Kane County State’s Attorney Jamie Mosser told the Aurora Beacon about a woman with mental health issues who has been repeatedly trespassing at a home and claimed that there is nothing prosecutors can do to keep her away from the house other than for police to cite and release her.
Trespass to Residence is a Class A misdemeanor or a Class 4 felony. There is no requirement that police cite and release people for those levels of charges. Even if she was being charged with a lower level version of trespass, police would have been able to arrest this individual during the initial incident had she presented a danger to others. After the initial citation was issued, police could have arrested her if she continued to engage in criminal behavior. Prosecutors would also be able to charge the person with violating the terms of their pretrial release, and a judge could hold them in custody for that violation.
Law enforcement retains discretion to arrest people alleged to pose a threat to someone else in the community. The Pretrial Fairness Act gives law enforcement flexibility to issue a citation to people charged with low-level offenses rather than book them into jail.
The Pretrial Fairness Act gives police the authority to release anyone arrested for an offense not eligible for detention and to use citations in lieu of arrest for Class B and C misdemeanors and petty or business offenses. Law enforcement can still arrest someone if they “reasonably believe the accused poses a threat to the community or any person,” if the alleged “criminal activity persist[s] after [the] issuance of a citation” and/or if that person requires immediate medical attention. People who are arrested by police can be held overnight to appear before a judge, who can set conditions of their pretrial release.
This process reduces unnecessary pretrial detention (which actually increases the likelihood of new arrests in the future), keeps jails and courts running more efficiently, and uses public resources wisely to focus on the most serious cases.