Cook County judge rules she lacks power to find cash bail unconstitutional

(Updated at 12:02 p.m. June 28 to include a comment from the Illinois Attorney General’s office)

A Cook County Circuit Court judge on Wednesday dismissed a lawsuit that challenged the use of cash bail in the county’s criminal courts.

The decision in the lawsuit, first filed on behalf of two indigent detainees held in Cook County Jail pretrial in 2016, sought a declaration that it was unconstitutional to hold poor defendants in custody while those with access to money could walk free while they awaited trial.

Chancery Judge Celia G. Gamrath ruled that the lawsuit sought a ruling that was beyond her power. The relief sought by the plaintiffs, she wrote, “is not authorized or envisioned by Illinois law,” which includes a plaintiff’s ability to pay as one of many factors for judges to consider in setting bail. The remedy for any defendant held pretrial because of an inability to pay, wrote Gamrath, is to challenge the bail set in that case, not to seek a broad order prohibiting cash bail.

One of the attorneys for the plaintiffs, Matthew J. Piers, said Wednesday that he would appeal.

The suit was part of a effort by civil rights attorneys and community activists to force bail reform in Cook County and around the country.  The lawsuit was filed in late 2016 against judges involved in setting bail, as well as Cook County sheriff Tom Dart, who is in charge of the jail where pretrial detainees are held.

For years the bail system has been under attack, as the jail for years was overcrowded with detainees who, Dart and many other officials said, did not need to be incarcerated. Injustice Watch in 2016 documented an arbitrary system, in which bail amounts varied from courthouse to courthouse, and from judge to judge, within the county.

Under the watchful eye of the state Supreme Court, officials including  County Board President Toni Preckwinkle, Cook County Public Defender Amy Campanelli, and Cook County State’s Attorney Kim Foxx jointly worked to push for reform in how judges set bail.

The lawsuit, brought by attorney Piers and the Washington public interest law firm Civil Rights Corps, was controversial from the start. Dart complained he should have been included in those suing for reform, not those sued, and he was soon after dropped from the case. Judges complained the suit was unfair.

Once the lawsuit was filed, efforts to reform the bail system in Cook County accelerated, though officials said the lawsuit was not a factor. In July 2017, Chief Judge Timothy Evans announced sweeping reforms of the bail system, requiring judges not to hold defendants in jail only because of their inability to pay.

That order came days before a report was released by former U.S. attorney general Eric Holder, who concluded the Cook County bail system was “unfair” and “unjust” after studying the system at the request of Campanelli.

Piers and other reform advocates have contended that the changes could be wiped out by a future chief judge. He said he hopes that on appeal, the Illinois Appellate Court concludes the system is unconstitutional.

“Primarily [Gamrath] ducked the legal issues and we’re looking forward to the opportunity to argue those points,” he said.

Following Gamrath’s ruling, Pat Milhizer, Evans’s spokesman, declined to comment, referring the press to the Illinois Attorney General’s office, which represented the judges in the lawsuit.

Attorney General’s office spokeswoman Maura Possley said in a statement Thursday that “important steps were taken to address the need for bail reform during the pendency of this case,” referencing Evans’s reform order.

The Cook County jail population has dropped by about 1,500 inmates in the wake of the order. Sharlyn Grace, co-founder of the Chicago Community Bond Fund, which advocates for an end to money bail and supported the lawsuit, said many defendants are still being assigned cash bail amounts they cannot afford. She cited the group’s court-watching report finding that about half of defendants given cash bail after the new rule was instituted were not asked about their ability to pay, or were assigned bail they could not afford.

Injustice Watch reported last fall that even under the reform order, different judges showed disparities in how high they set bail and how often they assigned money bail rather than release a defendant pending trial.

“We are going to explore all options to ensure people are not incarcerated pretrial,” Grace said. “We’re optimistic that we’re going to get a good result, and a result that will give us binding and permanent statement on this.”