August 18, 2017
In the wake of recently ordered bond court reforms, Cook County judges are seeking the dismissal of a lawsuit challenging the use of cash bail to keep defendants behind bars.
Chief Judge Timothy Evans announced the changes on July 17, 2017. A week later, on July 24, the five Cook County Circuit Court judges named in the lawsuit filed motions to dismiss the case as moot on the grounds that the reforms would end the disputed bail practices.
Lawyers for the plaintiffs have opposed the judges’ efforts to end the case. While praising the Chief Judge’s order, they argue that there is no guarantee that Cook County judges will follow it.
The lawsuit was filed in October 2016 as a proposed class action by two individuals who were arrested on theft charges and held in Cook County Jail because they could not afford to post bonds of $1,000 and $5,000. The suit alleges that requiring the payment of unaffordable amounts of money to stay out of jail violates Illinois law and defendants’ federal and State constitutional rights.
The Cook County suit is part of a national movement to reduce or eliminate use of cash bail through class action lawsuits or statutory changes. The advocacy group Equal Justice Under Law says it has filed 12 challenges against money bail since 2015 that have ended the practice in seven communities. The jail population in New Jersey has reportedly fallen by 19% since a sweeping overhaul of the state’s bail system in January 2017 eliminated most cash bail.
Cash bail is intended to make sure defendants show up for court, but critics maintain that money bail disproportionately hurts poor and minority residents and inflates the jail population. Under a money bail system, dangerous defendants with access to cash can be released while poor, non-violent defendants remain in jail.
Reform efforts have also been spurred by the fiscal burden of mass incarceration. It cost an average of $162 per day to keep a detainee in Cook County Jail in 2014, according to a study by the Cook County Board President’s Office. The study put the total annual cost of operating the jail at $528 million.
The average daily Cook County jail population has declined by more than 2,500 since mid-2013, from approximately 10,000 detainees to fewer than 7,500. The decrease appears to be due in part to a significant rise in the number of defendants who are released on electronic monitoring or on their own recognizance without having to post bond. However, recent reports show that about 40% of judges’ orders in Central Bond Court in Chicago still require cash as a condition of release.
Money bail has been common in Illinois despite Section 110-2 of the Code of Criminal Procedure, which directs judges to require upfront payments only when no other conditions of release will reasonably ensure that defendants will appear for future court dates and not pose a public safety risk. The law states that any cash bail should be “not oppressive” and “considerate of the financial ability of the accused.”
This language was recently strengthened by Public Act 100-0001, which takes effect in January 2018. The new law includes “a presumption that any conditions of release imposed shall be non-monetary in nature” and “the least restrictive conditions” necessary.
The Chief Judge’s order goes further than the new law. The order essentially requires that defendants only be ordered to pay cash amounts they can afford. Beginning on September 18, 2017 for felony cases and January 1, 2018 for misdemeanor cases, judges will be required to ask about a defendant’s ability to pay a bail amount and make a finding on the record that the individual “has the present ability to pay the amount necessary” to secure release. Defendants who remain in jail after seven days due to inability to post bond will be granted new hearings.
Chief Judge Evans also plans to set up a new division of the court for initial bond hearings with a presiding judge. It is unclear whether the Chief Judge will request an expanded budget for the new bond court division and for additional pretrial services personnel to oversee released defendants.
Attorneys for the plaintiffs in the bail lawsuit, including Matthew Piers and Locke Bowman, contend that the Chief Judge’s order exceeds his legal authority, which is limited to administrative matters. They assert that a court ruling, Illinois Supreme Court rule or statutory change is needed to limit cash bail to affordable amounts.
The next hearing in the case is scheduled for September 11.