Pretrial Fairness Act: Conditions Hearing as Sole Remedy When State Fails to Prove Detention Burden

Introduction

People v. Cousins (2025 IL 130866) is a landmark decision by the Illinois Supreme Court interpreting the Pretrial Fairness Act (725 ILCS 5/110-6.1). In this case, the State sought to deny pretrial release to Antonio Cousins Jr., who faced multiple firearm-related charges, including aggravated discharge of a firearm and being an armed habitual criminal. After a protracted and unconventional hearing in Peoria County—during which Cousins represented himself—the circuit court denied release on a form check‐box finding of “dangerousness.” The Fourth District Appellate Court reversed, concluding the State had not proved by clear and convincing evidence that no set of conditions could mitigate any danger. The Supreme Court of Illinois was asked to decide whether, upon such a failure by the State, the proper remedy is a second detention hearing or a direct remand for a conditions‐of‐release hearing.

Summary of the Judgment

Justice Holder White, writing for a unanimous court, held:

The Pretrial Fairness Act presumes release for every defendant unless the State proves three elements by clear and convincing evidence: (1) the defendant committed a detainable offense, (2) the defendant poses a real and present threat to safety, and (3) no condition or combination of conditions can mitigate that threat or risk of willful flight.
Here, the State never presented evidence or argument on the third element—whether any conditions of release could neutralize the alleged danger.
Because the State failed to satisfy its own burden and was not prevented from offering proof, detention was unlawful and the presumption of release remained intact.
The appropriate remedy is not a second detention hearing but rather a remand for the circuit court to set and impose the least restrictive conditions necessary to ensure appearance and community safety.
The appellate court’s judgment is affirmed in part (that the burden was not met) and reversed in part (remedy of a new detention hearing). The cause is remanded with directions to hold a conditions‐of‐release hearing.

Analysis

Precedents Cited

The Court’s opinion relies on several key precedents that shaped the interpretation of the Pretrial Fairness Act and appellate review standards:

People v. Mikolaitis, 2024 IL 130693 – Reaffirmed that every defendant is presumed eligible for pretrial release and clarified the three‐part burden the State must meet under Section 110-6.1(e): detainable offense, real present threat, and unmitigable danger.
People v. Sorrentino, 2024 IL App (1st) 232363 – Held that if the State fails on any element of the detention burden, detention is unlawful and release must follow under conditions consistent with Section 110-5 and 110-10.
People v. Clark, 2024 IL 130364 and People v. Webster, 2023 IL 128428 – Established that the question of proper appellate remedy for statutory misapplication is reviewed de novo, emphasizing fidelity to legislative intent.

Legal Reasoning

The Court’s reasoning proceeds in three steps:

Statutory Framework and Burden of Proof
Under 725 ILCS 5/110-6.1(e), the presumption of release is only overcome if the State proves by clear and convincing evidence each of:
- Proof evident or presumption great that the defendant committed a qualifying offense.
- Real and present threat to community safety based on specific facts.
- No condition or combination of conditions can mitigate the threat or risk of flight.
Record Evaluation
The opinion surveyed the pretrial bond report, the defendant’s three prior felonies, his single failure to appear, and the charged offenses’ seriousness. Yet the State never addressed—or offered evidence on—the third statutory element. Nor did the trial judge make any written findings on why no conditions could suffice, as required by Section 110-6.1(h)(1). A checked box on a form was insufficient.
Appropriate Remedy
The State conceded (and the record confirmed) it had full opportunity to present proof at the original hearing. Given its failure to carry its burden, legislative intent demands the presumption of release apply. A second detention hearing would allow the State “a second bite at the apple,” undermining the statute’s goal of limiting unnecessary pretrial detention. Instead, the Court ordered remand for a hearing to set the least restrictive conditions consistent with securing appearance and safety—i.e., the typical conditions hearing under Sections 110-5(c) and 110-10.

Impact

People v. Cousins clarifies two critical points under the Pretrial Fairness Act:

Burden Diligence
Prosecutors must be fully prepared to prove each element of the detention burden. Failure to address the conditions factor means detention is unlawful—and not subject to repeated rehearings.
Remedy Prescription
Appellate courts cannot remand for fresh detention hearings when the State simply fails to satisfy its burden; instead, they must remand directly for a conditions‐of‐release hearing. This protects defendants’ liberty interests and curbs unnecessary pretrial incarceration.
Broader Pretrial Reform
The decision strengthens the legislative scheme promoting fairer, evidence‐based pretrial practices and will likely reduce the number of prolonged detentions where the record lacks a full demonstration of unmitigable risk.

Complex Concepts Simplified

Clear and Convincing Evidence: A middle‐level standard of proof, more demanding than “preponderance of the evidence” but less than “beyond a reasonable doubt.” It requires that the truth of the proposition (e.g., no conditions can mitigate risk) be highly probable.
Presumption of Release: Every person charged with an eligible offense is assumed entitled to pretrial release unless the State overcomes that presumption by meeting its statutory burden.
Detainable Offense: Certain serious charges—such as gun crimes and habitual criminal allegations—automatically qualify for potential detention, subject still to proof of danger and unmitigability.
Real and Present Threat: A fact‐specific inquiry into whether the defendant’s release poses an actual danger to individuals or the community, not merely a theoretical risk.
Least Restrictive Conditions: Under Sections 110-5(c) and 110-10, courts must impose only those conditions (e.g., electronic monitoring, travel restrictions, supervision) necessary to ensure court appearance and public safety, avoiding undue deprivation of liberty.

Conclusion

People v. Cousins enshrines a precise, pro‐defendant remedy when the State cannot meet the Pretrial Fairness Act’s stringent three‐part burden: mandate a conditions hearing rather than a repeat detention hearing. By reaffirming the presumption of release and insisting on meaningful, written findings, the Illinois Supreme Court has strengthened due process protections in the pretrial context. Prosecutors must now prepare comprehensive proofs on dangerousness and unmitigability—failing which defendants will secure release under the least restrictive terms possible. This decision advances the broader objectives of pretrial reform by curbing unwarranted detention and promoting procedural clarity.