Illinois appeals court endorses small counties keeping healthy chunk of bond

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Curtis T. Lovelace was arrested for first-degree murder in Adams County in 2014 and spent 22 months in custody before finally, after a mistrial, his bail was reduced and his supporters raised $350,000 to arrange for his June 2016 release on bond.

Lovelace was acquitted after a retrial in March 2017, and free of the electronic monitoring that had been a condition of his release. But though Lovelace was cleared of the charge, Circuit Judge Robert G. Hardwick ruled that the Adams County Circuit Court clerk could retain more than $40,000 in administrative fees — 10 percent of the posted bond, plus costs of electronic monitoring.

The Lovelace Center for Criminal Defense

Curtis Lovelace

An Illinois appeals court panel last month ruled that the large fee — which lawyers pointed out to Hardwick would be imposed on someone who had been ruled indigent and whose time being prosecuted had been “financially devastating” — was proper and did not violate Lovelace’s rights.

The ruling comes amidst an effort to reform bail practices, in Illinois and across the country. Cook County’s judges made changes to their bail practices last year, in the midst of a lawsuit against them contending that the county’s bail practices discriminated against poor people by keeping them confined pretrial only because of their inability to pay.

Earlier, in 2015, Cook County Commissioner John Fritchey and Illinois State Rep. Ron Sandack pushed for a different reform, capping bail bond costs at $100. Under state law, absent a judge ruling to the contrary, 10 percent of the posted bond amount is routinely kept by the court system— in Lovelace’s case, $35,000.

The reform pushed by Fritchey and Sandack was limited, however: bail bond costs were capped only in counties with a population of more than three million people. That meant the reform applied only in Cook County.

Sharlyn Grace, staff attorney at the Chicago Appleseed Fund for Justice and co-founder of the Chicago Community Bond Fund, said she is concerned about taking money from communities that are involved in the criminal justice system and then using it to fund basic court services.

She added she also was concerned that detainees held on higher bond pay higher fees, since the administrative costs do not change: “The administration of the bond and the processing of all that is the same, regardless of the amount.”

In his appeal to the lower court ruling, Lovelace contended the bail bond statute treated defendants in Cook County differently than those in other counties without a reason for doing so, unconstitutional under the Illinois Constitution.

But the appeals court opinion, authored by Illinois Appellate Judge Robert J. Steigmann and joined by Judges Thomas M. Harris and Craig H. DeArmond, rejected the argument. While acknowledging that “because defendant posted bond in Adams County, he was required to pay a bail bond fee of $35,000, whereas an identical defendant in Cook County would have only paid $100,” the court found that the distinction could have been rational to the legislature, since larger counties might be able to fund the administration of their bail bond system by other methods.

Lindsay Hagy, an attorney with the Exoneration Project who represents Lovelace, said she intends to appeal the decision to the Illinois Supreme Court, contending the costs amount to an illegal fine. “There’s really no argument that, in addition to the electronic monitoring, the state spent $35,000 in any way to administer bail for Mr. Lovelace,” said Hagy.

Hagy said the last time the state Supreme Court reviewed the bond statute was 1970. “We’re at the point where our current system needs review,” she said. Grace contended the limit on bail bond costs could be extended to the entire state: “I think this is a situation in which the legislature should be amending the law to create uniform processes around the state in the interest of fairness,” she said.

The Adams County, IL, budget does not clearly indicate how much revenue is raised from bond fees, but the $35,000 bond fee retained from Lovelace amounts to more than five percent of the circuit clerk’s total fiscal year 2018 budget.

In its opinion, the appeals court cited a September 2017 opinion of the Seventh Circuit U.S. Court of Appeals that Illinois’s bail bond statute did not violate constitutional due process and equal protection rights. While the bond cost system may lead to different outcomes, the court said, those outcomes were not the result of different treatment among different groups — not sufficient for a violation of equal protection.

“If the court wants to prosecute people, the court should pay the cost of prosecuting people; it shouldn’t be offset onto the person,” contended Grace.

Outside of Cook County, though, this particular user-borne cost seems ingrained in the system. “I don’t know that I have ever seen less than 10 percent in bond fee withheld,” Hardwick said when ordering that the full 10 percent be withheld from Lovelace’s bond. “That’s one of the ways the [circuit] clerks basically fund their office.”