to inform their decision-making during pretrial for domestic violence offenses. Arrestees held for an initial appearance hearing may be assessed using a validated domestic violence risk assessment tool.^[9] The risk assessment can be used by judges to assist them in deciding whether to detain or release the accused at a future hearing^[10] or to determine release conditions.^[11] Working group members asserted that risk assessments and scoring should become part of the accused individual’s record. The assessment should then be considered by the state’s attorney when deciding whether to file a petition to detain. Members acknowledged that the results of a risk assessment alone cannot be used to detain the accused individual,^[12] but they affirmed that they should be used by the judge to help make that determination.

Recommendation #6

Explore processes for amending legislation to require law enforcement to include identified risk and lethality indicators in police reports when responding to domestic violence calls.

The working group asserted legislative changes would be needed to ensure that risk and lethality indicators would be collected by law enforcement when responding to domestic violence calls and documented in police reports. The working group identified the Illinois Domestic Violence Act (IDVA) as a statute that could be modified to require law enforcement to include domestic violence-related risk and lethality indicators in police reports. Members suggested that the law enforcement responsibility section of the IDVA could be amended to require law enforcement to document risk and lethality indicators, with the exact indicators identified. However, members contended that any proposed changes to the IDVA should be done in direct consultation with victim services stakeholders in an effort to ensure that changes to law enforcement responsibilities increase victim safety and reduce secondary victimization. In addition, criminal justice stakeholders should consider new legislation that would amend pretrial reform provisions in the SAFE-T Act to further institutionalize the practice. Provisions should specify risk and lethality indicators that law enforcement must document in police reports.

Recommendation #7

Expand the implementation of local and regional domestic violence pretrial practice best practice initiatives.

The working group discussed various promising initiatives for local and regional domestic violence pretrial practices that, if expanded, could increase victim safety. These initiatives were primarily focused on risk and lethality assessment tools. One promising practice was Winnebago County’s use of risk and lethality indicators in responding to domestic violence cases. The county has a domestic violence coordinated court system comprised of a dedicated domestic criminal court and domestic violence civil court.^[13] The Domestic Violence Screening Instrument is used by the court’s pretrial services department to inform decision-making. In August 2023, a strangulation supplement was added, to be used in calls where strangulation is alleged or suspected. Members asserted that the practices in Winnebago County should be expanded to other Illinois counties.

The working group referenced another initiative in which Kane County developed a form for law enforcement to use to assess risk and lethality when responding to domestic violence incidents in this county. The county’s court services department anticipated that more than three-quarters of detention eligible offenses would be related to domestic violence after the SAFE-T Act’s effective date. To prepare for this shift, stakeholders in Kane County developed a form for law enforcement professionals to complete when making a domestic violence related arrest and then to include it with charging documents. However, members reflected that utilization of the supplemental form in Kane County has been limited. They recommended that law enforcement professionals should consistently use the form when responding to domestic violence incidents. Furthermore, for best practices, information contained in the form should be shared with court services to inform the court’s assessment of domestic violence arrestees and its decision to detain.

Recommendation #8

Systematically gather domestic violence pretrial data on detention petitions, arrestee release and detention, and rearrest.

The working group recommended that the courts systematically collect specific domestic violence pretrial data. These data elements include:

• number of petitions to detain filed.
• number of arrestees charged with detention eligible offenses who were released.
• number of arrestees charged with detention eligible offenses who were detained.
• number of detention eligible arrestees who were released and then rearrested for a domestic violence offense, including the rearrest rate.

They also recommended that all the data listed above should be made available by jurisdiction or judge to help inform how detention and release decisions vary across Illinois.

Conclusion

The Domestic Violence Pretrial Practices Working Group, established by the SAFE-T Act, identified recommendations for making evidence-based improvements to court procedures. In their recommendations, members stressed the importance of criminal justice stakeholders utilizing risk and lethality assessment tools in their responses to domestic violence incidents. This proposed use of tools spans from law enforcement’s initial interactions with victims through state’s attorneys and judges’ pretrial decision-making. Other recommendations emphasized the crucial role that domestic violence victims should have in shaping practices and the value of expanding promising local and regional initiatives. Furthermore, working group members recognized the need to collect data on pretrial practices to continue to inform improvements to court procedures.

This report satisfies the working group’s statutory obligation to submit a final report detailing domestic violence pretrial practice court recommendations. The implementation of one or more working group recommendations has the potential to improve not only domestic violence pretrial practice court procedures but also to increase domestic violence victims’ safety and, thus, benefit Illinois residents who are directly or indirectly impacted by domestic violence.