Former US Attorney Holder calls Cook County bail system ‘unjust, costly’

Eric Holder

The Aspen Institute / Flickr

Former U.S. Attorney General Eric Holder


[UPDATE 7/28, 10:16 am: A spokesman for Chief Judge Timothy Evans said his order to reform Cook County’s bail system had been in the works since September 2016, and is not related to the memorandum or anything else.]

Days before Cook County’s Chief Judge announced sweeping changes to the county’s cash bail system, former U.S. Attorney General Eric Holder issued a damning report that slammed the system as unconstitutional and unnecessarily costly.

Investigations that expose, influence and inform. Emailed directly to you.


“Cook County has continued to operate an unconstitutional wealth-based pretrial system that is irrational, unjust, costly, and disproportionately affects minority communities,” the report by Holder and three other members of his law firm, Covington and Burling LLP, stated. The criticisms reflect the harsh view of cash bail that the U.S. Justice Department adopted during the administration of former President Barack Obama, when Holder was the attorney general.

The report, a copy of which was obtained by Injustice Watch on Thursday,  concluded that the longstanding system violated both the equal protection clause of the U.S. Constitution by confining some suspects based solely on their inability to pay the required cash bail, and the Eighth Amendment prohibition against excessive bail.

A class action lawsuit was filed last October against several Cook County bond court judges on behalf of detained suspects, contending the system was unconstitutional; the case remains pending.

Injustice Watch last year documented that the system was arbitrary, with the amount of bail set often regardless of the suspects’ ability to pay and often varying widely from one courtroom to the next.

Holder’s report, prepared for chief public defender Amy Campanelli, recommends that both the state Supreme Court and the Cook County presiding judge adopt explicit rules stating that defendants should not be held solely on their inability to pay.

That change was the heart of the new rule that Cook County Chief Judge Timothy Evans announced days later. Evans’s office could not be reached for comment.

The Illinois Supreme Court, which oversees the Cook County courts and all other circuit courts statewide, has not adopted any new rules regarding bail.

Holder could not be reached Thursday afternoon for comment on whether the changes announced by Evans went far enough, or whether he believed the state Supreme Court needed to separately act.

Campanelli said Thursday that she thought it premature to comment on the report.

The report outlined several other ways Cook County could improve the bail system, including better educating judges and collecting better data on pretrial decisions and outcomes.

The memorandum also highlighted longstanding problems with the county’s pretrial services department, including the need for more financial resources and training, as well as eliminating overcrowding issues at bail hearings.  “Despite the agreement of most Cook County stakeholders that these reforms are essential, many of the same problems continue to plague pretrial services years later,” the report said.

Holder’s report notes that the bail system has come under criticism for years, causing unnecessary overcrowding and running up daily costs of more than $1 million to detain suspects awaiting trial, though most of them are deemed nonviolent.

“Illinois taxpayers are left paying a hefty price for an ineffective, irrational, and deeply harmful pretrial system,” the report said.