New Cook County bond court rules appear to reduce, but not eliminate, problems

A month after new rules were enacted for Cook County’s bond court, the system still appears to be subject to variances in how bond is set, with amounts still set in some cases beyond the ability of defendants to pay, an Injustice Watch review reveals.

The disparity appears to depend upon which judge is presiding over the courtroom. Some judges appear more likely than others to require money to secure release or home confinement, despite the rules designed to ensure that suspects’ ability to pay does not determine whether they are held pretrial or released.

The assessment is based on observing 453 weekday cases in felony bond court since the new rules took effect Sept. 18. The rules were intended to resolve longstanding problems in bail hearings, with hundreds of suspects accused of nonviolent crimes kept in custody simply because they could not afford the bail ordered by Cook County Circuit Court judges.

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Though some old problems appear to remain, Injustice Watch reporters observed that judges spent more time considering each case, and more defendants are being released without having to post money.

Cook County Court Chief Judge Timothy C. Evans first announced July 17 that the court would adopt the new rules. The order came after repeated criticisms of a system that caused the county jail to be overcrowded with defendants who were not deemed a risk to society, and the release of dangerous suspects who were able to post high bonds. Public officials including Cook County Board President Toni Preckwinkle, Sheriff Thomas J. Dart, Chief Public Defender Amy Campanelli and State’s Attorney Kimberly M. Foxx all were among those pushing for reforms.

Injustice Watch reported in 2016 that the system of setting bail was plagued by arbitrariness, with great variation in bond decisions from judge to judge and from courtroom to courtroom. In Cook County’s central bond court, which sees the largest group of new felony cases daily, defendants were swiftly brought before the judge with hearings often lasting only a minute.

Evans assigned a brand new group of judges to bond court when the rules took effect last month.

Jail inmates filed a lawsuit last year against judges overseeing bond court, seeking a declaration that it is unconstitutional to hold defendants because they cannot pay bail money.

An Illinois assistant attorney general argued last month before Circuit Judge Celia G. Gamrath that the lawsuit should be dismissed because the new rules made the lawsuit moot. But Alexa Van Brunt, an attorney for the detainees, responded in a court filing last week that in the first month of operation, “it is evident that there has been no cessation of the complained of practices.”

Sharone Mitchell, program director at the Illinois Justice Project, said during a panel discussion last week that because the new order does not carry the force of a law or a Supreme Court decision, it operates more like a “suggestion.”

“Some judges are taking the suggestion and other judges are not,” said Mitchell. “That’s a problem with the entire system, how it’s always been. Your freedom is based on what judge you always happen to get.”

The Injustice Watch review found a significant drop in the number of cases in which judges required monetary bond to be posted for a defendant’s release. Fewer than one quarter of the defendants were required to post cash to be freed from jail; in contrast, last year most defendants were required to do so.

But the results seemed to fall short of Evans’s declaration in July that “no one would be held pretrial based upon an inability to pay.”

About seven percent of defendants seen by Injustice Watch were given monetary bonds higher than they said they could afford. Cook County Circuit Court Judge Michael R. Clancy was far more likely to issue such bonds than the other three judges included in the review.

While Judges John F. Lyke, Jr., Mary C. Marubio, and Stephanie K. Miller issued bonds higher than the defendant could pay less than two percent of the time, Clancy issued such bonds in 25 percent of his cases that were reviewed.

The changes to bond court are being closely watched. A spokesman for Chief Judge Evans said Monday that Evans is committed to studying statistics over the first year of the new system, and will be discussing the changes publicly “at a time to be determined.”

Danita Ivory, an attorney supervisor in the Cook County Public Defender’s office, said her office has tracked bail decisions before and after Evans’s rule. The office has seen an increase in releases and in cash bail amounts that defendants can afford, Ivory said.

The Cook County State’s Attorney’s office declined to comment for this story.

Separately, the Chicago Community Bond Fund reported last week that in the first month of the new rule, bonds were issued higher than defendants could afford in about 10 percent of the cases observed by volunteers.

Injustice Watch reporters observed that the use of electronic monitoring, in which defendants are assigned house arrest enforced by an ankle bracelet as a condition of pretrial release, also varied by judge.

Judge Lyke was more likely to issue electronic home monitoring than the other judges included in the review. He added electronic monitoring or a curfew enforced by the ankle bracelet in roughly one third of the cases he oversaw — and only in about a third of those was electronic monitoring recommended by the court’s pretrial services department, which uses a risk assessment tool designed to objectively determine a defendant’s likelihood to commit new crimes or return to court if released.

The other three judges ordered electronic monitoring in about 20 percent of their cases.

In more than half of the cases Injustice Watch observed in which judges required electronic monitoring, the condition had not been recommended by pretrial services.

Advocates have expressed concern about using electronic monitoring as a replacement for jail, noting home confinement still restricts the liberty of individuals who have not been convicted of a crime. Evans’s bond court rule orders judges to “impose the least restrictive conditions or combination of conditions necessary to reasonably assure the appearance of the defendant for further court proceedings.”

Injustice Watch reporters Emily Hoerner and Jeanne Kuang and reporting fellows Mari Cohen and Olivia Stovicek prepared this report.