Experts and Detainees Urge Reducing Use of Pretrial Detention in Cook County

On November 17, 2016, the Cook County Board of Commissioners held a public hearing on the use of monetary bond in the Cook County. Specifically, the hearing gathered evidence and testimony on the unconstitutionality of the current practice of detaining people pretrial simply as a result of their inability to pay bond and explored alternatives. The hearing was called for and chaired by Commissioner Jesus “Chuy” Garcia and featured a powerful panel of people who were formerly detained pretrial in Cook County Jail or in their homes due to electronic monitoring as well as gripping testimony by Alec Karakatsanis of Civil Rights Corps, Professor Cynthia Jones, Dr. Traci Schlesinger, and others. You can watch the entire hearing starting at minute 14 in the linked video.

This post presents highlights from testimonies presented at the hearing and supplemental research and sources for those interested in further investigation.

 

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Image created by Chicago Community Bond Fund

First, however, some brief context on the problem of pretrial incarceration and other restrictions on liberty. There are currently 7,999 individuals detained in Cook County Jail; 93% are detained pretrial (as in not convicted of any offense); 67% of pretrial detainees have a monetary bond they cannot pay; and 70% of all pretrial detainees are facing charges for non-violent offenses. An additional 2,200 people are on pretrial electronic monitoring, an “ankle monitor” system that results in home confinement and a host of other negative consequences for many.

Secondly, the term “risk” is used throughout the hearing and often in reference to the use of pretrial risk assessment tools. In the pretrial phase, “risk” generally refers to a defendant’s risk of failing to appear in court, risk of committing (or being charged with committing) a new crime, and the particular risk of committing a new violent crime. Cook County is currently using the Arnold Foundation’s Public Safety Assessment tool to evaluate all felony defendants in Central Bond Court. The Chicago Reader published a thoughtful article on the PSA’s promises and limitations last month.

Testimony 1: Sharone Mitchell, Program Director at the Illinois Justice Project

Mr. Mitchell highlighted basic facts regarding the dysfunction of our current system. For example, hearings in bond court last an average of 37 seconds; 93% of the detainees in Cook County Jail are there awaiting a trial; and 63% of the detainees in Cook County Jail are there because they cannot post bond. The practice of detaining people indefinitely because they cannot post bond flouts the purpose of Illinois’s bond statute and likely the U.S. Constitution. As a matter of practice, judges in Cook County do not inquire as to what amount the defendant or his family would actually be able to post. The result is that money, rather than actual safety concerns, has become the driver of who is in jail. Individual bond court judges are further quite inconsistent in both the bonds they set and whether their decisions align with the recommendations of the pretrial risk assessment tool.

Mr. Mitchell also was the first to note what ultimately became a major theme of the hearing: ensuring that reform efforts dramatically reduce pretrial detention in addition to eliminating the use of money bond. Mr. Mitchell described our current structure as one that creates a two separate justice systems: the first, in which an individual is free pretrial and able to fight their case and exercise their rights; and a second, in which an individual is incarcerated pretrial and is consequently coerced into abandoning many rights. In the latter system, incarcerated defendants are many times more likely to plead guilty or be found guilty at trial. Defendants incarcerated pretrial also receive longer sentences. The significant downstream impact of pretrial detention thus makes it a significant driving force in mass incarceration.

Mr. Mitchell referenced this recent study on pretrial detention in Cook County at several points.

Testimony 2: Hon. Truman Morrison, Superior Court Judge, Washington, D.C.

Judge Morrison has served on the bench for 37 years. He noted that D.C. has demonstrated that dysfunctional justice systems can change and that, now, D.C. is unique in that there is not one person in jail pretrial because that person cannot post a monetary bond. D.C. releases approximately 90% of all people arrested. If a defendant is identified as being too risky to release, the person is detained for that reason and not because they cannot post a certain amount of money. 98% of the 90% of defendants released in D.C. return to court and are not rearrested. Of the 2% who are rearrested, it is almost universally for nonviolent offenses. You can review the D.C. Pretrial Service Agency’s performance measures here.

Judge Morrison further noted the incredible level of support for D.C.’s pretrial services system among the judiciary in D.C.: “There is not one outlier judge in my system.”

Commissioner Suffredin asked Judge Morrison about the costs of pretrial supervision, which may be necessary, he argued, in place of detention or monetary bond. Judge Morrison said funding is required to provide pretrial services, but most releases on recognizance do not require many pretrial services or supervision—simple reminders have been shown to work just as well. “[You] don’t need all the bells and whistles,” Judge Morrison noted. In DC, 25% of those released have no supervision whatsoever; in Kentucky, that percentage is even higher. “You are going to have to spend some money, but when you do that, you get rich dividends: major cost savings by not using jail beds.“

Here is a recent Washington Post article discussing Judge Truman and the D.C. system.

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Professor Jones at the hearing

Testimony 3: Professor Cynthia Jones, American University Washington College of Law

Professor Jones’s testimony focused on the racial bias that results from the use of monetary bond. Black defendants are the least likely to be released on their own recognizance and also the least likely to be able to pay a monetary bond. Being Black increases the likelihood of being denied bail by 25%. The same figure for Latinos is 24%. Bail should be the great equalizer in a racially discriminatory criminal justice system because it is capable of compensating for differences in class and ability to gain release, but, in fact, the opposite is happening.

Professor Jones relayed a story of public defender representing an African American man in order to note the chasm between what judges may think is reasonable monetary bond versus what defendants and their families can afford. The public defender felt terrific that she had gotten the bail reduced to just $300; however, after going to the family of the defendant, she was told by the grief-stricken grandmother, “Sweetheart, there has never been $300 in this house at one time, ever.”

Professor Jones noted there are two “drivers” that explain the kind of bail system we have now: 1) expediency and 2) the lack of relevant information: “Nobody is checking relevant information on anybody.” Hearings are happening so quickly and with so little investigation that decisions are not well-informed. Secondly, many pretrial services departments are either insufficient or non-existent. Simply collecting telephone contact information for defendants in order to provide text message or call reminders can increase the appearance rate in court up to 90%. Despite proof that such simple and non-monetary steps are as effective or even more effective than monetary bonds, many jurisdictions, like Cook County, continue to rely on them out of habit.

Professor Jones is the founder of the Pretrial Racial Justice Initiative, a project of Pretrial Justice Institute.

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Panel of previously detained people at the hearing

Panel: Gloria Ramirez, Tyler Smith, and Lavette Mayes, People impacted by monetary bond and pretrial restrictions on liberty

(moderated by Chicago Community Bond Fund co-founder and Chicago Appleseed Fund for Justice Criminal Justice Fellow, Sharlyn Grace)

All three panelists had recent experience with monetary bond and experienced negative consequences because they could not pay their bond. Gloria Ramirez and Lavette Mayes were incarcerated in Cook County Jail (CCJ), and Tyler Smith was placed on electronic monitoring (EM) and confined to his home. Ms. Ramirez was given a $100,000 D-Bond (requiring payment of $10,000) despite having no prior arrests, being a diabetic, and having caretaking responsibilities for her grandchild who is in her custody. Ms. Ramirez spent several weeks in CCJ before her family was able to take out loans and borrow bond money to get her out. Lavette Mayes was given a $250,000 bond requiring payment of $25,000 despite the fact she also had no prior arrests, was working, and was the primary caretaker for her two children. Ms. Mayes spent 14 months in CCJ before her bond was reduced to $95,000 (requiring $9,500 be posted), and Chicago Community Bond Fund posted her bond.

Tyler Smith, on the other hand, was given a $25,000 D-Bond in lieu of EM, meaning that he had to post $2,500 in order to be removed from an ankle monitor requiring him to stay inside his home at all times unless given permission to leave by the Sheriff’s Office. Mr. Smith was working two jobs at the time of his arrest, including one as a supervisor. He had been the head of his household since his mid-teens and had no prior arrests. Due to the restrictions of EM, however, Mr. Smith lost his job at UPS, and he and his mother almost lost their housing.

Mr. Smith stressed that EM is in many ways as bad as being in jail. He described how could not even go to the grocery story or church without special permission, much less go to job interviews. When Mr. Smith did secure job interviews, he would call the Sheriff’s Office asking for permission to attend the interview. The Sheriff’s deputies then called each potential employer to verify the interview, scaring the employers off and making getting a job virtually impossible.

All three panelists told of horrifying conditions in Cook County Jail that they witnessed while detained pretrial. Ms. Ramirez could not get the food she needed to keep her diabetes under control or regular checks of her blood pressure. The costs of commissary and phone calls were additional financial burdens on families already strapped for resources. Ms. Ramirez also mentioned seeing bugs and rodents in her cell.

You can find more information about the Chicago Community Bond Fund on their website or Facebook page.

Testimony 4: Alec Karakatsanis, Civil Rights Corps

Alec Karakatsanis and the Civil Rights Corps have filed approximately 20 court challenges to the use of monetary bond across 20 jurisdictions, most recently here in Cook County. He noted that there are 450,000 individuals in jail on pretrial detention nationally—people being held in cages while presumed innocent—all without any evidence that it is doing society any good. In fact, the opposite is true: people held in pretrial detention are eventually 40% more likely to commit crimes in the future.

With respect to Cook County, Mr. Karakatsanis noted the large number of “dead days” caused by our current system. Dead days is Sheriff Dart’s name for time spent in Cook County Jail that exceed the length of the sentences imposed when people are finally convicted. Last year, there were 1,024 individuals who spent so much time in custody that once they were sentenced to state prison, they already had served every day of their prison sentence. On average, these individuals served two and a half months of extra time incarcerated.

Mr. Karakatsanis noted two dangers to look out for as Cook County explores alternatives to monetary bail are explored: (1) An overuse of supervision. Some jurisdictions, too fearful to simply let people go based on the research and a verified risk assessment, instead overburden individuals with needless and oppressive supervision that ultimately only ensures their failure and subsequent detention; and (2) An overuse of no-bond detention itself, simply incarcerating the same number of people (many of whom could be safely released) only without the monetary bonds they could not previously pay.

As many of the speakers before him also did, Mr. Karakatsanis noted that Cook County’s ultimate goal must be to reduce pretrial detention through and in combination with the elimination of monetary bail.

You can see Alec Karakatsanis address the American Bar Foundation on the same topics here.

Testimony 5: Amy Campanelli, Cook County Public Defender

As the Public Defender for Cook County, Amy Campanelli focused on the impact of the current system on her impoverished clients. Ms. Campanelli called out the existing lack of transparency in pretrial release decisions, pointing out that judges are hiding detention decisions behind money that defendants cannot pay, saying that if the decision “had integrity,” they would recognize that “a $25,000 Bond is a ‘No Bond’ decision for most of [her] clients.” Ms. Campanelli also noted that electronic monitoring is a form of custody, and that it is not working administratively or as an effective form of release for most of her clients.

Ms. Campanelli explained that the current bond statute has more than 30 criteria for judges to consider in a bond hearing—far too many, in her opinion. The absurdity that judges can consider more than 30 complex factors leads them instead to consider only their own instincts and biases: “When judges consider everything, they consider nothing.”

Finally, Ms. Campanelli noted that there is a built-in bias toward conviction for those who are locked-up pretrial: Only 50% of defendants out on bond are convicted, but 92% of defendants incarcerated pretrial are convicted. “Are you more guilty if you are locked up?,” Ms. Campanelli asked the crowd, “No, of course not.”

Earlier in the day at the press conference preceding the hearing, Ms. Campanelli also emphasized the considerable discretion bond court judges have to issue more I-Bonds under existing law. Barring a significant voluntary shift in judicial behavior, Ms. Campanelli suggested that Cook County has two ways to move forward: either Chief Judge Timothy Evans could issue an order to change the outcomes in bond court, or state legislative change will be needed.

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Dr. Schlesinger at the hearing

Dr. Traci Schlesinger, Associate Professor of Sociology at DePaul University

Dr. Schlesinger noted a number of things to keep in mind when planning for a system without monetary bond. First, out of any stage in the criminal justice system, the greatest racial discrimination occurs during the pretrial detention stage. Secondly, the impact of this discrimination is not just additive, it is multiplicative, meaning it results in increasing racial disparities as cases progress to resolution and sentencing. At present, all risk assessment instruments rely heavily on the defendant’s criminal record. Therefore, we must design and use risk assessment instruments that do not simply “launder” the racism inherent in previous points of contact with the criminal legal system such as arrests, which are known to be incredibly racially biased.

Secondly, Dr. Schlesinger warned against the use of too much pretrial supervision and even more insidious “pretrial treatment”—particularly if taking place in custody or through involuntary hospitalization. Empirically, it has been established that in-custody treatment is not effective and “treatment” in such a setting does not overcome the great harm of incarceration itself. By locating treatment in a jail or other secure facility, we begin to make destructive decisions under the mistaken assumption that we are helping by locking a person in a cage.

You can read some of Dr. Schlesinger’s work on pretrial release here.

You can watch and listen to the entire 3.5 hour hearing, including public comments, here.

Note: All photos used in this post were taken from Chicago Community Bond Fund’s twitter, @ChiBondFund.

 

 

 

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Upcoming Interview Series: Chicago Votes

Our partners at Soapbox Productions and Organizing have teamed up with Chicago Votes staff to tell the story of what it’s like to grow up in an over-policed neighborhood in Chicago. These young organizers shared their perspectives on police accountability, our public school system, community safety, Black Lives Matter, and why they’ve chosen to work toward getting young people registered to vote and involved in politics. They also shared some spoken word pieces, providing a look at how young people express themselves through art.

During National Voter Registration Day, Chicago Votes registered over 1000 people on college campuses across the city. It will be interesting to see what impact the youth vote will have on crucial races to the administration of justice. Both Cook County States Attorney and Illinois State Senate elections will take place on March 15th, 2016.  In 2012, 35.2% of registered voters ages 18-24 voted in the general election.

The complete footage is set to debut in the coming weeks, but for now please enjoy this sneak peek. Stay tuned for updates on this exciting partnership.

Cook County Justice Watch Speaks with Floyd Stafford

Recently, Cook County Justice Watch had the chance to speak with Floyd Stafford, future Legislative Coordinator for the Cook County Justice Advisory Council. Floyd is a co-founder of the Alumni Association and a criminal justice advocate. He spent several months in the Cook County Jail’s Pre-Release program, and brings a rare and much-needed perspective to this work. We spoke to Floyd about growing up on Chicago’s West Side, his experience in Cook County Jail and the work he hopes to do in his upcoming position. Floyd also provides insight on the challenges that formerly incarcerated people face upon release, and the work he has done and and continues to do challenging these barriers.

Changes Coming to CPD Stop and Frisk Policy

The standard Chicago Police Department process of data collection during civilian stops and frisks will change to comply with a new state law, SB 1304, signed into law on August 12, 2015 and taking effect by January 2016.

Updates to policy in accordance with the SB 1304 include:

  • Officers must document whether a stop resulted in a frisk and/or search and whether any contraband was found;
  • Officers must issue receipts containing their name and badge number to anyone detained and either frisked and/or searched; and
  • Stops resulting in tickets, summons, or arrests will be documented in the same centralized database as all other stops, finally making comparison and evaluation of efficacy possible.

In addition to the above changes that will impact all law enforcement agencies in the state, a new settlement between the ACLU of Illinois and the Chicago Police Department requires that stop and frisk data and training policies be submitted to the ACLU and a special monitor for review. The monitor, retired federal Magistrate judge Arlander Keys, will issue twice annual reports on CPD’s progress reducing the number of unconstitutional stops, frisks, and searches conducted by its officers.

Download and view the CPD’s current directive regarding contact cards here:  Chicago Police Contact Information System.

Below is an example of contact cards currently used by officers when a stop occurs.

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Cook County Justice Watch has also obtained a training document on vehicle stops and warrantless searches that was recently distributed to CPD officers. Download and view the document here: Vehicle Stops and Warrantless Searches

Below is a conclusion of what officers can and cannot do during lawful vehicle stops.

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The issue of police conduct during stops and searches has been the focus of community organizing in Chicago for quite some time, as detailed in a previous post by Cook County Justice Watch, Organizing in Chicago for Stop and Frisk Transparency. Below is a chart composed by We Charge Genocide which details the similarities and differences in the proposed STOP ACT, the ACLU agreement and SB 1304.

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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

 

A Letter to the Editor of The Chicago Sun Times : Sheriff Tom Dart’s Administrative Release Program

The following is a letter to the editor of the Chicago Sun Times regarding an article entitled Dart Wants Candy Thieves, Other Shoplifters and Trespassers Out Of His Jail.

On March 10th, Cook County Sheriff Tom Dart made a visit to Springfield to propose legislation requiring that judges dispose of shoplifting and trespassing cases within a month of an arrest or release the defendants on a non-cash bond or electronic monitoring until their trials. Since then he’s been in the media, including a nearly 20-minute spot on the Anderson Cooper 360, talking about issues with the Cook County justice system. It is refreshing to see the Sheriff moving to change the process in which low-level nonviolent cases are handled. The fact that so many individuals are held in jail simply because they cannot afford bail has been a point of tension for years in communities who are most affected by these practices. A city-wide grassroots movement called DecarcerateChi has been building around the demand that all individuals accused of nonviolent crimes be released without bail.

A protest organized by DecarcerateChi at the Cook County Administrative Building
A direct action organized by DecarcerateChi at the Cook County Administrative Building

It went unmentioned, however, that the Sheriff has the ability to release up to 1500 individuals from the jail under the Administrative Release Program approved in 2011, allowing for non-violent pretrial detainees with no history of violent offenses to be released on non-cash bonds or electronic monitoring. This order was intended to ease overcrowding of the jail, which is currently not overcrowded by definition. However a large influx of arrests or parole violations could flood the jail at any time. Currently Sheriff Dart has only released a total of 57 men and 28 women under this order. If he is concerned about people who do not belong in the jail taking up space there, why won’t he use this power to dramatically reduce the number of non-violent cases awaiting trial behind bars?

As for the proposed legislation, Sheriff Dart is on the right track, but while incremental policy changes may help to reduce jail population and save tax dollars in the short term, much more thorough revision needs to occur, including cooperation and a commitment to reduce jail population from all stakeholders including state’s attorney Anita Alvarez, whose office determines charges brought and therefore feeds the jail population.

Ruby Pinto is a leader with SOUL and a contributor to Cook County Justice Watch