The night before historic bail reforms were set to take effect on Jan. 1, Cook County court officials and workers were poised to implement the new system after years of seemingly nonstop meetings.
They replaced all the paperwork used for bail-related releases with new forms revised to comply with the law that eliminates cash bail as a condition of release from jail, judges told the Tribune.
Then, on New Year’s Eve, the Illinois Supreme Court halted implementation of the measure hours before it would take effect, putting the reforms in limbo and sending local court staff scrambling to reverse course for the court day.
“We showed up on Jan. 1, … we had all our new forms ready,” said Cook County Judge Mary Marubio, head of the pretrial division. “We didn’t order the old forms.”
She told the public in court that morning to expect some “hiccups.”
“It’s a massive ship that needs to be turned,” said Judge Charles Beach, a judge in the pretrial division. “It doesn’t turn on a dime.”
Now, after a nine-month delay due to litigation from prosecutors across Illinois who opposed the law, the reforms will be rolled out Monday, a seminal moment for the state after years of debate over how to keep the public safe and create an equitable criminal justice system.
Those who work in that system told the Tribune they expect a little mayhem at the outset but tell of countless stakeholder meetings over the two-year preparation period ordered by the legislature.
They expect the reforms will be watched closely. Though a number of jurisdictions have eliminated or reduced cash bail in some form, Illinois is the first state to fully eliminate it legislatively and is a trailblazer in that respect.
The cash-bail measure, passed as part of the sweeping SAFE-T Act, has been controversial for those concerned about the public safety impact of the provisions — particularly Republicans. Opponents of Gov. J.B. Pritzker have sought to paint him and his Democratic allies as weak on crime — though studies of bail-reform measures in other jurisdictions have not shown a significant effect on recidivism or failure by defendants to appear in court.
Proponents of the law have long argued that cash bail deepened disparities in the system by disproportionately jailing people too poor to make bail, though some progressive advocates are citing concern about the law leading to an overreliance on electronic monitoring.
“Remember, the system we have today isn’t a perfect system. The system we’ll have on Sept. 18, 19 isn’t going to be perfect either,” said Amanda Pyron, an advocate for survivors of gender-based violence who helped shape the law. “We have to see if this system is going to be a little less imperfect than before …. That’s going to take a little time.”
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‘A little more in depth’
In Cook County, defendants and family members crowd daily into gallery seating at the Leighton Criminal Court Building and wait for their incoming cases to be called.
The judge explains different types of bond orders — such as bonds where the full amount is due, or only a deposit — and then the often lightning-fast court call begins.
In addition to eliminating money as a factor for release, the Pretrial Fairness Act is also intended to level the playing field and offer defendants more time to make a case against pretrial detention or excessive supervision orders.
Under the new system, there will be an “initial appearance” court call, where defendants will mostly be released with conditions, such as regular check-ins with authorities, as well as a court call for detention hearings made up of the more serious cases in which prosecutors seek to keep defendants incarcerated while they await trial.
Those hearings will be longer, with defense attorneys able to call witnesses to speak on behalf of the arrestee.
“We’re expecting them to be a little more in depth than the current 60-second bond hearing,” said Takenya Nixon, an attorney supervisor for the Cook County public defender’s office. “It’s … no longer one-sided.”
In Lake County, prosecutors have begun submitting hearing requests for some of the county’s 50 pending murder cases, State’s Attorney Eric Rinehart said.
Judges ultimately will have to rule on whether the law extends retroactively to such cases, he said.
The hearings should result in more dangerous people being incarcerated because they won’t be able to pay money to get out, as happened in one pending case where a man shot someone after posting bail, Rinehart said.
The requirement for a hearing within 48 hours also should help to gather and clarify evidence early in the case, Rinehart said, which should help speed up the entire process and make it more fair.
Defense attorneys, who often were paid out of posted bond payments, may now ask for upfront retainer fees more often, he added.
Impact on public safety
Cook County has already been working under some degree of bail-reform measures since 2017, when a general order from Chief Judge Tim Evans sought to reduce judges’ use of money bond as a condition of release, with studies offering a look at the impact of bail reform.
A 2020 study of the order’s effects found that it “was associated with a slight increase in the odds of (failing to appear in court) but was not associated with the odds of new criminal activity or new violent criminal activity.”
The percentage of defendants racking up a new criminal case remained steady at around 17% before and after the order, the study found, as did the percentage of defendants who were charged with a new violent offense, around 3%.
Defendants released pretrial rose from about 77% before the order to about 81% after, according to the study conducted by Don Stemen and David Olson, directors of the Center for Criminal Justice at Loyola University Chicago.
The study also found no “statistically significant change in the amount of crime in Chicago” in the year after the order.
Studies of bail reform in other jurisdictions, such as New Jersey, which eliminated most instances of cash bail, have reached similar findings.
Pyron, executive director of The Network, a domestic violence advocacy organization, said she hopes to see “risk-based decision-making” from judges and prosecutors, as well as notification to survivors of bond hearings and that their input is being sought.
“I think we too often use metrics around arrests and incarceration to be indicators of safety all by themselves,” Pyron said. “The metrics I want to see measured are survivor input into the process.”
Cases involving murder charges and other serious allegations of violence will by and large still result in defendants being held in custody pretrial, though officials can’t predict with certainty how prosecutors and judges will approach other charges in which the law allows for detention.
Officials expect that domestic violence cases will make up a large portion of those that become slated for detention hearings. Some weapons charges could go either way, officials have said.
“Just because something is detainable … doesn’t mean it will be filed all the time,” Marubio said.
At a recent panel discussing implementation of the act, Marubio said the county could see about 20 detention hearings on weekend days and 10 on weekdays.
Regarding people jailed on money bonds, Nixon said public defenders will look at each case individually to decide whether to file a petition seeking release.
“We’ll have to decide, along with the client, if asking the court to review the bond under the new law is more beneficial than under old current law,” Nixon said. “If their family is on the cusp of getting all the money together in order to bond them out, it might be a better situation for them than having a detention hearing.”
DuPage County State’s Attorney Bob Berlin said later amendments to the law that allowed judges more discretion to detain defendants in a greater number of cases assuaged some concerns raised by law enforcement and prosecutors.
One of the biggest amended changes, Berlin said, was to include detention for defendants judged a threat to the community, rather than just those who posed a specific threat to a person, as it was initially.
Potential detention was expanded to include all nonprobationable felonies, but many low level, Class 4 felonies, such as criminal damage to property, are nondetainable.
Berlin said he generally expects people to be detained if they are charged with murder, aggravated criminal sexual assault, serious domestic battery, carjackings with a gun and armed robberies with a gun, but it’s up to the judge in each case.
“The amendment is significantly better than the original law, but I still think it needs to give judges more discretion,” Berlin said. “It’s really unclear how it’s going to work.”
Olson, who co-authored the study of Cook County bail reform, said at a recent panel discussion that it remains to be seen how officials in each individual county approach the new system.
“We don’t know at what rate prosecutors will seek detention, at what rate judges will impose detention,” he said. “It’s likely to vary.”
Supervision on the street
Ways of supervising those who will not be incarcerated also vary widely across Illinois counties, with some having robust electronic monitoring and pretrial monitoring programs and others having little to no programs in place.
As a byproduct of the legislation, prosecutors may ask more frequently for electronic monitoring of people who are released, Rinehart, the Lake County prosecutor, said, though advocates for progressive criminal justice reforms are already raising concerns about an overreliance on such programs.
“How (defendants) are supervised or whether they are supervised varies dramatically from county to county,” Olson said.
Last month, the state rolled out a new program that will provide electronic monitoring in 70 counties, the first time it has been overseen by one agency across such a wide swath of Illinois, according to the Office of Statewide Pretrial Services.
But the Illinois Network for Pretrial Justice, an organization that worked to pass the abolition of cash bail, put out a statement criticizing the statewide electronic monitoring program, arguing that expanding such programs violate the “spirit” of the Pretrial Fairness Act.
“It feels like a half-baked plan that somebody put together to convince someone the (state is) doing something so that the streets aren’t running wild with criminals,” said James Kilgore, who works for a reentry program in downstate Champaign and is a researcher for an organization challenging electronic monitoring programs.
Kilgore said awaiting trial on house arrest can make it difficult for people to keep jobs and meet daily needs.
Cara Smith, director of the Office of Statewide Pretrial Services, has noted that other jurisdictions have seen increases in electronic monitoring after implementing bail reforms, but said the agency would be “monitoring and making sure” orders for such monitoring comply with the law.
She also said the agency uses text reminders and has transportation assistance to help people remain in compliance by attending court dates.
Looking ahead to Monday, some who work in criminal courts said the looming change felt anticlimactic after a ramp up of more than two years, while others braced themselves for a learning curve.
“I think we’re ready to go,” Berlin said, noting the numerous preparation meetings.
Nixon also said the Cook County defense bar has had “nonstop” trainings” to prepare, but noted that everyone will be navigating a new system.
“I fully expect a wee bit of chaos on the first day,” she said.
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