A History of Bail Reform

This series was a finalist for the 2018 “Best Feature Series” in a non-daily newspaper or magazine Peter Lisagor Award from the Chicago Headline Club

The first in a series on pretrial detention

For people charged with a crime in Cook County, the most important word that comes out of a judge’s mouth is “guilty” or “not guilty.” The next most important is how high the bond is.

At least, that’s the way the deputy director of the Illinois Justice Project and former public defender Sharone Mitchell describes it, explaining, “It is almost like there are two separate, but parallel justice systems—one for people who are detained in jail pretrial and one for people who are out of custody.”

Lavette Mayes, a forty-seven-year-old mother from the Southeast Side knows this to be all too true. “Your entire life is determined in thirty seconds. Thirty seconds and you can tear a family apart forever,” Mayes reflected in a recent interview with the Weekly.

Mayes was incarcerated in 2015 following a dispute with her mother-in-law. She had no criminal record, had never been arrested before, had two young children, and owned her own business. In an interview for a series on mass incarceration by the American Civil Liberties Union (ACLU), Mayes explained, “I had no inkling that I was even going to be arrested because I didn’t start it. I was defending myself.” That’s why, when Mayes found herself in Cook County Jail with a bail of $250,000, she was absolutely shocked. Ultimately, she was detained for fourteen months before being bailed out with the help of the Chicago Community Bond Fund, a nonprofit volunteer-run fund that pays bond for some detainees and advocates for an end to the cash bail system.

The unequal, wealth-based system has prompted waves of reforms to Chicago’s bail system, all leading up to the most recent wave of bail reform and the Bail Reform Act passed last June. These reforms have caused Cook County Jail to reach its lowest population in decades, around 5,900 in December 2017. In this article, and following installations of this series to be published in coming weeks, the Weekly will trace the history of this system, its reform movements, and the people involved in both.

There are three main types of bond in Cook County: Recognizance Bonds (I-Bonds), Cash Bonds (C-Bonds), and Detainer Bonds (D-Bonds). I-Bonds assign each person a monetary amount to pay if they do not show up to court, but do not require that any cash be posted to be let out of jail. C-Bonds, used primarily in civil cases, require defendants to pay the entire bond amount to be let out of jail pretrial. Once the case is over, this money is returned to the defendant.

D-Bonds require people to post ten percent of the total amount of bond to be released pretrial. Of this ten percent, Cook County retains ten percent of the payment, regardless of the outcome of the case, as a processing fee. This is the type of bond Mayes received, requiring her to pay $25,000 to be released pending trial. “At the time, if my bail had been set at $10,000, I would have been able to bail myself out, but I don’t think the court even considered that,” she said.

“The damage of the Cook County Criminal Courts to the right to pretrial freedom is a very fundamental aspect of being arrested in Chicago,” said University of Connecticut-Hartford history professor and criminal justice researcher Melanie Newport of the “punishment before prosecution” approach to criminal justice. Setting bonds above people’s ability to pay creates an illusion of release without any actual potential for freedom.

Popular wisdom behind the bail system argues that cash bail ensures that people come to court for their trial. However, numerous studies have shown this to be false. A 2013 study by the Pretrial Justice Institute found that people released on their own recognizance were just as likely to come back to court for their trials as people who posted money bond. Additionally, the two groups were equally likely to reoffend while awaiting trial.

Providing people with bus passes, an initiative which some cities are starting to explore, could be more effective than money bond in getting people to come to their court dates. Factors like lack of transportation, conflicting work schedules, and lack of childcare are some of the most common forces preventing people from meeting their court dates.

“On a certain level, we all know money bond doesn’t make us safer,” said Sharlyn Grace, a cofounder and board member of the Community Bond Fund and a Senior Criminal Justice Policy Analyst at Chicago Appleseed Fund for Justice, a research and advocacy nonprofit.

As is the case with many facets of American life, the United States inherited its bail practices from England, where bail was created in medieval times to ensure that those accused of crimes returned to court for their trials. As a result of numerous attempts by sheriffs to exploit this system for their own monetary gain, the Statute of Westminster of 1275 amended the limits of the bail system to release everyone except those facing the death penalty.

In the United States, initial bail legislation mirrored this norm, with the Judiciary Act of 1789 stating that every person had a right to post bail for noncapital offenses.  However, in practice, this has been far from the case. “[Cash bail] has been for a very long time a back door that’s permitted judges to avoid the constitutional limitations on pretrial incarceration, quite frankly,” Grace said.

As of July 2017, nearly 450,000 people were incarcerated pretrial in the United States, ninety percent of them only because they couldn’t afford to pay a monetary bail. “We have more people incarcerated pretrial than almost any other country has incarcerated, period,” added Grace. Cook County mirrors this national trend: ninety percent of Cook County Jail residents are pretrial detainees, and two-thirds of them would be free if they could afford to post bail.

Bail policy in Chicago and across the country remained a largely dormant issue until the passage of the national Bail Reform Act of 1966. “You can see in the sixties and seventies, overlapping with the height of the civil rights movement, professional reformer organizations like the ACLU are really trying ensure that people had a right to a speedy trial,” Newport, who is at work on a book titled Community of the Condemned: Chicago and the Transformation of the American Jail, said.

“They really came on the heels of a national movement towards bail reform after very big judicial corruption cases in the 1950s,” she added. “Bail reform has historically coincided with moments when criminal courts lack legitimacy.”

In response to pressure from these organizations, Illinois made bounty hunting illegal with the passage of the Code of Criminal Procedure of 1963, removing incentive for the private industry to operate in the state, although the industry was not explicitly outlawed. To replace for-profit bail bondsmen, state legislators created the D-Bond system, which was considered a major victory for pretrial rights.

To date, Illinois is one of only four states, in addition to Washington, D.C., without a private bail industry. Internationally, the United States and the Philippines stand alone as the only two countries with any for-profit element in the pretrial system. “It’s always hard for people to remember what an outlier system we have in the U.S.,” said Grace.

In 1970, the Alliance to End Repression, later known for its efforts to end surveillance on political dissidents by the Chicago Police Department, created a Bail Task Force, which was later renamed the Cook County Special Bail Project (CCSBP). According to Chicago Historical Society notes on their records, “At the time of the creation of the Cook County Special Bail Project, there were two hundred volunteers working on bail projects. In 1975, CCSBP possessed a paid staff of five.”  The Project succeeded in increasing the number of people released on recognizance in Cook County while organizing to bail people out of jail.

The Alliance also worked to coordinate court-watching and pretrial interviewing efforts, and to draw attention to the fact that most people before the criminal court didn’t have access to crucial social support systems and therefore didn’t actually need high bonds to ensure that they would come to court.

“The Alliance was a primarily white liberal group whose grassroots effort organized lawyers, law students, housewife activists with the League of Women Voters, and all kinds of volunteers to have an activist presence in the courts,” said Newport, explaining that court-watching has always been an integral part of the bail reform movement.

“Pretty much any time you get people in observing the courts, you find that courts are not necessarily upholding their side of the bargain in terms of resuming the innocence of people who are awaiting trial,” she added.

Combined with community activism, court-watching efforts resulted in some major victories for the Alliance to End Repression, such as establishing a weekend court and getting rid of the separate courts for women. Explains Newport, “A lot of that activism was able to happen because in the seventies there was a lot of federal funding for local criminal justice reform projects through the Department of Justice.”

However, this funding prioritization of criminal justice reform was short-lived. “When the money dries up at the end of the seventies and in the eighties under the Reagan Administration, things stagnate partially because there was no money and partially because people are burned out,” Newport said. “When the grants dry up, the government chooses not to institutionalize these programs in the late seventies.”

In the decades that followed, the rise of mass incarceration, the Wars on crime and drugs, and the intensification of racialized policing in Chicago resulted in a massive expansion of the population of pretrial detainees in the Cook County Jail. With it came extreme jail overcrowding. “When there are issues with conditions in the jail, there are movements to keep people out of the jail, like through changing the bail system,” said Newport.

Because of this overcrowding, in the early 1990s, both actors outside of the bail system, like the prison oversight nonprofit John Howard Association, and those inside of it, like the Cook County Sheriff’s Office itself, came together to try and gain support for release on recognizance. Due to a federal population cap on the number of detainees allowed to be housed in any given jail, the sheriff’s office started electing to release people on their own recognizance, without bail. “This was very radical, especially since he was a sheriff,” Newport said.

These efforts showed some results. In 1992, the jail population briefly fell, attributable to the implementation and expansion of an Electronic Monitoring (EM) program, and in 1995, the jail’s average daily population briefly dropped again after the creation of a Day Reporting Center for pretrial detainees.

“However, in tandem with this reform, there was an all-out assault on people who were accused of crimes, at a neighborhood level, in the courts, and within the jails themselves,” Newport said, referring to the tough-on-crime policies of the Clinton era.

A typical bail hearing goes something like this: first, the prosecutor asks the individual about their background and what they are accused of doing. Then the defense attorney offers “mitigation”—positive qualities and actions that could be a reason for release. Then, “the judge decides [your bail] based on your background, accused crime, and how scary you look,” Grace said. Sometimes, this process of deciding one’s access to liberty takes less than a minute, calling into serious question the legitimacy of bond decisions.

In Lavette Mayes’ experience, the process of being assigned a bail amount was even more harrowing. After being arrested, she was taken to a local jail then to the county jail. She spent about three days in lockup with no access to showers, provided with little more than bread and bologna to eat, and wore only a nightgown and a coat. “I never knew when I got there that I wasn’t even going to be allowed to take a shower before I went to see the judge,” Mayes said. She ended up having to go in front of the judge for her bail hearing in her nightgown.

Right before her bail hearing, Mayes and the others awaiting their moment before a bail court judge were lined up in a hallway outside the courtroom. “They told us to listen because it really goes fast and to just remember our next court date,” Mayes said. “When I spoke to the intake worker, he [said], ‘You don’t have a background, you shouldn’t really be spending any time, I’m pretty sure they’re just going to give you I-monitoring and just have you come back before the court.’”

Defendants entered the courtroom three at a time, standing in front of the judge with their hands behind their back. “It’s kind of hard to remember, because when you’ve been in lockup, you’ve been transferred, you’re really fatigued, you’re really extremely tired,” Mayes said. “I remember being the second person going in…and I remember there was no deliberation, it’s literally like an auction.”

She continued, “I remember a judge saying what the charges were, reading from a manila envelope he had gotten from the back, the public defender saying that I had no background, no prior experience, then that was it. The judge hit the gavel, saying $250,000, and it was over.”

Mayes’ family had hired a private lawyer to represent her in court, but had been unable to communicate this to Mayes. “People always say you get a phone call, but you don’t get a phone call until you are processed in,” she said. “I didn’t get a phone call while I was at the local jail, so I didn’t know my family had hired a private attorney.”

The whole bail hearing ended so quickly Mayes’ private attorney didn’t have a chance to advocate for her before the bail was set.

“We saw and continue to see tremendous disparities [in bond court] that result in widespread injustices,” said Cara Smith, the chief policy adviser to and spokeswoman for Cook County Sheriff Tom Dart.

An Injustice Watch report from November 2016 found that defendants with almost identical charges are often assigned bails that differ by tens of thousands of dollars, another reflection on the capricious nature of the system. In my own experience court-watching, I found the nature of bond to be completely arbitrary as well. Oftentimes, a small, seemingly justified reaction of disappointment from an defendant could result in judges doubling, tripling, or quadrupling their bonds.

Cash bail creates a system in which a wealthy defendant can buy their way out of jail, even when they may pose a higher threat to their community than a poorer person. Amy Campanelli, the Cook County Public Defender, noted to Injustice Watch, “Not only do the poor who pose no risk remain locked up, but those who pose a risk often end up released before trial because they had access to money to secure their release.”

These sentiments and skepticisms about cash bail aren’t new. In 1966, President Lyndon B. Johnson observed that a poor defendant “does not stay in jail because he is any more likely to flee before trial. He stays in jail for one reason only— he stays in jail because he is poor.”

“The history of mass incarceration is really a story about racism,” said Newport. In the Cook County Jail, seventy-three percent of detainees are African American, reflecting the national trend that Black, Latinx, and indigenous people are detained at far higher rates than people of other ethnicities, with Black Americans bearing the brunt of that trend. If given a money bail, Black people receive “significantly higher bail amounts than all other ethnic and racial groups” and are less likely to be able to post the bail amount, the national criminal justice reform nonprofit Justice Policy Institute found in 2012.

Overuse of pretrial incarceration through exorbitant monetary bonds is a problem that affects everyone in the city, not just those awaiting their trials in the Cook County Jail. In 2011, daily costs of detaining suspects awaiting trial in the Cook County jail amounted to more than one million dollars a day. These unnecessary costs add up. The Injustice Watch investigation found that in Chicago during an eighteen-month period ending last May, 1,527 “turnarounds,” as they are called, spent so long awaiting their trials in the Cook County jail that they collectively spent an extra 323 years incarcerated than their sentences called for.

After remaining dormant for a few decades, bail reform has in recent years once again seized local and national attention and efforts, experiencing a resurgence in recent years. “I give a lot of credit for [recent] bail reform to the Black Lives Matter Movement,” said Grace. “The public interest in criminal justice reform is a part of that conversation, a result of that conversation.”

In the last few years, as they did in the 1960s and 1970s, local stakeholders have come together to once again try to address this problem of mass incarceration and dismantle the cash bail system in Illinois while alleviating some of the harm caused by the current overuse of pretrial detention. Their efforts are varied and multifaceted, ranging from a lawsuit against the bail court judges of Cook County to proposed national bail legislation brought to Capitol Hill by U.S. Representative Danny Davis, who represents parts of the South and West Sides and suburbs, earlier this month. This convergence of efforts to reform and abolish the cash bail system illustrates how unique this moment is in Chicago, Illinois, and the nation at large. But the pendulum has swung back before—the real question is not only how successful these initiatives will be and how radically the system will change, but also how long those changes will last.

These initiatives to reform the cash bail system, among others, are the focus of the next installments of this Weekly series on bail reform in Cook County.

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