Are Some People Better Off in Jail? The Illinois Bail Reform Act and What Has Changed
Updated: Apr 19, 2019
The purpose of bail is to ensure the presence of the defendant at future court dates. How the amount is set depends on many factors, such as the defendant’s criminal history and biographical information (living situation, level of education, employment status and so forth). The allegations of the current crime are also heavily considered, along with any prior failures to appear in court.
Conceptually, bail, except for the most serious of allegations where the defendant poses a significant risk to the public should they be released, is supposed to be set within the financial means of the defendant. This was rarely the case in Chicago. But I was once at a bail hearing out in Kane County and the judge asked the defendant, “If I give you a phone call, how much money can you come up with?” I wasn't immediately sure I had heard correctly. Then the next defendant was asked the same question, and the next one and so on.
A motion can always be made by the criminal defense lawyer to reduce the bail amount. I used to make the following argument every time, “An excessively high bail is the same thing as pre-conviction incarceration...” It sounds good and it’s true. But the prosecution always rebutted with, “There’s been no change in circumstance that supports a reduction of bail.” And these motions were usually denied.
I was lucky a few times and even got a couple of people released on house arrest. But over 90% of these motions were unsuccessful. I wrote a blog many years ago about the high bails that were then the normal state of things in Cook County, specifically city of Chicago cases, and how I believed the unaffordable bail amounts were leading to more guilty pleas, especially among first-time offenders who may or may not have been factually guilty but readily took a plea deal for probation so they could go home, caring not at all that they were going to carry their felony conviction for life; even after I explained to them all that unfortunately comes with it. Not one time did a client ever pause to think after hearing what I said to them.
My memory seems to remember the average bond amount being between $50,000.00 and $100,000.00, of which 10% would be needed in cash bail before the defendant could be released. Very, very few people with loved ones in the county jail could come up with $5,000.00. I never once represented a client who had posted $10,000.00. And some people were simply held without bail, if their case had violent enough allegations, such as murders.
Back then there were usually about 10,000 inmates in custody at the Cook County jail. The jail was often so full that some inmates had to be sent to jails in other counties, such as Kankakee and then transported back to Chicago for their court appearances, and then driven back to Kankakee County.
A local NPR reporter happened to read my blog about the high bonds and decided to do a piece on it. I was interviewed but have only a vague memory of being at Navy Pier on a Saturday during summer, answering a few questions while eating an ice cream cone from Ben & Jerry's. That's really all I can remember. I don't think I ever heard that interview.
But the right people might have been listening; or perhaps not. No matter. Because it was soon after that when I first heard a Cook County board member talking about the very same issue. I believe it was, in fact, the new board president, Toni Preckwinkle, who made the comments about the jail being overcrowded because the bonds were way too high. It wasn't a secret. It was open and obvious. Preckwinkle quickly became the driving force in Cook County behind bail reform.
Something had to be changed. And changes were made.
Illinois passed the Bail Reform Act of 2017 that provided, in part, the following language: “There shall be a presumption that any conditions of release imposed shall be non-monetary…” This means to me that bond judges are supposed to look for a way to release defendants without requiring money. House arrest is one example of such a release; or an Individual Recognizance Bond (called an I-Bond and no money is needed for this.) The act goes on to discuss how much money should be required when a monetary bail is set, and adds that the amount shall be, “Considerate of the financial ability of the accused.” This is how it was already in Kane County.
And then it goes further to discuss when defendants have been arrested for drug offenses the street value of the confiscated drugs shall also be considered. I cannot count how many clients I had who were arrested with less than $50 worth of a controlled substance and ended up needing $5,000.00 “to walk.” This language appears to address exactly that situation.
But the most shocking part of this act is that persons charged with minor felonies who are unable to post a monetary bond shall be brought back before a judge after seven days where the set bail amount will be reviewed. Wow! And even persons charged with more serious felonies who are unable to post the required cash can request a rehearing where I doubt it is one denial after another, as it was formerly.
There are now about 6,500 inmates in the Cook County jail. So, this act has clearly made some changes. I am sure at the bottom of the purpose of this act was a financial consideration, because it costs the government to keep people locked up; and Illinois has some serious financial problems.
Here in Sangamon County, the jail is very small but is presently overcrowded with 340-360 inmates. I presently have one client in that jail but more are sure to follow as my phone is beginning to really ring.
A Chicago defense attorney with whom I am still in contact said, "The number of defendants placed on electric home motoring (EHM) straight from bond court has skyrocketed since the Bail Reform Act was passed. I have clients who I would not have considered asking a judge for house arrest before the act was passed getting out with an EHM bracelet. If they do have monetary bonds, it's rare and they are usually low or insanely high. There is no real in between right now."
He further said, "With county and state oversight and scrutiny of monetary bonds, the only realistic option for bond court judges when they believe a person may potentially be dangerous is to hold them without bail. There is no difference between no bail and one million dollars bail for most defendants. If they don't initially meet the threshold for electronic monitoring, the provision of the law that requires judges to take into account the financial ability of the accused is useless. There has yet to be a happy medium struck."
And lastly, "As a criminal defense attorney, of course, I would rather my clients be on electronic monitoring than in the Cook County jail while they wait for trial or for their case to be resolved. The flip side is that EHM has become an added challenge for attorneys, who are required to assist clients with tasks like obtaining work permission or permission to go to a doctor's appointment. At times a court order is required by the EHM unit. Managing EHM utilizes valuable time attorneys could be spending investigating the client's case or preparing for trial."
In Illinois a defendant out on a cash bond can use that bond to hire an attorney. It works like this: the attorney agrees to represent the person and accept the bond for payment; at the end of the case when the bond is refunded, the money goes to the attorney rather than being returned to the person who posted the money (minus 10% the county keeps, of course). For some people that bond money is all they have with which to hire a defense lawyer.
I initially accepted bonds for payment but soon stopped doing so, because I felt there could be a perceived conflict. Since the attorney doesn't get that money until the case is completely over (meaning there is a guilty plea, a dismissal or a trial verdict) it creates in my mind an unsavory situation where it could be alleged that an attorney pushed a client into a guilty plea just to get that money; rather than filing appropriate motions and holding hearings to challenge the arrest or search--which in Cook County could take a year or longer. I would only accept bonds if it was a complex case requiring litigation and the bond was only part of the overall payment.
I am also told that now since there are fewer people out on cash bonds, bond refunds to attorneys have become rare. I don't personally have a problem with this. I never liked this system for the reasons in the preceding paragraph. But there were many attorneys I knew from around the courthouse who worked off of bonds, and there's nothing wrong with it as long as the attorney ethically handles the matter.
A Chicago public defender friend of mine told me there are now consequently more bond forfeiture warrants, which is what happens when someone on bond doesn’t show up for court. Whatever money they paid to get out is forfeited to the government and an arrest warrant is issued. I think this could have reasonably been expected, and the county makes money from it.
And then he also told me there has been an increase of bond-on-bond cases. Let me explain this. A defendant on felony bond who gets arrested again for a new felony case creates a bond-on-bond situation. The government then gets to elect (or choose) which case to prosecute first—and they always choose the easiest one, which means the case with the best evidence.
Hypothetically, if the first case went to trial and ended in an acquittal, the defendant would still have another felony case against him or her. Most of these bond-on-bond cases end up with guilty pleas on both cases, and because they are bond-on-bond the defendant is hit with mandatory consecutive sentences; meaning they do their time for the first case and then they serve out the second case.
There’s argument, then, that for some of these people, staying in the county jail might be the best option; because, if nothing else, it keeps them from picking up a second felony charge.