New law limits jail time for poor who commit certain crimes

Detainees peer through a window at Cook County Jail

Photo by Sophia Nahli Allison

Detainees peer through a window at Cook County Jail

On any given day, thousands of inmates sit behind bars in Cook County Jail as their cases meander their way through the courts. Many are eligible for release pending trial, but they don’t have the thousands of dollars—sometimes far less—that they need to post bail. So they wait incarcerated for weeks or even months, the passing days wreaking havoc on their jobs and family life, without having been convicted of a crime.

Earlier this month, Gov. Bruce Rauner signed a law that creates a pilot project to help some of these detainees. The legislation, which passed unanimously in the Illinois Senate and by a substantial majority in the House, will create a separate court for inmates charged with low-level shoplifting and trespassing crimes. If their cases aren’t resolved within 30 days and they can’t raise the money for bail, Cook County Sheriff Tom Dart can release them.

The sheriff, who was one of the law’s strongest supporters, says between 150 and 200 of the jail’s average daily population of 9,000 inmates would be eligible for the program immediately. Many of these detainees committed crimes of survival, like the 41-year-old woman who has been in the jail for 128 days, after being arrested for stealing hygiene products from a supermarket. One man has been in jail for 46 days after allegedly trespassing at a fish restaurant.

“I’m tired of seeing so many detainees sitting in the jail just because they’re poor,” Dart said. “This law is going to force the issue.”

Some experts, though, say that Dart’s solution tackles only a symptom of a much broader and trickier problem: the fact that so many detainees are required to pay a cash bail in the first place.

The vast majority—82 percent—of the inmates released from the Cook County jail between April 2014 and April 2015 were held as they awaited trial, according to county data. Some (17 percent) were deemed too dangerous to leave the jail before their trial and a handful (about eight percent) were either released without conditions or put on electronic monitoring.

Cook County cash bail bonds

Most of the remaining inmates were given a financial bond to secure their release (the sheriff’s office couldn’t provide an exact figure because of a change in their data collection system late in 2014). Of those, less than half posted bail.

Inmates who posted bail within a week remained in the jail for an average of one day. By contrast, inmates who could not post bail stayed much longer; the average stay for inmates charged with property crimes was 88 days, and the median length of stay was 32 days. Some remained in jail longer than their maximum possible sentence if convicted, even before they had a trial.

Separate court could “clog the system”

Ali Abid, a criminal justice policy analyst with the Chicago Appleseed Fund for Justice, says that with the exception of a handful of cases like the ones Dart highlighted, low-level detainees tend to be released from jail long before 30 days have passed. He worries that creating a separate court could actually clog the system further.

“Thirty days sounds better than two months or two years, and it is, but it’s still a long time and that has an impact on people,” he said. “What we really need to change is the culture of judges and courts.”

Abid isn’t the only person to take a critical look at the widespread reliance on monetary bail within the Cook County system. In 2014, the Illinois Supreme Court appointed an administrator to overhaul the Cook County Circuit Court’s pre-trial services department, pointing to a general “lack of understanding” of how the system should operate among court and law enforcement officials. And earlier this summer, Cook County’s bond court began to use a new kind of risk assessment, an analytic tool to help judges decide who should stay in jail before their trial and who should be released. These assessments use a variety of factors—including criminal history, prior convictions, and prior failures to appear in court—to assess how much of a risk each defendant poses.

Bail is supposed to ensure two things: that defendants show up to court, and they won’t commit another crime while they’re awaiting trial. Recent research, though, shows that defendants who are released without bail are equally likely to come to their trial, and that bail doesn’t seem to do much to improve public safety.

If anything, the prevalence of pretrial detention has a negative effect. One study showed that when held for as few as two or three days, low-risk defendants were 40 percent more likely to commit new crimes before trial, compared to other defendants who stayed in jail for less than a day. Similarly, low-risk defendants who stayed in jail for 8 to 14 days were 50 percent more likely to commit a crime after their case was closed.

“Your ability to pay bail says very little about your risk to the community,” said Nancy Fishman, a project director at the Vera Institute of Justice and an expert on jails. “The reality is that most low-risk people don’t need to go to jail at all.”

In fact, most of the cases get thrown out.

Eight out of 10 misdemeanor cases were dismissed between 2006 and 2012,  according to a Chicago Reporter analysis in 2013 of records for 1.4 million cases maintained by the Clerk of the Circuit Court of Cook County and the Administrative Office of the Illinois Courts. The county’s dismissal rate is among the highest in the nation.

Assessing risk

Cook County’s bond court in the past has used tools to assess risk, but judges were skeptical about their accuracy and as a result, mostly ignored them. Anne Milgram, vice president of criminal justice at the Laura and John Arnold Foundation, which developed the new risk assessment tool that Cook County adopted in July, says that their goal is to reorient the way judges make decisions.

Before, decisions about bail tended to hinge on the types of charges brought against a defendant. “It’s somewhat rare, but you can have people committing low-level offenses who are high-risk, and people committing higher-level offenses who are lower risk,” Milgram said.

When it comes to making decisions about risk, “it’s about cultural change, a different way of thinking.”

A new law pushed by several Cook County commissioners is also trying to tackle bond reform from another direction. Right now, when inmates put up a certain amount of money for bail, Cook County keeps 10 percent of the bond as a processing fee. This means that if an inmate has to post a $6,000 bond, the county will charge them $600, even if they show up for trial. The new law would cap processing fees at $100, in an attempt to lower this burden.

But Sheriff Dart is hoping, eventually, to expand his program to include detainees who committed other low-level crimes, so that people who continue to slip through the cracks of the system don’t stay longer than 30 days.

“In a perfect world, this law should become useless because each bond decision is made thoughtfully and no one in this category ends up in the jail at all,” he said. “But in the meantime, I want the law as a failsafe. Thirty days, and you’re out.”