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Do we have the right people locked up?

How a medieval court system is costing you money—and compromising safety



On August 8 Judge Laura Sullivan took her place on the bench in Cook County's central bond court, where the process of deciding who would sit in jail and who would walk free began just after noon. Most days, it ends less than two hours later, after whichever judge is on the bench that day spends an average of a minute apiece determining the price of liberty for more than 100 recently arrested men and women.

First up, and taking the most time, were the handful of defendants with the means to hire private attorneys—one of many indications that afternoon that there are tiers of justice based on access to money.

Among the class of privileged arrestees was Wyman S., a black 29-year-old with dreadlocks and a right eye nearly swollen shut—the result of a scuffle with police two days earlier.

Officers on patrol in the south-side Calumet Heights neighborhood saw him turn his silver Lexus without signaling, according to the police report. When they tried pulling him over he began throwing items out the window and sped off. The officers lost him, but a police helicopter helped track his car until he was finally cornered in a Walgreens parking lot several miles away. Wyman jumped out of his car and fled on foot before several officers were able to catch him. They found a handgun in his car and a small plastic bag of marijuana in his front pocket. The police department's gang database identified Wyman as a member of the Boss Pimps, a faction of the Gangster Disciples.

In bond court, a prosecutor boiled down the account to a few facts: Wyman had led police on a car and foot chase, and he was now facing 11 felony counts on charges of fleeing from police, aggravated battery against a peace officer, driving on a suspended license, resisting arrest, and possession of cannabis. The prosecutor noted that Wyman had previously been convicted of aggravated unlawful use of a weapon and gun possession. On two occasions he'd failed to appear for dates in court.

Wyman's attorney, William P. Murphy, said he's known Wyman for ten years and stressed that the young man lives with his family and has been gainfully employed his entire adult life.

He'd barely finished before Sullivan rendered her decision, spoken so fast that it was nearly unintelligible: bond would be set at $60,000. That meant Wyman would have to come up with a $6,000 deposit to bail out of jail. The sheriff's police led him away.

The whole exchange took no more than two minutes—and was one of the longest bond hearings of the day.

A few minutes after Wyman's appearance, bond was set almost as high for Michael D., one of dozens of the day's defendants charged with a drug offense. Police had found him riding a bicycle on a west-side block where drug dealing had been reported. When they asked to see his identification, he dropped a small plastic bag to the ground. It turned out to contain heroin.

The narrative, again, was truncated in court: he was charged with possession of a controlled substance, and the prosecutor stated that Michael had previously been convicted of drug possession and, 22 years ago, of attempting to conceal a homicide (though not of the homicide itself). At the time of his arrest, Michael was on parole for burglary.

Like the vast majority of the accused, Michael was represented by a public defender with dozens of new clients each day. The PD typically had time to spit out just a handful of biographical details in a practiced cadence. "He is a 53-year-old lifelong resident," the public defender said. Then, after glancing at the police report, he added that this arrest was for just one-tenth of a gram of heroin.

Judge Sullivan responded by setting bond at $50,000. The entire exchange lasted less than a minute.

The stream of defendants continued. A disheveled 56-year-old woman was brought in for possessing a tenth of a gram of heroin; her bond was set at $25,000. Bond was set at less than that—$20,000—for a 25-year-old man allegedly picked up with a loaded .22 revolver who had no prior record.

And then there was Leonard B., a gaunt 50-year-old accused of shoplifting at the Lakeview Walmart. The charges had been upgraded to felony retail theft because of his previous convictions over the last three decades for theft, robbery, burglary, and possession of a stolen car.

But the public defender pointed out to the judge that the current accusation wasn't the most heinous of crimes: "Your honor, this is for the alleged theft of six bars of Dove soap worth $8."

Sullivan called out her order: "Bond is set at $25,000."

"The bond court is a disaster. It's random. It's chaotic. It's all mixed up."—William P. Murphy

There is no law or even a formal set of guidelines determining what bonds are appropriate for what crimes. In fact, state law strongly discourages monetary bonds, declaring that they should be used only when "no other conditions of release will reasonably assure the defendant's appearance in court." In those instances, the bond amount should be "considerate of the financial ability of the accused." But Sullivan and the other bond court judges almost always make defendants post money to avoid time in jail.

And what happened to these arrestees in the next several weeks raised more questions about whether the bond process ensures justice for all of the defendants—let alone safety for the public.

Not surprisingly, Leonard, the soap thief, couldn't come up with the $2,500 he needed and sat in jail for more than a month awaiting trial. Finally, on September 11, he was convicted of retail theft, and the next day he was shipped to prison downstate.

Michael, the repeat drug offender, was also unable to come up with the cash to bail out. He was held in the jail for three weeks—until a judge found there was no probable cause to sustain the charges and dismissed the case, as is common when such a small quantity of narcotics is involved. So Michael was incarcerated, at a cost to taxpayers of about $3,000, for an allegation of possessing $5 worth of drugs that was, by the court's estimation, without merit.

But the outcomes were better for many more moneyed defendants, including several accused of gun crimes and violence. Wyman, the convicted gun offender who'd allegedly tussled with police, sat in jail for six days. But by that time he was able to round up $6,000 to bail. He's now free until his case goes to trial.

Murphy, his attorney, acknowledges that the bond process in Cook County makes no sense. "The bond court is a disaster," says Murphy, who has practiced law for 45 years. "It's random. It's chaotic. It's all mixed up."

Cook County commissioner John Fritchey, who watched the proceedings in bond court that day, has called for reforms in the system. "The fundamental flaw is that it's a test of financial means rather than flight risk or risk to society. Somebody can sit in the jail for stealing a cell phone while someone caught with a gun who has access to cash can walk."

Increasingly the jail is warehousing defendants who simply can't afford to leave. And taxpayers simply can't afford to keep them there. At a time Chicago continues to make international headlines for violence, officials estimate that tens of millions of dollars are spent each year jailing people who pose few risks to the public, limiting resources for crime prevention and rehabilitation.

If anyone needed a warning that the jail population is getting out of hand, it came late last summer. On August 20 Cook County sheriff Tom Dart announced that the inmate count had climbed to 10,182, its highest level in six years.

A day later Dart had to issue another statement, this time acknowledging that his staff had made a serious error amid the swelling population—after misreading some paperwork the week before, they'd accidentally released an inmate from custody. Though the inmate was caught a few hours after the mistake was discovered, he'd already violated an order of protection and attacked his girlfriend.

He was the second inmate to be mistakenly freed since the beginning of the year. The first was a convicted murderer who was also caught after a couple of days.

Dart blamed the growing jail population and an antiquated paper records system that wasn't sufficient for the volume of inmates going to and from court each day. The sheriff warned that the situation "puts residents of Cook County at risk."

"When we have a population like this, does it make all the issues we have more complicated, times ten?" Dart said to me in an interview. "We'd all like an excuse for everything, but yes, it does."

Just three years earlier Dart had made national news when he announced that he was closing two sections of the 96-acre jail complex—a promising development, considering officials had struggled for decades to comply with federal court orders to manage the surging inmate population. Even after buildings and cells were added in the 80s and 90s, overcrowding periodically forced inmates to sleep on the floor or use bunks in shifts.

Yet in 2010 the flow of inmates had slowed enough that Dart was comfortable shutting down areas with 900 beds. Cook County taxpayers spend about $300 million a year for jail operations, and Dart and other officials estimate it costs an average of $143 per day to lock up each inmate. They say the only way to cut the costs is to reduce the population enough to shutter entire sections of the facility. The sheriff estimated that closing the two sections of the jail would save $15 million a year that could be used to bolster public safety elsewhere.

That goal was embraced by Toni Preckwinkle, who made it part of her successful campaign for county board president that year. "The first thing we're focusing on is bond court, because that's the gateway to the system," Preckwinkle told me in a 2011 interview. "It's arbitrary, capricious, and denigrating to the poor people who are there, both as alleged perpetrators, and their families. I mean, it's medieval."

The other key players in the local criminal justice system—including state's attorney Anita Alvarez and Timothy Evans, chief judge of the circuit court—all signed on to the concept of cutting the daily inmate rolls. Preckwinkle set a goal of getting to about 8,000 by 2012.

Instead the population went in the other direction.

One reason is obvious: Chicago police ramped up their pace of arrests to cope with violent crime that's become a national story line.

But that's not all that's happened. The average stint in Cook County jail stretched from 48 days in 2007 to 57 days in 2012, according to an analysis by Loyola University professor David Olson. The vast majority of inmates—more than 70 percent—are there for nonviolent offenses.

Part of the problem is that the process of bringing cases to trial is taking longer. But a huge portion of inmates just don't have the money to buy their release: About a fifth of everyone in the jail on a given day was there because they couldn't come up with $6,000 or less to bail out. Even those who eventually get the money together spend almost two weeks in jail first because bond amounts are so high.

And many others sat in jail for days, weeks, or even months, only to have their charges dropped. That was the case with Michael D.—and with almost 16 percent of arrestees released from jail last year. Another 13 percent were eventually sentenced to probation. Altogether, defendants were behind bars for the equivalent of almost a million total days last year only to have their cases dropped or end with probation.

In contrast, the jail population is falling in most jurisdictions around the country, including several downstate counties that Cook County now pays to house some of its overflow inmates. In New York City, the jail population was cut nearly in half between 1993 and this summer—at the same time crime there has hit historic lows.

Sheriff Dart has told anyone who will listen—including, most recently, 60 Minutes—that the jail is essentially a mental health ward. "Other than the people convicted of murder or some sexual assaults, everyone here is getting out at some point," Dart says. "Do you want them to commit a new offense, a worse offense, or do you want to have some resources to fix these broken toys? You can't do that if you're spending all your resources just trying to manage the population here.

"But forget the human side. Just on the fiscal side, there's no way to keep this going. We need to segregate the really bad ones and find something new to do with the others, and we can't do that this way."

The cost of incarcerating Michael D. - Value of heroin Michael D. was charged with possessing: $5; approximate cost of jailing him for 21 days after he couldn't pay $5000 to bail out: $3,003; outcome of case: charges dismissed by a judge

A couple of weeks before Dart's announcement I accompanied Commissioner Fritchey to get a good look at the cramped portion of the jail basement where defendants are processed before being led to bond court. It's a place rarely viewed by the public, though through the years a number of journalists have paid it a visit, including my colleague Steve Bogira, who described it in the opening chapter of his acclaimed 2005 book, Courtroom 302. It's hardly changed since.

By the time arrestees get to the facility at 26th and California, most have been detained for hours, even a full day or more, as police prepare reports and run background checks. As the disheveled men—and a few women—sit in cells in the basement, police in adjacent rooms review their paperwork, checking identification and charges to make sure they're holding the right people. Other officers place the arrestees' shoestrings, belts, and other property in clear plastic bags labeled with their new jail ID numbers.

For years the defendants remained in their holding cells as pretrial investigators for the probation department, public defenders, and the occasional private attorney interviewed them through cell bars. But last winter county officials created several narrow carrels where about ten pretrial investigators face the defendants through Plexiglas and run through one-page questionnaires to learn a little more about them: What's your last name? First? How long have you lived at your current address? Are you single, married, or divorced? Any children? Where did you go to high school? What was the last grade you finished? Are you working or in school?

It's hard to hear anything amid the din of ten interviews under way at once in a space about 30 feet wide, with more conversations in surrounding cells, correctional officers ordering defendants to march one way or another, and phones ringing. Defendants frequently had to ask the investigators to repeat the question.

The interviews rarely lasted longer than five minutes. "Good luck to you, sweetie," one of the investigators wished each of her interviewees. Then they were herded back to their cells. Everything had to be finished by a little after 11.

By that time the defendants were moved into two cells, one for each sex, just downstairs from the courtroom. The larger of the cells was roughly 30 feet by 15 feet, and 87 men were packed into it, even around the filthy toilet in the corner. They all looked worn, even the young guys, and a couple had black eyes. Their clothes were wrinkled and grubby, and nobody had the energy to say much. The air was almost unbreathable—rank with sweat turned even more pungent by rage and fear. All the men were black except for a couple of Latinos.

At just after noon, the correctional officers began barking out orders and the men filed upstairs, where officers led one or two at a time into the courtroom.

What happened to them there was often dependent on the luck of the draw, since bond court judges rotate, and some set higher bonds for certain offenses than others do. On one afternoon, some defendants accused of possessing small amounts of drugs were given low bonds or even let go on their own recognizance—except when they'd been caught within 1,000 feet of a school, in which case the judge repeatedly set their bonds at $100,000, higher than for some of the men allegedly caught with loaded semiautomatic handguns.

Another judge the next week put about half of the defendants on electronic monitoring, but rarely spent more than 45 seconds on a defendant and frequently announced the bond amount without giving the public defender the opportunity to speak on behalf of his client.

"It's shocking to see the assembly-line process and how lives are decided in that period of time," says Dominique Nong, a clinical fellow at Northwestern University Law School who has been working with pretrial services officials. "The short time period they spend before the judge is really a reflection of the short time period public defenders and pretrial investigators have to do research beforehand."

Pretrial investigators rarely have the opportunity to verify any of the information they gather, which lowers its credibility with judges. While some judges say they review the forms, on the days I was in court the judges never referred to any of the information on them. That's not uncommon—the Chicago Appleseed Fund for Justice, a legal research organization, made the same observation in a 2011 report.

That report also found that investigations were conducted for only a small portion of defendants, and little has changed since then. Last year about 11,400 pretrial interviews were conducted, according to a report by Preckwinkle's office—accounting for just 15 percent of the admissions to the jail.

The public defender's office says its attorneys can barely keep up with the caseload either. On some weekends, when bond court is flooded with dozens of additional defendants from suburban Cook County, the public defenders don't even have the opportunity to interview all of their clients before the hearings start.

"I'll tell you that it's a work in progress," says first assistant public defender Patrick Reardon. "We have enough people during the week to interview people fairly thoroughly before we go to court. Now, does the judge listen, or do we get the time in court? You'd have to go to the courtroom and see."

Over the last year and a half Nong and teams of law school students have helped call family members and employers to verify more of the information that's collected. In a number of cases, the information has been helpful even after the first bond hearing. Public defenders have used it as they file motions to have the bond lowered, sometimes successfully.

"We have not had one client we couldn't find helpful information for," says Nong. "Even if they don't have kids, maybe they're caretakers for family members, or they're getting drug counseling. That doesn't mean we always win, but we have had successes. What if you had this information the first time around? You wouldn't have to sit in jail. The humanity of these people was being lost."

It's not a revolutionary approach—other municipalities, including Washington, D.C., and New York City, have independent agencies that evaluate cases, collect and verify information, and provide judges with formal risk assessments. Witnesses are even brought in to testify before judges. Advocates say the process is far more effective and safe. In Brooklyn, for example, most defendants are released prior to trial without posting money, and they show up for court at an even higher rate than in Cook County.

"In an environment like ours, people move right along—'Let's get to the next case,'" says Reardon. "When you can slow it down, judges will listen to it. But that requires a cultural change."

It would also require a political evolution. Reardon notes that judges are far more inclined to set high bonds than when he first started practicing law in the 1970s. At that time, he says, most people were let go on their own recognizance until they went to trial. It's no coincidence that the jail complex has grown since that time from one division to 12. "You can't convince me that over the last 40 years we're 12 times more criminally inclined than we were then."

"How can you have a thoughtful discussion in 20 to 30 seconds? You couldn't conceivably have the right information."—Sheriff Tom Dart

In the late 80s a federal judge ordered jail officials to release hundreds of inmates to ease overcrowding. The officials complied, relying on the only information they had—the inmates' current charges. Neither hearings nor investigations were conducted. Dozens of the inmates were quickly picked up for new crimes. The Tribune reported that one released inmate was subsequently arrested for a rape, another for a double homicide. Though such incidents were rare, they fueled demands to lock up more suspects.

"The solution is to expand our corrections facilities, not to release dangerous offenders," the state's attorney at the time, Richard M. Daley, told the Sun-Times.

No one is openly campaigning to expand the jail again. But the fear of releasing the wrong guy—and getting attacked for it—still looms heavily over the officials deciding who should be jailed.

"There's the issue of being afraid of being the Willie Horton judge," says Timothy Evans, the chief judge of the Cook County circuit court. "I'm sure at some point a judge is going to consider all these factors from the statute, and the risk assessment, and end up releasing someone who either doesn't come to court or does something dastardly when they're out. And I hope people will stand with that judge if he's considered all these factors and followed the law. If the judge does everything he could do, it still could happen."

Two years after officials agreed to work toward reducing the jail population, all the major players are blaming each other for its growth.

Officials in the office of state's attorney Anita Alvarez maintain that curtailing the jail population isn't their job.

"Our mandate is public safety," says Fabio Valentini, chief of the criminal prosecutions bureau. "We're not going to stop charging felonies tomorrow because the jail population has become too big."

Just because thousands of cases are dismissed, including those involving small quantities of drugs, doesn't mean they shouldn't have been charged, Valentini adds—that's on the judge. And Valentini says it's up to Preckwinkle's office to find the funding so prosecutors can get more defendants to plead guilty earlier in the process.

Judge Evans also blames Preckwinkle. What the county really needs is a stand-alone pretrial services center like those in Washington and New York, he says. "I believe a judge should have an objective voice to listen to . . . so the judge doesn't have to be clairvoyant."

But Evans says he can't get backing for even a modest expansion of the current program, which he says he pieced together in 2008. "President Preckwinkle's office said they wouldn't permit me to cobble together even those resources."

Evans also calls out Dart, noting that the sheriff has the authority to release hundreds of inmates on electronic monitoring on top of the 1,200 currently ordered by judges. "I think everyone agrees now that reducing overcrowding is not the responsibility of the judiciary but of the sheriff."

But not everyone does agree. Dart is exasperated with the chief judge for expecting him to release anyone without knowing their full background. "Do I close my eyes and say eeny, meeny, miny, moe?" he says. Those questions should be asked in bond hearings, but "how can you have a thoughtful discussion in 20 to 30 seconds? You couldn't conceivably have the right information."

Preckwinkle has also blamed Evans. In letters dated September 12 and published in the Sun-Times, she asked each of the justices on the Illinois Supreme Court to appoint auditors to examine Cook County's court system, with a particular focus on trial delays and deficiencies in pretrial services.

"During my tenure, I have been disheartened to discover that our County's administration of justice is not in accordance with the standards the residents of the State of Illinois both deserve and are entitled to under the law," Preckwinkle wrote, adding that the cooperation of the stakeholders has been "decidedly mixed."

Chief Justice Thomas Kilbride responded two weeks later by asking Preckwinkle, Evans, Dart, Alvarez, and Public Defender A.C. Cunningham to sit down with all of the justices as well as a federal court judge. The date has not yet been set.

"We are hopeful that a frank discussion by the stakeholders in our presence will produce a positive, collaborative working relationship and develop concrete proposals," Kilbride wrote.

In the meantime, the tab for housing inmates keeps mounting, and the fate of hundreds of people a week is decided in less time than it takes to wait for a stoplight to change.


In bond court, it's better to be lucky than good

In Cook County, the price of bailing out of jail varies depending on the current charges, prior criminal record, and the luck of the draw, since judges each have their own standards. And, though all defendants are presumed innocent until proven guilty, walking free depends on being able to round up cash. Here's what happened to a sample of the accused in bond court recently, from lowest bond to highest.

Suspect and charges

Martell T.: In court August 8, charged with possessing about an ounce of marijuana. Has prior convictions for marijuana possession.

Placed on home confinement with electronic monitoring.

Chaundell W.: In court September 18, charged with manufacturing/delivering one to 15 grams of heroin and violation of probation. Prior convictions for narcotics.

$10,000 bond. (Still in jail.)

Kurtis M.: In court September 18, charged with aggravated unlawful use of a weapon for possessing a loaded revolver. No prior convictions.

$20,000 bond. (Bailed out on August 25, skipped next court date.)

Antwon M.: In court September 18, charged with unlawful use of a weapon for possessing a loaded eight-millimeter handgun. On juvenile probation for gun possession.

$30,000 bond. (Still in jail.)

Jerome Y.: In court September 24, charged with aggravated battery and resisting arrest. Prior conviction for reckless conduct.

$50,000 bond. (Still in jail.)

Theodore S.: In court September 18, charged with retail theft for shoplifting wine, Tylenol, and Advil worth a total of $22.77. Dozens of prior arrests, convictions for trespassing and theft.

$60,000 bond. (Jailed until September 25, when the charges were dropped.)

Charles F.: In court September 18, charged with manufacture/delivery of one gram of heroin within 1,000 feet of a school, attempted sale to an undercover officer. Four prior narcotics convictions.

$100,000 bond. (Still in jail.)

Byron Champ, Tabari Young, Brad Jett, Kewane Gatewood: In court September 24, charged with attempted murder and aggravated battery with a firearm for the shooting of 13 people at a Back of the Yards park.

No bond—jailed pending trial.

Jillian Sandler helped research this story.

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