Criminal justice reform advocates celebrated this week as the U.S. Department of Justice first announced it would phase out contracts with private prisons, then said bail bonds that keep poor people in jail are unconstitutional.
However, don't expect the the DOJ's new position on bail bonds to bring relief to the thousands of poor inmates awaiting trial at Cook County Jail. Illinois law already prohibits fixed bail, and the poor are disproportionately jailed here anyway.
The DOJ's take on fixed bail bonds—a specific price to be paid to secure release from jail—came in the form of a friend-of-the-court brief written in support of a plaintiff in a civil rights suit against a Georgia town.
Bail set "without meaningful consideration of an individual's indigence and alternatives . . . violates the Fourteenth Amendment," the department wrote.
The lawsuit was filed by a mentally ill man who had been arrested for public drunkenness and jailed for six days. The man's complaint argued that he was held only because he was unable to pay the $160 in bail, and that he was not otherwise a flight risk or a danger to the community.
Illinois is one of a handful of states that already outlaws fixed bails, and thus won't be affected by the DOJ's directive. That doesn't mean the status quo is good for poor arrestees here.
Illinois state law dictates that bond court judges must weigh 30 different factors in their decision to set bail amounts—among them, the defendant's criminal history, ties to the community, previous failures to appear in court, mental health, and financial means.
But meaningful deliberation about condemning defendants to await trial in jail is often scarce.
"There's a public perception that [bond hearings] are detailed hearings, that they're well-founded decisions," says Sharlyn Grace, a criminal justice policy fellow at the Chicago Appleseed Fund for Justice, a court watchdog group. "But the decision about whether they're going to be incarcerated for that time is happening in 37 seconds, 25 seconds."
The situation in Cook County Jail is thus similar to that of other jails, including Rikers Island in New York City and the LA County Jail: large numbers of inmates are held awaiting trial on low-level offenses, sometimes for years, simply because they can't afford their bonds.
As of Wednesday there were 8,100 people awaiting trial in Cook County Jail. Of those, about 20 percent need less than $5,000 to get out, according to Cara Smith, chief policy officer for the Cook County sheriff's office and former director of the jail. Of those, around 170 people need less than $1,000 to be released.
"We unquestionably have people in the jail who are here solely because they are poor," says Smith. On rare occasions, Smith says she has seen inmates with bonds as low as $150 who nevertheless couldn't afford to leave. "When you're talking about very low level offenders who are charged with crimes of survival, they don't have $5, much less $1,000," she says. "You're essentially putting them on a no bond status—they're going to be in custody throughout the duration of their case."
And since "'justice moves at a glacial pace here in Cook County," as Smith puts it, sometimes people end up staying in jail longer than the prison sentence could have been for their alleged crime. The Appleseed Fund's Grace adds that people who are jailed tend to get harsher sentences because they agree to less favorable plea deals just to get out of jail in the short term.
In addition, county records and interviews with experts suggest that bail amounts have skyrocketed over the decades. Though there is no floor or ceiling to bond amounts in the county, one class of common bonds, D-bonds, rarely dip below $10,000 (or $1,000 needed to leave jail). In the 80s and 90s, D-bonds were sometimes in the low hundreds of dollars.
"People who are impacted by these high bonds are no wealthier today than they were 20 years ago," says Smith, adding that that poor African-Americans are disproportionately impacted.
The chief judge's office said that it is up to the discretion of each judge to assign the amount of the bond, but didn't comment further.
While the DOJ's position on fixed bail is encouraging to legal observers, Cook County stakeholders say that reforms here will require a much more meticulous approach.
"We have a much more nefarious problem here," says Smith. "While we have the same effect on the poor, it's trickier to get at because the statute [governing bond-setting] is so expansive."
According to Smith, the sheriff's office is drafting legislative proposals to address the problem of poor, low-level offenders awaiting trial in jails due to their inability pay bonds.
"We are very hopeful that this Department of Justice position and filing will result in a renewed focus on our bail statute and hopefully some legislative activity around changing it," Smith says.
And the Appleseed fund is now leading a local coalition proposing to get rid of money bail altogether.
"There isn't real evidence that having someone pay a money bond improves their rate of [court] appearance," says Grace. "It would be much cheaper in Cook County to have text message reminders than keeping people incarcerated."
"The Department of Justice position is in line with our thinking," Frank Shuftan, a spokesperson for Cook County Board president Toni Preckwinkle, says in a written statement. "We will continue our work on this issue until only people who are a danger to the community or a flight risk remain in the jail prior to trial, and the crushing financial burden is lifted from Cook County taxpayers."
The county is in the process of implementing a new system for evaluating a defendant's risk, which the chief judge's office says will help judges make more calculated bail decisions.
Whether and how quickly that makes a difference for the hundreds of poor inmates awaiting trial behind bars remains to be seen.