Sitting Ducks: ‘Leaving People in the Jail Is Leaving People to Die’

After significant reductions in the Cook County Jail population, which reached a record low of 4,026 at the height of the pandemic, the number of people in jail is once again on the rise after the protests and arrests of the last few weeks. Currently, 4,524 people are awaiting trial or serving out sentences in the jail, which remains a hotspot for coronavirus transmission in the city.  

Despite federal court orders to improve sanitation and testing there are still daily reports out of the jail that people currently inside are not being adequately tested for COVID-19 and do not have appropriate access to sanitation and protective equipment, according to Matt McLoughlin, director of programs for the Chicago Community Bond Fund. So far, seven people have died awaiting their trials and hundreds more have tested positive for COVID-19 and are facing life-long health impacts from the virus. “Leaving people in the jail, I would argue, is leaving people to die. As somebody incarcerated in the jail put it, they’re basically playing duck, duck, goose with their lives,” said McLoughlin.

Early in the COVID-19 pandemic, Cook County State’s Attorney Kim Foxx, along with county Chief Judge Timothy Evans, publicly committed to reviewing the cases of those currently in Cook County Jail and releasing those who did not pose a public safety threat. 

However, data analysis from the Chicago Appleseed Fund for Justice shows that the State’s Attorney’s Office’s actions over the last few months have been at odds with the public commitments to release detainees. “We had been hearing that, despite what Kim Foxx has said publicly about her office cooperating with the decarceration effort, a lot of public defenders and private attorneys were seeing their motions [to release] opposed,” said Sarah Staudt, a senior policy analyst and staff attorney at the Appleseed Fund who authored a report evaluating the State’s Attorney’s Office’s response to the pandemic. Staudt asked the Cook County Public Defender and State’s Attorney’s Office for court watching data from bond hearings held in March, April, and early May, and found that the State’s Attorney’s Office objected to release in the vast majority of cases.

Specifically, of the 2,366 motions for bond reduction argued between March 23 and April 22, the State’s Attorney’s Office argued against release in eighty percent of cases. Over the next few weeks, the State’s Attorney’s Office’s objection rate fell slightly, to between seventy and eighty percent. Though the bond court judge makes the final determination regarding bond and the release of detainees from custody, objections from the State’s Attorney hold significant weight. According to the Appleseed Fund analysis, while judges granted over ninety percent of motions when the State’s Attorney’s Office agreed to release, they granted only fifty-three percent of motions for release when prosecutors objected to it. 

In an interview with the Weekly, Foxx argued that the methodology for analysis and sourcing for the data presented in the Appleseed Fund report may overstate the extent of opposition to release from the State’s Attorney’s Office, stating, “The methodology was based on hand counts [of hearings] from the Public Defender. We didn’t have anything to reconcile that [data] with … we weren’t counting that in the same way that the Public Defender was counting.” However, the State’s Attorney’s Office has not yet conducted their own analysis of their motions in opposition to release, citing the cost and time required to get the necessary records from the Clerk of the Circuit Court’s office as limiting factors. 

The State’s Attorney’s Office has been collecting other data on their work and said in a statement to the Weekly, “The State’s Attorney’s Office worked quickly to review more than 2,700 cases and recommended releases for hundreds of individuals. These efforts contributed to a [twenty-eight percent] decrease in the jail population at Cook County Jail… The Public Defender’s Office, along with other defense attorneys, continue to request hearings on violent crimes which do not fit the criteria imposed by the court’s order for emergency bond hearings.”

But not all of the objections from the State’s Attorney’s Office are solely in cases involving violent crimes. “We’ve heard about plenty of cases where people had charges that fit into the categories [of nonviolent offenses],” said McLoughlin. As a result, there are still people in Cook County Jail for dozens of minor charges including retail theft, cannabis possession with the intent to deliver, driving on a suspended license, and narcotics possession. 

Additionally, even those charged with violent crimes are eligible for release. “Sometimes you have a case that would be considered violent, but also the defendant is sixty years old, for example … a person who is particularly susceptible to COVID-19, which is why their defense attorney brought the case forward [for bond reduction],” explained Staudt.

In March, Foxx stated that her office would not be prosecuting low-level drug offenses during the pandemic. However, some who were charged prior to this change and were unable to pay bail remain incarcerated. The State’s Attorney’s Office also continues to prosecute people for charges that don’t involve physical danger to another person during the pandemic and those who are serving out sentences in the jail after being convicted of misdemeanors have not been categorically released. 

“The jail works two ways, it’s people coming in and people getting out,” said Foxx. “There are a significant number of people who have not come into that jail because we’ve not prosecuted or charged low-level drug crimes. We also have not been charging people with violations of probation since the pandemic started. What we’ve been able to see in the last several months is that the world hasn’t collapsed because we stopped prosecuting drug offenses and 1,000-plus people have been released from jail without incident. These decarceration efforts should have been there in the first place.”

Throughout her first term as State’s Attorney and reelection campaign over the last year, Foxx stressed her commitment to ending the practice of monetary bail in Cook County, a practice that has no proven impact on public safety and results in disparate outcomes in the criminal justice system based on wealth alone. But according to court watchers, prosecutors are still objecting to bond reductions where it’s clear someone is unable to pay the higher amount. 

“Prosecutors are arguing for bonds to remain [as they are] when people are coming to court saying, ‘I have $1,000, I do not have $7,000,’ … If the State’s Attorney wants someone to remain in jail, there’s a procedure to follow and evidence to be presented,” said Staudt, noting that keeping people incarcerated solely based on wealth is unconstitutional and against local court mandates.

Foxx said that her office is working to address these concerns, albeit slowly. “We have spoken to the Vera Institute [of Justice] to do a … review of how we can improve the bond process, both from our office and the public defender’s office, and the system to see: how did we get here? What can we do better? What are best practices and lessons learned across the country?” 

As a result of a targeted campaign to put pressure on key decision makers, a petition from the Cook County Public Defender’s Office for mass release from the jail, and a class-action federal lawsuit, the jail population dropped by around 1,500 over the course of the pandemic, but numbers have been increasing again in recent days after mass arrests at protests across the city. 

According to data from the State’s Attorney’s Office, of the total 934 felony arrests that were made between May 29 and June 8, the State’s Attorney’s Office approved 732 for prosecution and rejected ninety-six, with a eighty-eight percent approval rate. Among 226 charges for burglary that the State’s Attorney’s Office reviewed, 200 were approved and eight were rejected. These approvals and rejections are informed by the State’s Attorney’s perception of their ability to meet their burden of proof and confidence in the ability to identify those charged as actually being connected to an incident.

“We are not prosecuting people for exercising their first amendment right. We’ve seen a number of people who were arrested on gun violations, we saw a number of people who were referred for charges of burglary, the colloquial ‘looting.’ We’ve seen some instances of aggravated battery to police officers. Last year at this time, we had maybe seven burglaries. This year we have forty.… We also had eighteen homicides in one day, which is unprecedented violent crime in the city of Chicago,” said Foxx.

According to the Cook County Sheriff’s Office, on April 10, there were 307 detainees who had tested positive for the virus. As of Sunday, June 14, twenty-three detainees are currently positive. But the recent increase in jail population raises concerns for advocates who say a second wave of infection could follow the recent relaxation in social distancing policies, and note that the increasing jail population makes practicing social distancing even more difficult.

Matthew Walberg, a spokesperson for the Sheriff’s Office, told the Weekly in a statement, “Testing at the jail has always far exceeded what has been available to the general public during this pandemic. Every detainee is tested when they enter custody—whether they show symptoms or not. Those who test positive or show signs of an illness are immediately isolated and receive medical supervision from our partners at Cermak Health Services. Detainees around that person are also quarantined and tested.”

However, reports from inside the jail differ. “There are countless stories of people who had fevers and were never tested or lost their sense of taste and smell and were never tested, people that came in direct contact with people who had tested positive, even one declaration from somebody who was in contact one of the, one of the people who died [and was never tested],” said McLoughlin, who runs the Bond Fund’s hotline answering calls from people inside the jail. “We’ve heard from numerous people who have gone weeks without having their clothes or sheets cleaned. Their two bars of soap are running out within a day or two. The federal court has ordered that hand sanitizer be available to people in the jail, but whether or not they actually get access to it is really at the whim of the correctional officers. … These people are sharing the same phones, they’re literally sitting elbow to elbow.”

Walberg said, “There is and has always been copious amounts of soap, hand sanitizer, cleaning products and PPE available to detainees and staff… In many cases, we have innovated beyond recommended measures, including the opening of an off-site isolation and recovery facility, the massive effort to convert every available cell to single-occupancy, and safely re-opening previously shuttered divisions to provide extra space for social distancing.”

However, the relocation to parts of the jail that had previously been shut down, some of them for several years, brought additional concerns for advocates. These settings brought additional sanitation concerns, as they weren’t cleaned before people were relocated there. “There were rat feces in the rooms where people were brought in, the pipes in the cells didn’t work because they hadn’t been used in four years so when they turned on the water, it was black,” said McLoughlin. Other parts of the jail have reported mold and rodent problems before the pandemic, which coupled with the respiratory issues caused by COVID–19, could put those in the jail at even greater risk of serious illness or death. (Walberg did not respond to these claims.)

Currently, all those incarcerated in Cook County Jail, including those incarcerated over the last week, remain at a high risk for contracting COVID–19, with just one infected person needed for a large-scale breakout in what is already an established coronavirus hotspot. And with a new influx of people travelling in and out of the jail every day, every action taken in Cook County’s courts and jail impacts not just those incarcerated, but all of Chicago.

Kiran Misra is a writer for the Weekly who primarily covers criminal justice and policing in Chicago. She last wrote about the city administration citing the Chicago Freedom School for feeding protesters.