The Inhumanity of the American Bail System
On the afternoon of June 4, 2016, a pleasant Chicago Saturday, Carmelita Woods was the last family member to come out of Cook County Central Bond Court. Her daughter, Bakirah, had been arrested the night before and had been the last person at bond court to get a hearing that day. The hearing had lasted ten seconds. No public defender had been present for the hearing.
Bakirah remained detained for six days. Her six days in custody, she told me, was the most traumatic experience of her life. And the major problem with her bond court hearings, she said, was that she could not hear or understand anything.
“Nobody explains anything,” Bakirah says. “I hear my name called, I come out, somebody says a few words, and then somebody shoves me to the back and that’s it. You get back in there, there’s a hundred women asking each other what the judge said and what the words meant. … We’re like roaches.
“How is there any justice in bond court?”
BOND COURT IS THE first court where one gets a hearing after an arrest. The hearing is intended to decide bond, otherwise known as bail: the amount of money a person needs to post to be released before their trial. In Cook County at least, it is a bewildering process. In the cavernous halls of the George N. Leighton Criminal Courthouse, confused and worried family members, predominantly African American or Hispanic, are a common sight. Many sob in a corner, worried sick that the bail amount decided will be too onerous. By far the most common complaint is that the hearing went by so fast that they didn’t even catch what the bond decision was.
Bond court and pretrial detention in Cook County have long been controversial. President Obama’s Department of Justice essentially took the position that holding the indigent before a trial because they can’t afford bail is unconstitutional. But in Cook County, the vast majority of people held in Cook County Jail—the largest single-site jail in the country—are those held pretrial, largely because they are unable to post bail. This is true nationally as well, but according to Cook County Justice Watch, in early October 2015, fully 95 percent of inmates in Cook County Jail were pretrial. The national average was 60 percent.
Recently, following the introduction of legislation to prohibit the use of cash bail in Illinois, the Cook County State’s Attorney Kim Foxx agreed to release detainees held for nonviolent offenses if they could not pay $1,000 for bail. The move, however, affects only a few dozen of the 7,400 inmates in Cook County Jail.
When speaking to critics of bond court, the phrase heard most often is “assembly line.” On my first visit to bond court, it became obvious why. “Assembly line” recognizes a central characteristic of bond court: The entire process that allows so many inmates to remain in jail even before their trial hinges on the few seconds they get in front of the judge at their bond hearing. Across ten bond court–watching sessions and 276 hearings that I observed over three months, those few seconds began to fit a clear trend. Across all judges observed, the slim minority of defendants with private attorneys got an average of 166 seconds in front of a judge. By contrast, the vast majority of people with public defenders got an average of a mere 22 seconds. When I informed Cara Smith, a representative of Cook County Sheriff Tom Dart, about my findings, she agreed that despite recent changes supposed to improve the bond court system, defendants still got far too little time in front of judges.
The difference between the quality and duration of conversation between judges and private attorneys and those between judges and public defenders is glaring. Private attorneys often represent their clients with full-bodied defenses, vigorously and consistently calling their guilt into question. When a public defender speaks, on the other hand, in the vast majority of cases, he or she mentions solely the defendant’s age, number of children (if any), whether they went to high school or college, and where they work. A bonus second is granted if the defendant is a “lifelong resident of Chicago.”
As has been noted for years, the process also depends heavily on which judge is presiding over the courtroom that day.
Judges render predominantly three types of bond decision: a cash bail where the defendant must post 10 percent of the amount decided (by far the most common); a non-cash bond where a defendant is released without needing to pay bail; or a release with electronic monitoring, an ankle bracelet amounting to house arrest that can also be removed by posting a set amount of money. But because there are no mandatory guidelines specifying what bond is appropriate for which offense, each judge has complete discretion—resulting in large discrepancies among judges over cash bonds or non-cash bonds, the bond amount set, and (especially pertinently nowadays) how often they appeal to a new risk assessment tool.
IN THE FALL OF 2013, after much publicity about overcrowding in Cook County Jail as the average daily population exceeded 10,000, as well as calls for change from Sheriff Dart and Cook County Board President Toni Preckwinkle, the Illinois Supreme Court conducted an audit of Cook County bond court with a particular focus on “pretrial services,” which provide a “risk assessment” that a judge can take into consideration when issuing a bond decision.
The Supreme Court report was particularly scathing. It acknowledged the disparities between judges and concluded that “in practice, [risk assessment] has become largely aspirational.”
Since then, a highly lauded new risk assessment tool, the Public Safety Assessment (PSA), recommended by the court’s report, has been implemented. The purpose, proponents argue, is to identify defendants who pose little or no threat to public safety and thereby provide judges with more information on which to base their decisions.
The PSA, a tool created by the Arnold Foundation, has been applied in at least 29 jurisdictions. It considers “risk factors”—demographics, current offense, criminal history, substance use, mental health, education, employment, residence, and community ties—and determines two scores on a six-point scale. The scores indicate how likely a person is to fail to appear in court, and how likely that person is to engage in new criminal activity. The PSA has been implemented in jurisdictions as broad as the entire states of Arizona, Kentucky, and New Jersey, as well as the cities of Chicago, Phoenix, and Charlotte.
In Cook County, it was welcomed heartily. In February of last year, the Community Renewal Society, a Chicago-based faith-based organization that works on issues of poverty and racism, released a report that concluded that in 2015, the PSA was “being used to assess the risk of the vast majority of all defendants that go through Cook County Central Bond Court,” despite the fact that full implementation of the PSA wasn’t to go into effect until March 21, 2016. However, following reports that tools like the PSA can employ racially biased software, questions emerged.
What, then, has the PSA changed in Cook County?
After observing five of the six rotating judges who conduct bail hearings, it appears not much. Only one judge—Peggy Chiampas—actively seemed to have read PSA reports, referring to them in almost all bond hearings (with the exception of those for defendants from the Department of Corrections: a sizable proportion of defendants to whom pretrial services apparently does not have access).
When the other judges presided, however, any mention or consideration of the PSA scores remained absent from bond court proceedings, nor were its recommendations seemingly taken into account.
Obtained through a Freedom of Information Act request, a report by the Sheriff’s Justice Institute concluded the same thing. The report noted that in more than 1,574 cases between early February and late March 2016, “collectively judges rarely administer[ed] the … recommended monitoring level” advised by the PSA.
The report also acknowledged the enormous differences in the ways defendants with private attorneys are treated in comparison with defendants with public defenders. Regarding an unidentified judge, the report stated, “In Judge B’s courtroom when a defendant was represented by private attorney and the defense explicitly stated the dollar amount their defendant could post, that bond amount stated was granted 70 percent of the time.”
“When a defendant was represented by a [public defender] and the defense explicitly stated the dollar amount, the bond amount stated was granted 1 percent of the time.”
WITH JUDGES RARELY referring to the PSA, has anything changed at all? Some, including the Community Renewal Society, claim that there has been a steep increase in the proportion of defendants receiving non-cash bonds. According to its report, in 2015, 61 percent of defendants received non-cash bonds, compared with 20 percent in 2011.
The sheriff’s office disputes those numbers. “Our information is not that there’s been a tremendous increase in [non-cash bonds],” Cara Smith tells me, although there has been “a tremendous increase in the use of electronic monitoring.”
Recent data from the chief judge’s office supports her assessment. Just in the first five months of 2016, the total percentage of defendants released on non-cash bonds was 24.4 percent—decidedly not a steep increase from the 20 percent in 2011—while 26.9 percent were released on electronic monitoring. But by far, most still got cash bonds: 44 percent.
Many dispute that the increase in electronic monitoring is a step forward in the administration of justice. Defendants and their family members often criticize it harshly. Sharlyn Grace, a co-founder of the Chicago Community Bond Fund, a revolving fund that posts bond for people charged with crimes in Cook County, argues that electronic monitoring merely replicates the financial incentives of the cash bond.
One of the people for whom the fund recently posted bond, Grace said, had an electronic monitoring bond that required the payment of $25,000 if he ventured outside the perimeter of his home. “He was working two jobs and then he got electronic monitoring. The conditions were so onerous that he was let go of both his jobs. And while on electronic monitoring, he didn’t have movement for any social activity—like attend church, be a member of his community, or be in a position where he could be rehabilitated.”
Ali Abid, formerly of the Chicago Appleseed Fund for Justice, a legal advocacy group that argues that bond discriminates on the basis of financial means by detaining only the indigent, tells me that oftentimes people on electronic monitoring don’t fully understand the terms and conditions they must observe, making it all too easy to violate them. “And if you violate the terms of electronic monitoring, that’s a Class 3 felony,” he said. “Sometimes, paying $200 for bond is easier for people than electronic monitoring.”
THE SUNDAY AFTER Bakirah Woods’s first hearing, Tyjuan Coleman had his bond court hearing in Judge Chiampas’s courtroom. Coleman, unlike the vast majority of defendants on any given day, had a private attorney. Chiampas, the only judge I have observed to do this, asked Coleman’s family to stand and asked them how much they could post. They replied $2,000. She then set the bond at $20,000. The $2,000 was sufficient to ensure Coleman’s release.
I met with Chiampas two days after first observing her. I asked her about the stark difference between her and her fellow judges in how often she used the PSA tool. “I can’t speak for all judges, but it is one factor I consider among many and it is an important one,” she said. “I take the PSA tool into consideration in every case.”
How did she feel about the massive variation among judges? What could be done to standardize the wildly inconsistent bond amounts? “Every judge is individual and makes decisions based on the cases in front of them,” she replied. “Discretion lies with each individual judge.”
When I informed Chiampas that people with private attorneys seemed to get more time than people with public defenders, she disagreed. “Their cases are not treated any differently. Defendants do not get mere seconds in front of a judge. It is on a case-by-case basis.”
But over four visits to Chiampas’s courtroom hearings (17 defendants with private attorneys and 97 with public defenders), the average time for defendants with private attorneys was 150 seconds. The average time for defendants with public defenders was 25 seconds. Further, despite her heavy emphasis on the PSA, Chiampas tended to mete out more cash bond decisions than her fellow judges.
Thus, a troubling conclusion: Even with the use of the brand-new validated PSA, little seems to have changed with the state of pretrial detention in Cook County.
IN THE PSA LARGELY fails to reduce pretrial detentions, that is no small matter. A wealth of research has demonstrated that pretrial detention actually creates convictions by vastly increasing the incidence of guilty pleas. According to a 2012 New York City Criminal Justice Agency report, the more days that arrestees are detained, the more likely they are to plead guilty to their charge. Pretrial detention was the strongest single predictor of conviction. Another study, published in August by the National Bureau of Economic Research, found the same link between pretrial detention and convictions.
That the bail system is counterproductive is not news. In 2015, Nick Pinto wrote that “the open secret is that … bail is the grease that keeps the gears of an overburdened system turning. By encouraging poor defendants to plead guilty, bail keeps the system afloat.”
For Amy Campanelli, head of the Cook County Public Defender’s office, the entire concept of cash bond is the problem. “Cash bond is punitive towards the poor. Bond is not supposed to be punitive,” she says. “It’s supposed to make sure the person comes back to court, and to protect the public.”
THE DAY OF A HIGH-profile bond hearing for Shaquille O’Neal (not the basketball legend), Chiampas was presiding again.
Earlier that week, a video had surfaced online of 23-year-old O’Neal being tackled by Chicago Police Department officers. It showed a CPD officer stomping on O’Neal’s head until he was knocked unconscious. O’Neal was then taken to the hospital. The next day, about 100 protesters marched outside the CPD headquarters. O’Neal was released without charges, but re-arrested two days later, charged with aggravated battery to a police officer, aggravated battery by strangulation, and drug possession.
It was a combative hearing. O’Neal’s attorney made a comprehensive defense: He argued that O’Neal had been arrested on trumped-up charges just two days after being released, and that he was Tased by the police in addition to being stomped on. The hearing lasted over half an hour. Bond was set at $1 million for a first charge and $150,000 for a second.
After the long and exhausting hearing, the felony cases for people with public defenders began, and the rapid pace, the familiar beat of bond court, began to return. The hearings grew progressively shorter. Thirty-seven seconds. Twenty-five seconds. Fifteen seconds. Five seconds. I thought back to Amy Campanelli questioning the purpose of bond. She had asked me whether a $25,000 bond was really just to protect the public, if all one needs to post is $2,500.
“Or, is it just penalizing someone who’s poor?”