Defendants are still being held in Cook County Jail because bond court judges are ordering money bond they cannot afford, contrary to the chief judge’s order, a new report by advocates for bail reform concludes.
The report was released at a rally attended by dozens of local and nationwide groups seeking an end to money bond, a rally held on the one-year anniversary of the bond reform changes that Cook County Circuit Court Chief Judge Timothy C. Evans ordered.
Meanwhile, Evans’s office issued its own statement, hailing the decline in inmates charged with non-violent offenses who remain held pretrial simply because they cannot afford the money bond set by judges. He described the change as “evolution.”
Both Evans’s office and the bond reform advocates agree that about 2,700 inmates, about 40 percent of the jail population, remain locked up in Cook County jail because they are unable to pay the 10 percent bond ordered by judges. The two sides appear to disagree on whether that number represents a success.
The chief judge’s office noted that as of the end of June, almost 72 percent of those in custody on money bail faced charges that they committed a violent offense or a crime involving a gun or “persons-related.”
A statement in his name noted 78% of felony defendants in Cook County are released while their cases are pending, an increase of nearly 20% since before the order. The population of Cook County Jail also stood at 6,314 inmates as of September 17, a drop of about 15% from 7,490 a year before.
“This is what evolution looks like in the administration of justice,” Evans was quoted as saying. “We are striking a balance between protecting the public and protecting the rights of the accused, who are presumed innocent.”
Evans ordered the bail reforms last year amidst calls by public officials including the state’s attorney, the Cook County public defender, the county board president, and the sheriff for a reform of the system that had kept thousands of those accused of crimes, many of them accused of nonviolent crimes, locked up awaiting trial because they could not afford bail.
A lawsuit was filed on behalf of jailed inmates, mirroring suits in several other jurisdictions across the country, challenging the constitutionality of holding defendants pretrial simply because they cannot raise the bail required by judges.
Evans last year ordered sweeping changes to Cook County’s bail system, stating they are “intended to ensure that no defendant in held in custody prior to trial solely because the defendant cannot afford to post bail.” His order required that starting September 18, 2017, felony bond court judges set monetary bail only in an amount a defendant is able to pay. If the defendant poses a danger, judges are to make a specific finding that release on bail is not appropriate, rather than setting a high bail amount.
Jailed individuals are also entitled under the new rules of a review of their conditions within a week of bail being set.
The bond fund report notes that the impact of that order has diminished over time. “In the first three months of the order taking effect, what we saw was this immediate decline [in the jail population], and judges were following the order,” said Sharlyn Grace, co-executive director of the Chicago Community Bond Fund, at the rally. “What we’re saying is that the decrease is not continuing, and it’s not far enough. Because there should be no one in Cook County Jail because of how much money they don’t have.”
The number of inmates in custody, she noted, has actually increased by several hundred people since December 2017, a few months after the order was implemented.
From the beginning, judges still imposed some bonds that they knew defendants were unable to pay, and things have gotten worse since, she said. “Judges in Central Bond Court and other criminal courtrooms around Cook County are following the order less and less each month since it took effect.”
The report indicates that in the first month of the order, defendants were given bond amounts they could not afford nine percent of the time; that number has now gone up to nearly 30% of all bonds set.
The report notes a larger percentage of people are being denied bond outright than in the first month of the order, and a smaller percentage of people are being released without posting any money. A fifth of the time, judges have failed to even obtain information about what a defendant was able to pay before setting a money bond.
In jurisdictions that have abolished money bail, judges determine whether the suspects, if released before trial, pose a danger to the community, and whether they are likely to fail to show up in court. Those who fail either assessment are held without bail; and those who do not are freed under conditions designed to ensure they return to court.
Judges have historically faced potential political risk in releasing defendants; negative consequences may follow if they release a defendant who then commits a violent crime.
“If judges were adhering to the order, the rate of unaffordable bonds would be 0%,” the new bail report says. “If current trends continue, the improved outcomes that initially resulted from the implementation of the order will be all but gone in a matter of months.”
At the rally, speakers including individuals personally affected by bail rules in Cook County. Representatives from bond funds elsewhere in the country highlighted their intentions to continue advocating for change and for full implementation of the bond order.
“We know individuals who are placed in jail… are two times more likely to plead guilty.” said Sharone Mitchell, Deputy Director of the Illinois Justice Project. “We know they are three times as likely to serve longer prison sentences than individuals who were rich enough to bond out. We cannot talk about mass incarceration, we cannot talk about wrongful convictions, unless we talk about the overuse of pretrial incarceration, which we see every single day in Cook County and every single day in jails and courthouses all across the United States.”
Even before Evans’s order, judges had been required by state law to “consider the defendant’s socio-economic circumstance” and set bail “[c]onsiderate of the financial ability of the accused.” But Injustice Watch reported in 2016 that bail was routinely set above defendants’ ability to pay, and the bail-setting system suffered from arbitrariness, with large variation in bond decisions from judge to judge and courtroom to courtroom.
Evans assigned a new group of judges to bond court when the rules took effect. Though reform advocates note limits—his order can be reversed by a future chief judge, and is not as sweeping as steps to eliminate cash bail in other jurisdictions— it has been considered a significant step.