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On June 9, 2017, Governor Rauner signed SB 2034 into law. SB 2034 covers two distinct areas of criminal law: the state RICO law and bail. First, effective immediately, it extends state RICO Act (“Illinois Street Gang And Racketeer Influenced And Corrupt Organizations Law”) for an additional 5 years.[1] Secondly and most importantly, it implements several changes to Illinois bail law effective January 1, 2018.

While positive, SB 2034 is merely the first step toward truly comprehensive bail reform in Illinois. Existing Illinois law urged judges to use non-monetary means of pretrial release[2] and ordered that any monetary bonds imposed be “not oppressive” and “considerate of the financial ability of the accused.”[3] Despite these existing protections, the Cook County Jail population remains almost exclusively pretrial detainees, the majority incarcerated only because they cannot pay a monetary bond.[4]

Unfortunately, SB 2034 does not place hard limitations on the use of monetary bond; it merely makes recommendations. Without concrete limitations on the use of monetary bond or specific evidentiary standards for bond hearings, it is unlikely that significantly more people will be released without having to pay money or significantly fewer people will be detained because they cannot. As a result, SB 2034 does not appear poised to have a meaningful impact on the population of Cook County Jail.

Still, there is reason to celebrate:

Right to Counsel at Bail Hearings

It is unquestionably positive to enshrine the right to counsel at bail hearings, including access to the public defender, in Illinois law. The right to counsel at bail hearings is not clearly established under the Sixth Amendment,[5] which makes creation of a statutory right valuable. While Cook County and many other counties already provide public defenders to people in bond hearings, we hope this creates positive change elsewhere in Illinois.

Requirement that Conditions of Release be “Least Restrictive Possible”

In addition, SB 2034 requires judges to use “the least restrictive conditions or combination of conditions necessary to reasonably assure the appearance of the defendant for further court proceedings and protect the integrity of the judicial proceedings from a specific threat to a witness or participant.”[6] This “least restrictive conditions language is both new and essential to the protection of pretrial liberty as risk assessment tools, pretrial services, and cautious judges embark on increasing rates of pretrial release in Illinois.

Additional analysis of SB 2034

Mandatory Re-hearings for People Accused of Some Crimes

Under SB 2034, people charged with “non-violent” misdemeanors and certain Class 3 and 4 felonies (primarily retail theft and drug possession) who were initially given monetary bonds will be entitled to a review of their bond if they have not paid it within seven days. This second hearing, however, does not guarantee release and is merely permissive.[7] SB 2034 does not create a requirement that judges conduct an ability to pay determination at any stage, that judges set monetary bonds only in amounts people can pay, or that no one is incarcerated pretrial simply due to inability to pay. These are all measures that have been taken in other states and been found to virtually eliminate the use of money bond.

As of February, 2017, all people charged with misdemeanors and Class 3 and 4 felonies made up slightly less than 30% of people in Cook County Jail. Many of those nearly 2,000 people, however, may be ineligible for even a rehearing or credit due to their offense being consider “violent.” Many others charged with drug offenses or nonviolent property crimes are charged with felonies of a higher class, and also will not benefit from a re-hearing or daily credit towards bond.

People accused of all other crimes will not be entitled to these automatic review hearings and will not receive a daily credit toward their bond amounts.

Statewide Risk Assessment Tool

SB 2034 allows the Illinois Supreme Court to establish a statewide pretrial risk assessment tool, but does not require it.[8] The Administrative Office of the Illinois Courts, however, has already indicated its support for pretrial risk assessment and was expected to implement a statewide tool as part of Illinois’s participation in the 3 Days Count Campaign.[9]

Credit Toward Money Bond for People Accused of Some Crimes

People charged with the “nonviolent” misdemeanors and class 3 and 4 felonies also receive a $30/day credit toward their monetary bond for each day they are incarcerated pretrial. It is currently unclear whether the $30/day will be deducted from the 10% real cash needed to post bond or from the full D-Bond amount.

Again, there are simpler solutions that would prevent pretrial detention solely based on inability to pay and which would be more effective than a credit at ensuring pretrial release. If judges were required to conduct hearings at which they determined what amount of money defendants could pay and then set bond in that amount, a credit system would not be necessary.

Furthermore, fewer than 20% of people incarcerated in Cook County Jail have bonds requiring payment of $5,000 or less. Assuming the $30 credit goes toward the cash amount needed, it would take a defendant with a $5,000 D-Bond 167 days in Cook County Jail to earn their release through this credit system. At the same time, the county will have spent approximately $23,881.00 incarcerating this hypothetical person accused of a nonviolent crime.[10] Incarcerating this group of people while giving them credits per day instead of releasing them amounts to a loss of $113/day for Cook County.

Finally, there is no reason why the credit should not apply to people accused of other crimes who are also being incarcerated only for failure to pay.

Presumption Against Money Bond

The addition of more language discouraging the use of monetary bond is always a positive development in Illinois law.[11] However, creation of a presumption in favor of non-monetary conditions of release is not strong enough on its own to overcome the judicial reliance on money bond that is so deeply embedded in our pretrial justice system. Nothing in the new language will prevent judges from continuing to use monetary bonds in exactly the way they do now. As explored above, this new language is in some ways a rephrasing of our existing law, which discourages the use of money bonds. The additional language may provide a foothold on which defense counsel can argue for different results, but a concerted and sustained effort on this front was also possible under current law.

In Closing

SB 2034 will not stop the use of monetary bond in Illinois—not even for people charged with nonviolent misdemeanors. As it does now, access to money will continue to play a significant role in determining who is released and who is incarcerated pending trial. Moving forward, we need statewide collection and dissemination of data around pretrial decisions to enable accurate review of our current bond system. Vigilant community, advocate, and system oversight is needed to change judicial behavior and move us closer to the spirit of Illinois bail law. And of course, we must work to codify a bond system that does not rely on access to money and preserves pretrial liberty to the greatest extent possible. SB 2034 is just the first step along a long road toward transformative bail reform in Illinois.

[1] 720 ILCS 5/33G-9.

[2] In discussing “Release on own recognizance,” current Illinois law states, “This Section shall be liberally construed to effectuate the purpose of relying upon contempt of court proceedings or criminal sanctions instead of financial loss to assure the appearance of the defendant, … Monetary bail should be set only when it is determined that no other conditions of release will reasonably assure the defendant’s appearance in court, that the defendant does not present a danger to any person or the community and that the defendant will comply with all conditions of bond.” (Emphasis added). 725 ILCS 5/110-2.

[3] 725 ILCS 5/110-5(b)(2-3).

[4] On average, 95% of prisoners in Cook County Jail are pretrial and thus presumed innocent under the law. Of the pretrial population, more than 60% have monetary bonds that they cannot afford to pay.

[5] “Unanswered by the United States Supreme Court is whether the Sixth Amendment to the United States Constitution mandates a right to an appointed lawyer at bail hearings.” Alexander Bunin, “The Constitutional Right to Counsel at Bail Hearings,” in Criminal Justice (magazine), Criminal Justice Section of the American Bar Association. Available at: https://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/v31/cjspring2016_BUNIN.authcheckdam.pdf.

[6] 725 ILCS 5/110-5(a-5).

[7] “The court may reconsider conditions of release for any other person whose inability to post monetary bail is the sole reason for continued incarceration, including a person in custody for a Category A offense” (Emphasis added). 725 ILCS 5/110-6(a-5).

[8] 725 ILCS 5/110-6.4.

[9] Mike Tardy, Director of the Administrative Office of Illinois Courts has said, “The Illinois Judicial Branch has been working to transform pretrial justice statewide by applying a validated risk-based framework to assist in bond decisions. Illinois has been providing specialized pretrial supervision training to enhance pretrial officers’ skills and competencies and is currently piloting the evidence-based risk assessment tool – the PSA – in Cook, Kane and McLean counties.” Available at: http://www.staterepcarolammons.com/news/2016/10/26/illinois-coalition-joins-national-effort-to-improve-pretrial-justice.

[10] Cost of incarceration in Cook County Jail calculated at $143 per day. See http://humantollofjail.vera.org/the-massive-jail-that-doubles-as-chicagos-largest-mental-health-facility/.

[11] “There shall be a presumption that any conditions of release imposed shall be non-monetary in nature…” 725 ILCS 5/110-5(a-5).