One Year After Cook County’s Bail Reform, Court Watchers Say Things Are Getting Worse

Chicago and its surrounding county was supposed to be a beacon of bail reform. After Cook County Chief Judge Timothy C. Evans imposed new rules and made sweeping changes to the bench, advocates hoped that virtually no one would be jailed because they didn’t have the money to make bail. But a new report has exposed that a change on paper doesn’t always result in a change in poor defendants’ lives.

In July 2017, Evans issued an administrative order that told judges that they have to consider whether people can afford bail before they set it.

The Chicago Community Bond Fund started court watching shortly after Evans’s ruling to track whether the public promise would make a difference in the courtroom. At first, it seemed to have the intended effect: In the first month after the order, the number of people who had to post money bonds dropped by more than half, while the number of people who were released on their own recognizance—allowed to leave upon promising to return for trial—doubled. Bail amounts also decreased, as did the number of people in jail.

Any lag in progress was chalked up to an adjustment period, organizers said. Advocates were told, “Oh, we’re still adjusting,” recounted Sharlyn Grace, co-executive director of the Chicago Community Bond Fund. “This is new, so don’t expect it to be perfect yet.”

But a year later, her group found that not only are judges still setting bail amounts that defendants can’t afford—meaning that more than 2,700 people are in Cook County Jail because they don’t have enough money—but that things are getting worse. The initial gains “have steadily evaporated and bond court outcomes are now approaching pre-Order levels,” the report states. The authors note that if judges were sticking to the order, there would be no bail amounts set at levels that defendants can’t afford; instead, it says, nearly 30 percent of bail amounts were unaffordable. Between November 2017 and June 2018, judges set unaffordable bail amounts for more than 1,350 people.  

In an emailed statement, Pat Milhizer, director of communications for the chief judge, agreed that there are about 2,700 people being held in jail because they can’t afford bail but pointed out that 87 percent had a current violent or weapons-related charge, a risk assessment recommending “maximum conditions” if released, an assessment flagging them for violence, and/or an active probation or parole case.

There should also be less need for the bond fund’s services if the order was working, but the report notes that the group hasn’t seen a decrease in requests: 877 people asked for help paying a bond they couldn’t afford since the order went into effect. The average bail amount from those callers is still over $80,000.

The report also states that instead of allowing most people to go free before their trials, the rate at which people were denied bond increased over the same time period, sending 522 people to jail without the possibility of getting out on bail. It has meant that while the number of people incarcerated because they couldn’t afford bail decreased, the number of people incarcerated without the possibility of bailing themselves out increased by the same amount, keeping the jail population steady throughout this year. The report also notes that the racial makeup of people jailed because of bail hasn’t changed since the order went into effect.

The findings indicate that bail practices are deeply entrenched in the court. Judge Evans replaced all six judges who oversee bond court last September with ones expected to stick to his order. Although many of those new judges at first released more people on their own recognizance, the progress has slipped. Judge Sophia Atcherson at first set the highest rate of I-bonds, which allow people to leave without paying anything, in the month after the order. And yet she has set unaffordable bail amounts for 16 percent of people since then, and the rate is getting worse, more than tripling since late 2017. Court watchers observed the same patterns for the five other judges.

“We would claim a small victory in that certainly these judges are making fairer decisions, decisions that honor the presumption of innocence much more than judges previously,” Grace said. Still, the report notes, “Decreasing commitment to the constitutional requirements embodied in [Evans’s order] is a constant across all judges.”

In a press release marking the first anniversary of Evans’s order, his office pointed to a reduction in the jail population and an increase in the number of people being released before their trials, including 78 percent of people accused of felonies, up from 59 percent before the order.

“This is what evolution looks like in the administration of justice,” Evans said in the release. “We are striking a balance between protecting the public and protecting the rights of the accused, who are presumed innocent.”

One problem, Grace said, is that the judges are still incentivized to rely on bail. They are elected officials, and “the public pressure not to release people, and the real and imagined risk of releasing someone, which we know is very low, looms large in the imaginations of judges,” Grace said. The judges adhering most closely to the order “were out on a limb. They were the ones who were vulnerable even though they were making the decisions that the law requires,” she said, as they face potentially losing their seats over public outrage if someone is released and then commits another crime. But “they’ve moved closer to the other judges rather than the other judges getting braver.”

Meaningful reform simply won’t happen until cash bail is off the table altogether, Grace said. “The whole idea of affordable money bond doesn’t really work. What we need to do is eliminate secured money bond, because it’s ineffective,” she said. “We need to actually take away the power that judges have to use this tool. …  Otherwise it’s continuing to be used as a crutch in a system that’s broken and has all the wrong incentives.”

The lack of progress also brings into question who is policing judges. “There’s this underlying question of judicial accountability and who actually makes judges follow the law,” Grace said. Judges were already required by state law to determine a defendant’s ability to pay, but simply weren’t doing it.  Evans’s order itself is unprecedented and it’s unclear if the chief judge has the power to enforce it. The Chicago Community Bond Fund is now stepping up to the plate, looking at options to appeal bail decisions and support policies in the public defender’s office that could help clients get released.

“One of the most important lessons and takeaways is the need for ongoing monitoring,” Grace said. “This just points to the ongoing need for grassroots accountability measures.” One new tactic her group is exploring is having court watchers make themselves more visible in the courtroom. Up until now, they have tried to blend in, only interested in collecting data and not influencing the proceedings. But they might switch to signaling to judges that they are being watched.

Her group is also pushing for a state Supreme Court rule against the use of money bail, which would be statewide, more permanent, and most likely carry more weight than Evans’s order.

“Many people in the criminal justice system have the attitude that, ‘Well, it’s so much better than it was,’ that we’ve gone far enough,” Grace said. “We are very much continuing to focus on the fact that there are still thousands of people in Cook County Jail … today because they cannot afford to pay a money bond.”

“We don’t let the system tell us when it’s succeeded without an external check from the actual people being impacted and their allies,” she added.