Thousands charged with drug possession walk free, leaving taxpayers with tab

Thousands of people a year cycle through Cook County Jail for low-level drug possession, contributing to the rising costs at the jail.

Photo by Sophia Nahli Allison

Thousands of people a year cycle through Cook County Jail for low-level drug possession, contributing to the rising costs at the jail.

Editor’s Note: Over the last several days, we have been running our favorite Reporter stories of 2014. This story was originally posted on Sep. 14, 2014.

Michael Halpert, a baby-faced public defender, is glancing through a file when his client, a bleary-eyed African-American woman who was arrested for drug possession, is called to the bench.

It’s a busy Friday in July. Halpert estimates that as many as 100 people are led from a crowded jail cell in the basement of the courthouse at 26th Street and California Avenue into the courtroom each day where a judge will determine their bond. A lot goes into the decision: the defendant’s criminal history, the probability that he will miss the next court date, or worse, commit another crime while out on bond. If a judge is worried about any of these things, money is attached to the bond, increasing the odds that the defendant will return to the Cook County Jail until his next court date.

Halpert has been keeping unofficial courtroom stats since he was reassigned from traffic to bond court last spring. By his count, roughly half of the cases called this summer were for possession–usually heroin or cocaine. Most involve amounts that would be considered a misdemeanor if they were filed in a federal court or 13 other states. “It’s almost always small amounts,” he says, “less than 1 gram.”

It’s no surprise that drug possession is the No. 1 reason people were in Cook County Jail last year. That’s been the case for the better part of the past decade. Since 2006, people have been booked and released more than 100,000 times for possession, according to jail records. And during that same time period, taxpayers have spent $778 million jailing people on the lowest-level possession charges. Sheriff Tom Dart, who oversees the jail, estimates that it costs $143 a day to detain an inmate.

The figures are staggering, and all the more troubling in light of another factor: 1 in 3 of these cases are dismissed, which means many users are released from a costly stay in jail without treatment, only to come back weeks or months later.

Halpert says the mostly poor, African-American drug abusers who flood the courts are likely to get picked up by police again. “It’s sweeping the problem under the rug temporarily,” he adds.

Last November, The Chicago Reporter investigated the rising costs at Cook County Jail, driven, in part, by arrests for low-level crimes, including drug possession. Despite growing political pressure to get a handle on jail costs, judges, county officials and prosecutors don’t agree on how to address the problem, let alone how to treat the drug users who cycle through the court system and the jail. While Cook County Board President Toni Preckwinkle and Dart push for programs that would divert people from jail, judges are afraid of letting the wrong person go and prosecutors continue to press charges for possession of small quantities of drugs.

Many judges have started swapping bond fees for house arrest, particularly if a defendant doesn’t have any violent crimes on his record.

Retired Judge Lawrence P. Fox has overseen special drug courts that focus on alternative sentencing since the late-1990s. He says jail time can help break addiction, but only if there is drug treatment. The drug courts have helped decrease the number of drug abusers sent to prison. But for people who are being held short-term without a conviction, according to the jail’s executive director, there is little help.

After 40 years in the courts — as a supervising narcotics court judge before being assigned to the felony trial call through 2010 — Fox has concluded that the problem is too big for the courts to fix. “There are so many people that use and abuse drugs,” he says. “My gut is the only thing you can do is decriminalize it. Under a certain amount make it a citational offense.”

“I’m not saying I’m in favor of it,” Fox adds, “but it’s the only thing you can do.”

Chicago police made an average of 76 arrests for drug possession each day last year, more than any other crime. That’s down slightly from 81 the year before. Cook County State’s Attorney Anita Alvarez’s office has a reputation for pursuing the charges with little review.

Critics say the aggressive enforcement is part of an unofficial agreement between police and prosecutors that goes like this: Police make high-volume arrests to maintain neighborhood order, prosecutors rubber-stamp the charges and punt to judges, who decide which ones to drop.

Like prosecutors, judges don’t want to be responsible for letting a violent person walk free. High-cost bonds are one way to avoid blow back.

Electronic monitoring has become a more palatable option. The number of monitors issued by judges under growing pressure to get a handle on jail costs has more than doubled from 725 last year to 1,752 this year, the Illinois Supreme Court recently reported.

The state’s high court has been monitoring bond court, nudging along the expansion of electronic monitoring after Preckwinkle called for an intervention last year. Under house arrest, defendants are monitored by the Sheriff’s Office.

There’s a growing concern that the “effort to get people out of jail quicker” is backfiring, Fox says. A big reason is the uptick in the number of people arrested on fresh charges for straying from their homes, which carries a felony escape charge. Halpert estimates that he sees between two and four of the escape cases pass through his courtroom each day.

“To a future employer,” Fox says, “that looks a lot worse than drug possession.”

Meanwhile, police and prosecutors — “the gatekeepers” for who lands in court, according to Ali Abid, a lawyer with the court advocacy group Chicago Appleseed Fund for Justice — continue to push through the charges.

The State’s Attorney’s Office reviews the facts behind most felony charges before formally filing a case, however, drugs are the exception.

It’s been a point of contention for years. Preckwinkle has called for expanding the formal felony review to drug cases. The idea was among a series of recommendations by a state commission at the beginning of the decade to head off dead-end drug cases.

“The problem with having the courts as the de facto review is the cost,” Abid says.

Public defenders say there’s an unwritten rule in the courts, where most cases unravel because of probable cause issues: If there is less than 1 gram of drugs involved, the case is likely to be kicked out.

“[Judges] can see this $143 a day hemorrhaging out of the county,” Abid says. “They know that they [defendants] are just going to get high again and they’re not a risk to public safety.”

Kathleen Kane-Willis, director of the Illinois Consortium on Drug Policy at Roosevelt University, studied the dismissals a few years ago. She and a team of researchers staked out a handful of preliminary courtrooms, where cases advance to after bond court, and noticed the pattern. As far as the jail population goes, 8 out every 10 times a possession case was dismissed during the past eight years, it involved the lowest-level — a class 4, felony charge.

“Maybe if the drug arrests were bigger,” Kane-Willis says, “judges would be more willing to overlook a bad arrest.”

Fox, a former preliminary court judge, disagrees. “So many of those cases are bad stops,” he says. If there were probable cause issues, he says judges think, “Why go any further with this case?”

Whether it’s intentional or not, Kane-Willis says, the system appears to be “correcting” itself more often in low-level drug cases than others.

“Can you imagine if we [convicted people] in all of these cases?” Kane-Willis adds. “The system can’t handle it.”

Public support for the war on drugs may be waning, but Illinois lawmakers don’t appear poised to change drug laws soon. The focus has turned to administrative fixes and, in Cook County, there are a lot of competing ideas for how to reduce the number of non-violent people clogging the courts and jail.

Over the past couple of years, the people with the power to make those changes — judges, prosecutors, police and county officials who control the budget that pays for it all — have been bickering over who’s responsible. But there are signs that they’re beginning to work more cooperatively.

In July, the state’s high court sent a group of them on a trip to Washington D.C. and Maryland to study pretrial systems that don’t rely on cash bonds or electronic monitoring.

Juliana Stratton, the executive director of the Cook County Justice Advisory Council, says the goal is to make the jail a place for people who “are a threat to public safety. Those are the people who should be in jail.”

But on a Friday in July, the bond court at 26th Street and California Avenue shows no signs of slowing down.

Within a minute of Halpert’s first client being whisked away, four more possession cases are called back-to-back.

Prosecutors rattle off a history of drug-related charges. The judge finds probable cause with each one and reels off the next court date, usually three weeks away.

“Everybody knows it’s futile,” Halpert says. “But it’s one of those things where everybody buries their head in the sand.”

This story was produced as part of the Social Justice News Nexus, an initiative at Northwestern University’s Medill School of Journalism that brings together reporters, community watchdogs and journalism students to cover issues that impact Chicago. Learn more at sjnnchicago.org. The Social Justice News Nexus is supported by the Robert R. McCormick Foundation.