Accelerated Release Isn’t Good Enough for People Who Should Never Have Been in Jail At All

In August 2015, the Accelerated Resolution Court Act created a pilot program in Cook County called the “Rocket Docket.” Developed and pushed by Sheriff Tom Dart, the law promised to release certain highly sympathetic prisoners from the Cook County Jail (“CCJ”) earlier than they would otherwise be released by capping their jail stays at 30 days. As originally designed, the Sheriff’s Office was to refer defendants charged with misdemeanor retail theft or criminal trespass to a special court if they remained in the jail longer than 3 days after their monetary bond had been set. (This was meant to ensure anyone with the means to bond out did so on their own.) The pilot program then required the special Rocket Docket court to resolve these low-level, nonviolent cases within 30 days or to release the defendants on their own recognizance or on electronic monitoring (“EM”). Ultimately, no separate court was established and eligible cases currently continue to make their way through the usual misdemeanor courtrooms. Sheriff Dart’s office simply alerts the State’s Attorney’s office, the defendant’s counsel of record, and the Presiding Judge of the Criminal Division (presently Judge Leroy Martin) after determining that a defendant may qualify for the Rocket Docket’s resolve or release requirements.

Sheriff Dart has been outspoken on the need to reduce CCJ’s population and stop jailing people who pose no threat to public safety. The Rocket Docket idea, however, only impacts a very small percentage of CCJ’s population. Dart’s own estimates predicted about 150-200 of the more than 8,000 people incarcerated in CCJ at any given time would be eligible for the program. With more than 70,000 annual admissions to CCJ, 200 impacted people amounts to less than a quarter of one percent of the admitted individuals. Eligibility is further reduced by the requirement that defendants not have certain prior convictions. Cara Smith, Dart’s Chief of Policy, reported in April of this year that only 13% of eligible prisoners were referred for the Rocket Docket pilot program, and fewer than that were actually released. That means as few as 26 people could have been referred through the pilot program for release, and fewer than that released.

Now, Sheriff Dart is trying to expand the Accelerated Resolution Court Act through HB 6190. The new bill expands the pool of eligible defendants to include those charged with certain traffic violations and class 4 felony violations of the Illinois Controlled Substances Act. The bill has already passed both houses of the legislature and is awaiting Governor Rauner’s signature.

The problems with the “Rocket Docket” as a solution for unnecessary pretrial detention, however, are not simply the miniscule number of eligible defendants or abysmally low referral rate. As a result, the pilot’s real limitations cannot be addressed simply by statutorily expanding the pool of eligible defendants. First and most importantly, 30 days is a horrifically long time to hold anyone in jail who is deemed appropriate for release. As a standard, it avoids none of the well-documented harms caused by even a few days in detention [PDF] such as increased recidivism, loss of jobs and housing, higher rates of conviction, and longer sentences. The easier and much simpler, evidence-based solution [PDF] would be to release such low-level offenders on personal recognizance bonds immediately instead of allowing judges to continue to set monetary bonds that will be overridden only after a defendant has spent 30 destructive and expensive days in detention.

CCJ beds.jpg
Hundreds of inmates sleep together on bunks in a large room of the Cook County Jail, Thursday, Sep. 5, 2013, in Chicago. (Alex Garcia/Chicago Tribune)

 

Secondly, the vast majority of misdemeanor retail theft and criminal trespass cases are already resolved in under 30 days, most often through dismissals or plea agreements. Rather than shortening the length of stay in Cook County Jail, establishing 30 days as a cut-off period for such low-level cases has in some instances worked to lengthen the defendant’s incarceration, the opposite of its design. When public defenders raise the issue of bond for eligible defendants and request release on a personal recognizance bond or EM, the assistant state’s attorneys in some courtrooms have been observed to cite the 30 day cut-off as still weeks out and reason to put off re-evaluating the money bond currently keeping the defendant incarcerated. Rather than create a norm of not incarcerating people charged with misdemeanors, the Accelerated Resolution Court Act has in part worked to normalize up to 30 days of incarceration for defendants charged with even these most harmless of offenses.

If the goal is to release these defendants who cannot pay their bonds, then there are also numerous court dates that occur earlier than 30 days in and that would provide much more natural points of re-evaluation for bond decisions, such as arraignment or preliminary hearings. In addition, the Rocket Docket’s narrow eligibility requirements further reinforce the idea that defendants who are not eligible should remain detained longer than 30 days–reinforcing a false division of “worthy” and “unworthy” defendants based simply on a short lists of current charges cross-referenced with past convictions. Such an oversimplified and thus politically appealing determination of who may be detained pre-trial for more than 30 days is not research-based. In fact, it flies in the face of studies that link unnecessary pretrial detention with increased recidivism and support the use of only interventions that match properly assessed risks and needs. These costs to the larger conversation about necessary criminal justice reform are quite simply not worth the benefit of releasing at most 26 people per year sooner than they might otherwise be released.Cook County Jail

Sheriff Dart, meanwhile, has been reaping the publicity benefits of the Rocket Docket and its proposed expansion. As a statutory intervention into jail populations, it is not designed to address the issues of mass incarceration, something Sheriff Dart has implied. Overall, the Rocket Docket legislation is poorly designed policy carrying the potential to serve far too few people to be worthwhile. While heartbreaking, the stories Dart shares with press–such as that of “D.E.” who spent 86 days in Cook County Jail for trespass–are outliers. These extreme cases should be addressed alongside the unnecessary and unjustifiable four day or two week jail stays requiring that all defendants with nonviolent charges be given personal recognizance bonds or some similarly broad standard. The public should demand good policy that pushes judges to rely increasingly on personal recognizance bonds instead of maintaining a system that allows money to determine pretrial incarceration. Additional policy changes occurring earlier on in a potential defendant’s contact with the criminal legal system such as alternatives to arrest and pre-prosecution diversion must also be explored if we are to truly decrease the strain on criminal courts and lessen case processing time.

Although the Rocket Docket makes a great soundbite for an ambitious politician, it is poor public policy. We can and must do much better if we are truly serious about reducing unnecessary pretrial detention.

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Racial Disparity Concerns for State’s Attorney Alvarez’ New Policy and Other Avenues of Reform

On Monday, April 20, Cook County State’s Attorney Anita Alvarez announced three changes in the way her office responds to drug crime. These changes, though neutral on their face, pose a great risk of increasing racial disparity in an already deeply unfair system. Below, we outline her new policy, our questions and concerns, and current pushes for decriminalization happening at the state level in Illinois.

State Attorney Alvarez’ new policy on drug crime:

  • Her office will no longer prosecute misdemeanor possession of marijuana under 30 grams for those who have had 2 or fewer citations or arrests on the matter beforehand;
  • All offenders charged with Class 4 felony possession of a controlled substance or possession of cannabis, except for those with significant violence in their criminal backgrounds, will be routed to an alternative prosecution program including the newly created Drug Deferred Prosecution Program (DDPP). These would include individuals possessing substances other than cannabis, such as heroin, cocaine, etc.
  • And the State’s Attorney’s Office will formalize an ongoing policy of not proceeding with charges against juvenile offenders for the possession of under 30 grams of cannabis and those who have fewer than three arrests or police contacts for similar charges. Instead, the State’s Attorney’s Office promises to work with the Chicago Police Department and community-based organizations to create and implement a juvenile-specific version of Seattle’s successful Law Enforcement Assisted Diversion, or LEAD, program.

These new policies come at a time of growing national awareness that responding to drug possession as a criminal rather than a public health problem is failed policy. Current practices have led to overcrowded prisons and jails, wasted resources that should be used toward higher enforcement priorities, lives impaired by a criminal record, and deepened racial divisions.

However, up until now, attempts at correcting this failed policy have only worsened racial disparities. . In 2012, the Chicago City Council decriminalized low levels of marijuana possession by issuing fines rather than criminal penalties.   But under existing state law, police can still issue arrests rather than tickets for such offenses, and, as noted in a report of Roosevelt University’s Illinois Consortium on Drug Policy, do so in the vast majority of cases. Furthermore, when the decision is made to arrest or issue a fine, it is made predominantly along racial lines. In short, Black Chicagoans have not seen the reduction in arrests that White Chicagoans have.

Concerns About Racial Disparity Under Alvarez’s New Policy

In Chicago, blacks make up only 33% of the population, and yet, 73 % of all arrests are of black people. More arrests lead to more prosecutions despite the fact that blacks and whites use illegal drugs at the same rate. Disproportionate contact with police and prosecutors based on race presents such a stark contrast, that you would think anyone suggesting policy changes would proceed with caution. (Tables on Arrests and Population by Race are included at the bottom of this post, with sources).

Now, the Cook County States’ Attorney has actually suggested decreasing certain penalties for the possession of marijuana in a manner that may further increase disproportionality. She says that when we look for people whose cases should be dismissed or ought to be offered treatment (the new marijuana and juvenile program proposals, respectively), we should look at how often they have been arrested. Thus automatically treatment and dismissal will be offered less often to Blacks and Latinos who on the whole get arrested more often despite similar rates of drug use. Though the number of arrests of Blacks and Latinos will go down the racial disparity between people of color and whites stands to widen. As whites are disproportionately offered treatment and dismissal, the prosecution of Blacks disproportionately increases. Thus a set of terrible outcomes stands to get worse.

We would ask the State’s Attorneys what the expected populations, by race, are expected to be affected by these new policies? And what systems are being put into place to ensure individuals being offered treatment are actually being clinically assessed for their need and being offered the right level of services?

State Level Decriminalization Is Moving Forward

State law may soon change. House Bill 218, introduced by State Representative Cassidy, (D- Chicago) has just passed the Illinois House and has passed the Criminal Law Committee of the Senate. It calls for replacing criminal penalties with civil fines for low level marijuana possession. The proposed legislation has a broad base of support, including the Illinois State’s Attorney’s Association, the Illinois State Bar Association, and the Office of Cook County State Sheriff Tom Dart.

Change begets tough questions and challenges. How will the Chicago Police Department respond to state, not just city, decriminalization of marijuana? Treatment and education services are already in short supply. Where will funding for the services to support alternatives to incarceration come from?  Can ways be found for units of government to collaborate in identifying and allocating the services that do exist? How will they insure that treatment goes to those who need it most?

It is promising that the Cook County State’s Attorney is citing the LEAD models of Seattle and Santa Fe. The first full-scale evaluation of LEAD, released last week by the University of Washington, found that that services rather than prison have helped to break the cycle of addiction, joblessness, and homelessness for program participants and reduced recidivism by nearly 60%. LEAD has established a national model for collaboration among law enforcement, human service agencies, and community organizations. The task now is effective implementation of such policies here.

Tables on Disproportionate Impact

2013 Census Bureau Population Estimate – City of Chicago

Total          2,719,000
Black              894,000 33%
Non-Black          1,824,000 67%

Source: http://quickfacts.census.gov/qfd/states/17/1714000.html

Street Stops by Race – City of Chicago (four month sample)

Stops % Stops Per 1000
Total 251,000   94
Black 181,000 72% 205
Non-Black 70,000 28% 39

Analysis of four month period May through August 2014

Source: ACLU-IL http://www.aclu-il.org/wp-content/uploads/2015/03/ACLU_StopandFrisk_6.pdf

2014 Arrests by Race – Chicago Police Department

  Arrests % Arrests per 1000
Total          129,000 48
Black            94,000 73% 106
Non-Black            35,000 27% 19

Source: Chicago Police Department

For comparison, the estimated arrest rate for the United States in 2012 was 39 arrests per 1,000 residents.

Source: http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/persons-arrested/persons-arrested

2014 Cook County Jail Population

  Admissions % Admissions per 1000
Total 65,129 12
Black            43,000 65% 33
Non-Black           23,000 35% 6

Source: Cook County Sheriff

African Americans make up 25% of Cook County’s 5.2 million residents

Individuals from the City of Chicago comprised 63% of jail admissions