Lawsuit pits advocates of Cook County bail reform against each other

Sheriff Tom Dart’s effort to dismiss a pending lawsuit that contends poor suspects are illegally held in Cook County Jail awaiting trial simply because they lack funds has exposed a rift between advocates calling for bail reform.

The lawsuit has created what seems an awkward position for Dart, who has been a vocal opponent of the county’s cash bail system. The sheriff has repeatedly and publicly complained that too many suspects are kept in custody pretrial even though they are not accused of violent crimes and, in many cases, are in need of mental health or substance abuse treatment rather than jail. Weeks after the lawsuit was filed, naming Cook County bond judges and Dart as defendants, the sheriff publicly called for an end to cash bail.

But Dart’s office has contended from the time that the lawsuit was filed in October that it wrongly named him, as custodian holding the inmates in custody, as a defendant in the case. “We have a front row seat in the Cook County Jail to unjust incarceration,” said Dart’s chief policy officer, Cara Smith, at the time. “We are perplexed at being named one of the defendants. It seems we would be more properly situated at the other side of the ‘v.’”

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This past week, the sheriff did something about it: He and the Cook County judges separately filed motions to dismiss the lawsuit. Smith explained in an interview Tuesday that the lawsuit “has done nothing but complicate” the sheriff’s efforts to accomplish reform: “Litigation is not the way to solve this problem.”

But lawyers for the inmates who brought the lawsuit contend that efforts to accomplish reform without the weight of a lawsuit to effect change are doomed to fail in an Illinois political climate that often seems incapable of passing sweeping legislation.

Litigation is the most effective way to deal with a “human rights emergency” by adding needed pressure to reform the bail system, said Alec Karakatsanis, founder of Civil Rights Corps, who is one of the attorneys in the Cook County case and others in jurisdictions around the country.

“We find it disappointing that Sheriff Dart has chosen to try and fight the effort to prevent incarceration on the basis of poverty,” said Matthew J. Piers, another attorney who represents the inmates.

Dart “wants to be seen by the public as caring about the plight of the people in his jail but he doesn’t actually want to do anything to solve the problem,” Karakatsanis said.

Dart’s objection to the lawsuit stands in contrast to the response of sheriff’s offices in other large counties.

In Harris County, Texas, the newly elected sheriff contended in court filings in November that the then-incumbent sheriff’s effort to dismiss a lawsuit challenging the bail system there was the wrong approach. “I believe that the Sheriff should be a party to the current lawsuit,” Ed Gonzalez wrote in a November affidavit, saying he was eager to participate in the lawsuit — which accused the county of illegally jailing suspects who are too poor to post bond — “in a way that ensures that Harris County has a constitutional post-arrest system.”

And in San Francisco, after first objecting over procedural issues to a lawsuit arguing that the bail system there unfairly punishes the poor, attorneys for Sheriff Vicki Hennessy wrote in court papers that she was legally required to enforce state bail law. But, Hennessy’s lawyers stated in a court filing in November, any system that kept indigent suspects locked up and permitted wealthier defendants to go free “does not serve the interests of the government or the public, and unfairly discriminates against the poor. It transforms money bail from its limited purpose in securing the appearance of the accused at trial into an all-purpose denial of liberty for the indigent.”

While Hennessy is required to enforce the law until it is ruled unconstitutional, San Francisco city attorneys Dennis Herrera and Jeremy Goldman wrote on Hennessy’s behalf, “She is not required to defend it, and she will not.”

Hennessy “has not taken a position on whether litigation is good or bad” in terms of enacting bail reform, said Eileen Hirst, the San Francisco sheriff’s chief of staff.

Dart’s policy director, Smith, said in an interview that the lawsuit Dart is facing differs from those in San Francisco and Harris County in that “the underlying bail statutes are not similar.” Both San Francisco and Harris County use fixed bail schedules to determine how much money a suspect must pay for release based on the alleged offense.

The Illinois statute calls for judges to set bail taking into account as many as three dozen different factors. Once bail is set, defendants remain in custody unless and until they can post 10 percent cash or property. Many defendants who commit misdemeanors or nonviolent felonies end up receiving bail that exceeds their ability to pay. Injustice Watch reported in November that the bail that is set has often depended on the arbitrariness of which judge is sitting on the bench, and in which courthouse in Cook County.

“The issue of this litigation is, were it successful, it would simply determine that our bail statute was discriminatory,” Smith said in an interview Thursday. “It would not fix it. So our energy has been focused on fixing it. … The sheriff’s advocacy and policy position on this is not at odds with the position we’ve taken on the lawsuit.”

Ending the system of cash bail, so far, has been beyond where state legislators have seemed inclined to go. Dart has pushed for legislation in Springfield that would give the sheriff authority to seek bond reductions for inmates who do not belong behind bars.

That bill, if enacted, would fall far short of ending cash bail. “It’s a completely untenable moral and logical position to claim that something is unconstitutional and to continue doing it,” Karakatsanis said.

Correction: A previous version of this story stated that Sheriff Dart joined the Cook County judges in a motion to dismiss the lawsuit. We have updated to clarify that the two parties filed separate motions. 

Injustice Watch reporters Emily Hoerner and Jeanne Kuang contributed to this report.