Suspects who cannot make bail following arrest on nonviolent, weaponless felonies in Cook County are four times more likely to end up convicted than suspects who are not held in custody before trial, a study of court data shows.
The finding was included in a lawsuit filed in state court this month challenging Cook County’s pretrial system, which commonly demands that suspects post money to avoid being held in jail. The discrepancy mirrors a harsh fact turning up in data gathered in Cook County and several other places: People who cannot raise bail to remain free before trial are both more likely to be convicted and more likely to receive harsher sentences.
In the Cook County study, based on court data from 2011 to 2013, those held in custody on the lowest class of felony charges are not only more likely to end up with convictions; they also are 10 times as likely to be sentenced to state prison as those with the same charges who are released on bond before trial. The analysis, undertaken in preparation for the lawsuit, shows that pattern is also true, though less striking, for more serious crimes.
“If you’re locked up on a low-grade felony before your trial, your chances of being convicted and sentenced to prison are an order of magnitude greater than if you’re free on bond,” said attorney Locke Bowman of the Roderick and Solange MacArthur Justice Center at Northwestern University’s Pritzker School of Law, one of the lawyers who brought the lawsuit. “That’s a stunning difference.”
The findings amount to one more significant consequence for suspects not convicted of any crime held in custody pretrial because they are unable to post bail. Advocates for bail reform note that being held in custody impacts suspects’ jobs and their families and creates the risk of harm, especially from other inmates, in custody. The lawsuit contends that it violates the Eighth Amendment’s prohibition against excessive bail to hold poor people in custody before their trials, while releasing people who can afford to post bond.
An Injustice Watch examination in October of the bail system reported that efforts by Cook County officials to release more pretrial defendants have faced a number of obstacles. The jail is filled with thousands of people each day who have not been convicted of anything but remain locked up because they cannot post the required bond, regardless of whether they pose any danger.
Research for the lawsuit discovered that people who remain locked up pretrial “were half as likely to be found not guilty or to have their charges dismissed as defendants who were never in custody,” the lawsuit states. “Persons facing the least serious felony charges who were kept in custody were one-fourth as likely to be found not guilty or have their charges dismissed as defendants who were never in custody.”
In a separate study, unconnected to the lawsuit, attorneys in the Cook County Public Defender’s office compiled their own examination over a six-week period this summer, of what happens to people arrested on charges of driving with a suspended license or driving under the influence.
The data, provided by the office to Injustice Watch, show that people who are taken into custody upon arrest overwhelmingly end up, at their bail hearing, pleading guilty to the charge in return for a two-day sentence reflecting the time they were held in custody. In other words, they plead guilty and go home.
Many suspects stopped for driving on a suspended license are not taken into custody, however. In the non-custody traffic courts, defendants often end up without a conviction on their record and without ever spending time in custody. Instead, defendants are commonly given alternative sentencing such as a fine, a period of supervision, or mandatory participation in a substance-abuse program, after which their records are wiped clean.
“Every day there are people locked up who shouldn’t be because they were driving on suspended licenses,” said chief Public Defender Amy Campanelli. “And it is clear that once they are locked up, they will have a worse outcome than people who are not held in custody at all.”
The studies parallel findings across the country.
A study of Kentucky’s court system for the Laura and John Arnold Foundation found that people held in custody pretrial are more likely to receive harsh sentences. Studies of Philadelphia and Pittsburgh by Columbia University professors found that people held in custody on bail are more likely both to later plead guilty and to become repeat offenders after winning release. “The pretrial detention system may be negatively impacting both defendants and the public without producing any compensating public gain,” wrote Columbia computer science professor Arpit Gupta, together with Columbia economics student Christopher Hansman and Ethan Frenchman of the Maryland Office of the Public Defender.
A study published in July by the University of Pennsylvania Law School’s Quattrone Center for the Fair Administration of Justice found that out of thousands of misdemeanor defendants in Harris County, Texas, those who were jailed were 25 percent more likely to plead guilty than their counterparts who were released.
A study almost a decade ago by the New York Criminal Justice Agency found the same pattern in New York.
Researchers are still examining the cause of those correlations but cite a variety of possible causes. Those in custody may be more inclined, such as those in the Cook County public defender’s study, to plead guilty and be released regardless of guilt.
“If you’re locked up, you are vulnerable to being coerced into a plea,” said MacArthur Center attorney Bowman. “The state may come to you and say, ‘Well look, you’ve already spent a year in (jail). Why don’t you plead guilty and go home today?’”
Researchers note that those confined before trial have more trouble assisting in their defense. They also may not be offered the same chance to participate in diversion programs that end short of a conviction on their record. And those who are released pretrial have the chance to prove good behavior such as steady employment and community activity that a judge may look upon favorably during sentencing.
But researchers also leave open the possibility that the relationship is not causal at all.
As the author of the New York study, Mary T. Phillips, wrote, “It could be that judges are more willing to set bail, or to set high bail, for defendants they think will be convicted and sentenced to jail or prison,” so the same factors that influence judges to set bail also influence the outcome of the case.
Olivia Exstrum contributed reporting.