Shifting Fronts in 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 third in a series on pretrial detention

From organizing work in the sixties and seventies to recent pushes to end monetary bail, significant gains have been made in creating a more just pretrial detention system in Cook County. Despite the immense progress, many problems linger in practices designed to make the pretrial experience more equitable, from poor implementation of an order by Cook County Circuit Court Chief Judge Timothy Evans, to issues of racial bias in the pretrial risk assessment tool, to restrictive conditions of electronic monitoring.

In previous installments of this series, the Weekly looked at how the history of bail reform informed the current system and delved into more recent activism that brought the County to the eve of cash bail’s abolition. We look now at the changes occurring today and the continued barriers to liberty.

In 2017, West Town-based progressive group The People’s Lobby suggested to the Coalition to End Money Bond that they reach out to Cook County Circuit Court Chief Judge Timothy Evans, a crucial decision-maker in the local criminal justice system, in their quest to end monetary bail. For months, the Coalition tried to set up a meeting with Evans and his staff to no avail. The group then turned to direct action.

“I organized an action and we brought two hundred people to Evans’s office to ask him why he was refusing to meet with us,” said Alex Muhammed of The People’s Lobby. “The next day, we got a call from his office.”

On September 18, 2017, two months after it was initially issued, Evans put General Order 18.8A into effect, stating that County courts “shall conduct an inquiry into the defendant’s ability to pay monetary bail” and “ensure the defendant has the present ability to pay the amount necessary to secure his or her release on bail,” meaning that judges cannot set a bond a defendant can’t pay. The order requires a bond review within seven days for anyone incarcerated due to inability to pay, which should result either in a reduction of bond, release without bond, or a transparent decision to detain without bond that could be appealed.

According to Illinois law, judges were already supposed to take ability to pay into account.

“They’re not necessarily doing anything revolutionary in the courts by saying that they will actually follow the rules they have,” said University of Connecticut-Hartford history professor and Chicago criminal justice researcher Melanie Newport. “The Cook County Criminal Courts are getting too much credit.”

A few days before the order went into effect, Evans made another sweeping overhaul by replacing all bond judges and renaming the Central Bond Court the Pretrial Division. He appointed Judge John Kirby as the presiding judge for the Division. Judges Sophia Atcherson, Michael R. Clancy, John Fitzgerald Lyke Jr., Mary C. Marubio, Stephanie K. Miller, and David R. Navarro comprise the rest of the new bond court roster.

When Order 18.8A went into effect, activists and advocates mobilized. The People’s Lobby and Reclaim Chicago led a Rally to End Money Bail in front of the Leighton Criminal Courthouse in Little Village on the first day of its implementation, “to show the bond court judges that we are watching and that we will hold them accountable.” The Coalition trained volunteers, who collected information on the treatment of their community members.

One month later, Max Suchan of the Chicago Community Bond Fund reported that 110 people were given bails higher than they could pay and told a reporter that “more than ninety percent of cases that we’ve been tracking are not given bond reviews within the seven-day review period or after.”

A report from nonprofit criminal justice news organization Injustice Watch that month stated that according to Evans’ own office, the new Pretrial Division judges received just eight hours of training on Order 18.8A and the county’s pretrial assessment tool, which was fully implemented in March 2016. Injustice Watch also observed 453 weekday cases in felony bond court and reported findings similar to the Bond Fund’s, witnessing significant variability in compliance with the order.

“The Chief Judge’s order is being treated as a suggestion, some are following it and some aren’t—it’s very variable,” said Sharlyn Grace, a policy analyst with the Chicago Appleseed Fund for Justice. Since no Chief Judge has ever made an order like this before, Evans is heading into uncharted waters, with bond court judges and community members alike wondering whether he actually has the authority to implement and enforce Order 18.8A.

“The Chicago Community Bond Fund had a conversation with a judge who pretty much flat-out said, ‘this order doesn’t apply to me,’” Muhammed said. In its report, Injustice Watch found that Judges Lyke, Marubio, and Miller had strong compliance with the order, but Clancy issued bonds higher than defendants could pay in twenty-five percent of his reviewed cases.

According to Muhammed, this lack of compliance stems from judges’ fear that a too-lenient decison could result in someone let out pretrial committing another offense, which could affect a judge’s reelection.

Judges also often choose to not use other measures that Evans has advocated for to reduce unnecessary pretrial detention, like Cook County’s pretrial assessment tool. The tool, called the Public Safety Assessment (PSA), intends to provide judges with an objective measure of the danger someone would pose to their communities or the likelihood of their failure to appear in court based on around ten “risk factors.”

While many hoped it would be the end to the racially biased, arbitrary nature of bond hearings, in recent years, advocates have suggested the algorithm may exacerbate the problems it intends to combat. It relies largely on criminal history records, which are impacted by racially biased policing practices––meaning that people of color and poor people are far more likely to have high PSA scores.

However, the new rules are far from insignificant. Bond hearings now last four minutes instead of one hundred seconds before Order 18.8A went into effect. Injustice Watch reports that “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,” and fifty percent of those assigned cash bond now have bonds that they can pay. The effect on the size of the Cook County Jail population is evident, with the number of people detained in the jail dropping around twenty percent in the months since the order, reaching about 6,000 people this January.

At recent budget hearings, Evans reported that I-bonds, which do not require people to pay to be released pretrial, are now forty-nine percent of all bonds, up from twenty-five percent before the order. D-bonds, which require people to post ten percent of their bond to be released, are now twenty-two percent of bonds given, down from forty-six percent before the rule.

Over 4,000 people are still incarcerated in Cook County Jail because they cannot post monetary bail and had their bonds set before Order 18.8A went into effect. There has been no indication these will be reviewed, a fact that advocates cite as a major concern.

The temporary nature of Order 18.8A also worries activists. “As long as Judge Evans is in office, judges should be following this order,” said Muhammed. “But as soon as he is unelected or leaves his seat, the order goes out the door with him.”

Between the potentially ephemeral nature of the order and Cook County judges still setting bonds too high, the attorneys in a major class-action lawsuit against the bond court judges are as committed as ever to seeing the lawsuit progress.

When the state lawyers representing the court system filed motions to dismiss the case, citing Order 18.8A, activists and attorneys doubled down on their efforts.

Representatives from the Coalition to End Money Bail and numerous community members packed the courtroom at the Daley Center on the day of the hearing on the motion to dismiss, showing their support for bringing the suit to trial. On September 11, 2017, “it was standing room only at the Daley Center courtroom,” said Chirag Badlani, another one of the attorneys for the plaintiffs.

Presiding Judge Celia Gamrath noted this—stating, “I can tell the community cares about this issue”—and took the case under advisement, saying she would rule later whether the lawsuit would be dismissed or brought to trial. When that ruling will come is unclear.

Since Order 18.8A went into effect, the Coalition reported there has been a sharp increase in punitive pretrial conditions like drug tests, check-ins, curfews, and electronic monitoring (EM), which can be as restrictive as being incarcerated.

“In the early nineties, when technology like electronic monitoring emerged, it was seen as an alternative to incarceration and to a certain degree, an alternative to bail,” said Newport.

“Now, in the way that those surveillance programs are being extended, the effects of that technology are more similar [to incarceration].”

After spending fourteen months in jail awaiting trial, Lavette Mayes, the mother from the Southeast Side introduced in previous installments of this series, wasn’t truly free when she was released.

“I went from being locked up inside Cook County to being locked in my house on house arrest,” she said.

Once someone is released on bond and put on electronic monitoring, they often aren’t allowed to return to their home and must stay with a family member who agrees to supervise them. Mayes called her sister, who had to agree to unannounced drop-ins by sheriffs and officers and other conditions like not having any narcotics or alcohol, other people with criminal records, or even pets that were considered “vicious” like Rottweilers and boxers in the house. Several times, sheriffs came to Mayes’s sister’s house in the middle of the night to make sure Mayes wasn’t violating any release conditions.

“That’s hard on family if they’re just there and opening their door for you to stay,” said Mayes. “You have to deal with the fact that the house of whoever you’re staying with is open for the county to come and go as they please.”

“It was embarrassing, heart-wrenching, because when my kids see that, my sister sees that, my family sees that, they don’t know if they’re coming back to pick you up [or] if they’re just coming to check on you.”

In addition to the restrictions placed on her family members, Mayes also had her own activities severely limited. “If you have a job going into jail, if you can keep it for fourteen months, which I doubt, you end up losing it when you’re on EM, because you often can’t leave your house,” she said. “I couldn’t take my kids to and from school. I missed my son’s first day of school.”

In many ways, the system of pretrial release sets people up to fail and accidentally pick up another charge for pretrial condition noncompliance—felony escape—leading to reincarceration. Often, defendants are only notified of these conditions on their bond slip, a piece of carbon paper with frequently unreadable writing that they are handed as they walk out of court. Further, these bond slips have no instructions regarding what the conditions mean.

To make matters worse, Pretrial Services is near-impossible to reach by phone for required check-ins or to request clarification or modification of a condition, as the Bond Fund discovered after repeated attempts by clients and their attorneys to contact the division.

Because the Sheriff’s office often calls employers to confirm people’s compliance with their pretrial release conditions, many lose their jobs since employers believe they are too high a risk. “These restrictions on liberty, movement, privacy are a punishment of innocent people, legally innocent people before they’ve been convicted of anything,” said Grace, the Chicago Appleseed policy analyst.

Evans is well aware of these hazards. Last October, he announce that, starting in December, people with pending criminal cases in Cook County Courts would have access to call and text reminders on upcoming court dates in an attempt to support instead of punish those awaiting their trials.

This was too late for Mayes, whose restrictive house arrest conditions prompted her to eventually take a plea. “There were many things I had to take into consideration other than [whether I could win my case],” she said. “I had to pay this attorney, but I wasn’t able to work, I had no income coming in. I had to consider that [the sheriff was] just showing up and my family not having privacy…So I took a plea and sacrificed myself.”

Mayes remembers the exact moment she notified her family of the decision. “I sat down with my family and told them I couldn’t do it for another year,” she said. “My family had given up so much when I was on house arrest. I didn’t take the plea because I didn’t think I could win the case, I took the plea because of how much hurt and devastation it was causing my family.”

The consequences of pretrial detention and electronic monitoring extend further than days of missed work and disruptions to family life. People detained pretrial are far more likely to be found guilty come trial and get far longer sentences than those out in their communities awaiting trial. The likelihood of recidivism and failure to appear also increase the longer someone is detained pretrial.

“House arrest is just like being incarcerated,” said Mayes. “You’re on the outside, but there are the same restrictions. You’re not able to do anything, you still lose income, you still aren’t able to get housing or work…[It] isn’t the next best thing, it’s progress, but it’s not a solution.”

Despite significant progress in reducing pretrial incarceration in the city, the forward trajectory of progressive reform is not guaranteed. “Every time there is a movement towards reform, there tends to be a tension between that and reliance on tradition,” said history professor Newport. “The tradition in this country is reliance on money bail and incarceration.”

On February 26, a class-action lawsuit was filed against Sheriff Tom Dart in the U.S. District Court for the Northern District of Illinois on the behalf of Taphia Williams, representing current detainees in Cook County Jail who contend that they have been held illegally by the Sheriff. These people, who have been detained because Dart found their bond conditions unsatisfactory, have been held for several additional days after posting bail, directly contradicting much of Dart’s previous messaging.

Once one of the most vocal supporters of releasing people pretrial and ending the practice of money bond, Dart recently announced that “out of concern for the public safety [he is] sworn to safeguard,” he is concerned about the number of people charged with gun crimes who have now been released on bond. According to an analysis by the Tribune, the amount set for bonds fell from nearly $134,000 in 2016 to almost $22,000 in 2017, leading to many people returning to their communities instead of jail or pretrial.

Even though most of those released have been put on EM, Dart contends that he is unconvinced the monitoring is adequate, explaining that his office will “closely scrutinize all individuals who are assigned to EM by carefully reviewing their charges and criminal histories” in a letter to Cook County President Toni Preckwinkle. Dart announced that he plans to make the EM program more rigorous and restrictive, with staff “making unannounced searches of the homes of those being monitored, conducting a more thorough vetting process and, if necessary, declaring detainees too risky for the bracelets altogether.” Dart has said he will potentially seek funding to hire up to thirty more staff.

In a post on Facebook, the Chicago Community Bond Fund called these statements “unsubstantiated claims about imaginary threats to public safety.”

This “review” policy for defendants already cleared for release by Cook County Bond Court Judges is not only unconstitutional, violating people’s  right to release after the bond has been paid, but arguably outside of the scope of Dart’s authority as Sheriff. In a letter to Dart, Cook County Public Defender Amy Campanelli explained: “It is your obligation to provide security at the jail, not pick and choose its residents.” Campanelli says she has sworn to do everything in her power to stop the Sheriff’s violation of Chicagoans’ constitutional rights.

“Changing how the judges conduct business is one thing, but you have to make sure all the stakeholders [are] involved in the process,” said Alexa Van Brunt, an attorney with the MacArthur Justice Center at Northwestern University’s law school. “Everyone needs to be on board.”

Bond reformers acknowledge that letting more people await trial in their own communities is not without risk. “Somebody may get released and do something bad, and if you look at that in a vacuum, you might think, ‘oh we can’t do anything because you don’t want that one bad thing to happen,’ said Sharone Mitchell, deputy director of the Illinois Justice Project. “But then you’re not looking at the other side of the equation. When you overincarcerate, think about the damage you’re doing to so many more people.”

Given that under the current system, people lose housing, their ability to take care of family members, and their livelihoods, Mitchell added, “I’m just not sure those things balance out…People are innocent until they’re proven guilty and we shouldn’t go about locking people up just on allegations.”

Ted Miin, an organizer with the Coalition, agrees. “People who are not affected by the prison system are like…‘but what about violent offenders,’ and ‘how could someone be in jail if they aren’t a criminal,’ because people think jail is for bad people,” he said. “But that’s not quite true, not everyone in jail is guilty. A lot of those details are intentionally kept from public awareness. It’s out of sight, out of mind.”

The fights for criminal justice reform and bond reform in Cook County are far from over, a reality that public officials, funders, and advocates are well aware of. “Bail reform is an issue that has drawn efforts from all fronts,” said Mitchell, citing legislative, legal, and administrative efforts. “We need to throw as much up against the wall as we can until we get the system that takes money out of the decision.”

In early November 2017, a coalition of more than seventy local and national organizations coordinated by Chicago Appleseed voiced support for an Illinois Supreme Court Rule that would code some of the language of Order 18.8A into state law. Submitted on October 13, 2017 by Campanelli, Evans, Dart, Cook County Board President Toni Preckwinkle, Jesús “Chuy” García, and Cook County State’s Attorney Kim Foxx, it states, “there shall be a presumption that any condition of release shall be non-monetary in nature.” It would mirror changes in states like New Mexico, Arizona, Indiana, and Maryland.

In January, U.S. Representative Danny Davis, who represents parts of the South and West Sides and suburbs, moved to bring the momentum around bail reform to the national stage, introducing the Bail Fairness Act of 2018. The legislation, House Bill 4833, would require states to release individuals charged with a non-violent misdemeanor on non-monetary conditions prior to their court date. The bill would also require the U.S. Attorney General to review research on how reduce pretrial incarceration. If passed, the bill would further reduce the use of cash bail around the country, bringing the U.S. one step to ending monetary bond for once and for all.

Criminal justice reform advocates also see the upcoming 2018 elections as an opportunity to push bond reform further at the state level, coordinating a questionnaire on bond reform for candidates running for governor. The results were released a few weeks ago. Democratic candidates Daniel Biss, Chris Kennedy, and J.B. Pritzker responded, all three stating a commitment to ending the use of cash bail in Illinois.

The People’s Lobby has made plans to endorse several judicial candidates who have made it a priority to work against cash bond. “We have never been in any judicial races before, but because money bail is a really crucial part of the conversation around ending mass incarceration right now, it made sense for us to have people on the inside to help us move change on ending cash bail,” said Muhammed.

While monitoring the successful implementation of Judge Evans’s Order 18.8A, bond reform advocates also plan to push the lawsuits against the Cook County Circuit Judges and Tom Dart forward. They also intend to improve and build upon the Bail Reform Act of 2017 by reintroducing State Rep. Christian Mitchell’s original, more expansive bill.

However, even when Cook County ends the use of cash bail, there is still a long way to go in ensuring the pretrial process is just for all Chicagoans. “We still need to end the overreliance on pretrial detention because you can be at a point where you’re not using cash bail, but you’re still locking up half the people on no bails,” Mitchell said. “The question is how does our reform forward the goal of creating a more fair system. All bail reform isn’t created equal. All bail reform isn’t good for the people.”

This means maintaining a focus on widespread cultural change while working towards political victories, challenging entrenched cultural norms and redefining what constitutes protecting public safety. “Moving and shaping people’s  worldview around punishment and safety is a huge challenge,” said Muhammed. “The use of fear is really strong to move public opinion and keep this system in place.”

She added that that criminal justice decision makers should think critically about the lack of logic in the bail system. “The language of the constitution around money bail is to get people to come back to court for their date,” Muhammed said. “But if you can’t afford a one hundred dollar or $200 bond, these are not the types of folks who can skip town. Cash bail is a poor people’s  tax.”

Organizers continue to work against fines, fees, and the exorbitant costs of incarceration for people in jail, which, along with offers to shorten a sentence due to time served, create an incentive to plead guilty even if innocent. Pretrial services like mandatory drug monitoring can cost and fifteen to twenty-five dollars every visit and EM can cost seven to twelve dollars a day, more expensive than probation in many jurisdictions. “We prosecute forty times more people than we did thirty years ago and prosecutors have a ninety-nine percent conviction rate because of pleas,” said Grace. “Trial is a disappearing thing in the US.”

Muhammed, Grace, and other advocates understand that solving the problem of cash bail isn’t the finish line, but the starting line of the next race. Their work continues by addressing issues like disinvestment in education, drug treatment, and mental health and the lack of living wages in communities.

Change won’t come without work, day in and day out, on the part of Chicagoans who both have and have not been directly been impacted by unfair criminal justice practices in the county. Coalition organizer Miin explains, “I want to ask people, ‘This is happening in your city, down the road from you, so why are you not out there? Why are you not outraged? If that was your family member, wouldn’t you want all of Cook County be outside those doors demanding they be released? You have a personal stake in this too.”

Mayes is clear on the importance of the bail reform movement. “I think you can better fight your case on the outside than when you’re in. I think in my case it would have been a completely different outcome if I had been free. Policymakers need to see if judging people’s life in thirty seconds is fair. Our legislators are not doing their jobs, they’re tearing families apart.” And until preventable harms like those in Mayes’ case are no longer found anywhere in the Cook County criminal justice system, activists will keep fighting.

Read parts one and two of this three-part series

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