Updated at 1:29 p.m. Aug. 6, 2019
Officials from Cook County and Chicago have been trading barbs lately on a topic that is important to both public safety and racial justice: bail reform. Who should have to pay bail to get out of jail? How much should they have to pay? Who should be held behind bars while they await their trial, no matter how much cash they can put up?
Most of the debate isn’t about the most serious crimes, like murder, or the smallest crimes, like retail theft. It’s about gun possession crimes and whether those caught illegally carrying a gun should be held until trial or allowed to go home.
And it’s a political fight over who will take the blame for gun violence. City officials, like Chicago Mayor Lori Lightfoot and Police Superintendent Eddie Johnson, point the finger at the county courts for releasing people on bail pretrial who they believe pose a threat and on Monday released a data portal that details bond for felony gun-related charges. Some county officials, like Cook County Board President Toni Prekwinkle, point toward the city’s dismal murder clearance rate and defend bail reform as necessary for fairness and justice.
Amidst the political maneuvering, it can be difficult to understand the facts — particularly since the terms are often imprecise. So WBEZ has prepared a list of basic questions and answers about bail in Cook County to help you navigate the conversation and keep the facts straight.
We start with the most basic questions like: What is bail? And how do judges decide who has to stay in jail? And then go a little deeper, exploring often misunderstood terms, like “unlawful use of weapons.”
What is bail?
When a person is charged with a crime, a judge has to decide if the person should be locked up while they await trial or if they can be released. In all cases, the person is presumed innocent. In Cook County, bail decisions generally fall into three different categories:
D-Bond: A judge can require a defendant to hand over money. If a defendant can’t (or won’t) put up money, they stay in jail. The money is intended to ensure they show up for court. If the defendant follows court directions they get the cash back at the end of the trial (minus fees).
I-Bonds: A judge can give a person an “I-bond,” meaning they are trusted to come back to court without having to put up cash.
No Bail: A judge can decide to hold an accused defendant because they are too dangerous to be in the community, or too likely to flee, while they await trial, and they are held in jail on a “no bond,” no matter how much cash they are able to pay.
What recent changes have been made to bail in Cook County?
In 2017, Timothy Evans, the chief judge overseeing the Cook County Court system, adopted an order that instructed judges to set affordable bail amounts. The idea was that if a person could be safely released on bail, they should not be held just because they’re poor. The order also made it clear that in order to hold a person in jail without bail, the court must determine the person is a “real and present threat” or is likely to skip court.
Police officials say criminals are not being held accountable because they are released on bail. Is that true?
After bail reform, a higher percentage of defendants have been allowed to go home while they await their trial without paying cash. When money is required for bail, those amounts are smaller. Some city officials argue it’s leading to a lack of accountability.
“If you have someone in custody for a felony gun charge, then I think there has to be a certainty for them that they’ll be held accountable for it. Paying a $100 bond is not it. I don’t know what that amount needs to be, but I know it needs to be higher than $100,” Johnson said.
But justice advocates argue that by law the person is presumed innocent before a trial, and bond cannot be a form of accountability or punishment. Instead, accountability comes with a sentence after conviction.
“The biggest misconception coming out of the [Chicago Police Department and Fraternal Order of Police] shop is that a person that is released from bond court is not being held ‘accountable.’ Your criminal case doesn’t end if you are released pretrial,” said Sharone Mitchell, director at the Illinois Justice Project, a justice advocacy organization.
How do Cook County judges decide who stays in jail/goes home?
Judges use tools called risk assessments to evaluate how likely a person is to be arrested for a new crime while out on bond and how likely they are to show up for their future court dates. There are different risk assessment tools, but the one used in Cook County is called the Public Safety Assessment (PSA).
The PSA tool considers multiple factors including whether a person had any prior convictions or had failed to appear in court in the past.
Overall, risk assessment tools are controversial for a number of reasons. But the current conversation in Chicago centers mostly around whether the PSA tool is the best one to use.
Lightfoot has said she supports eliminating the use of money in the bail system, but she’s said the PSA tool is leading courts to release people pretrial who should be held because they are a risk.
“It doesn’t count UUW [unlawful use of weapons] … which is a very common charge in Cook County. It doesn’t count that as a crime of violence, that’s obviously a problem,” Lightfoot said.
But UUW’s, which have been a point of contention during the bail debate, can be confusing, which brings us to the next question.
What is a UUW? Why does it matter for the bail debate?
UUW stands for unlawful use of weapons, but the word “use” can be deceiving in this context, because a UUW charge doesn’t involve firing a gun.
“UUW refers only to the act of possessing either a firearm or bullets without the legal authority to do so,” said Mitchell, director at the Illinois Justice Project. “If you are caught actually using a firearm, your underlying offense is very different: murder, unlawful discharge of a firearm, aggravated battery with a firearm, attempted murder, etc. These are clearly violent crimes, unlike UUW which is mere possession.”
The crux of the current Cook County bond fight largely comes down to whether people charged with gun possession crimes, like UUW’s, should be more regularly held in jail pretrial.
Justice advocates, like Mitchell, argue that in a high-crime city, many people will end up carrying a gun, even if they aren’t legally allowed. He says this is particularly true in Chicago where the vast majority of murders go unsolved by police, leaving people feeling as though they have to protect themselves and carry a firearm, even if they never use it.
“Remember there are way more people carrying guns, than shooting people with guns,” Mitchell said.
Mitchell argues keeping someone accused of a UUW in jail before his or her trial can have drastic consequences, like interrupting a person’s access to work, education and housing — consequences that could make them more inclined to engage in criminal activity. In other words, he’s arguing that the destabilization of communities and individuals caused by incarceration can negatively impact public safety in the long run.
City officials, however, argue that the courts have been too lenient in pretrial decisions about UUW’s, especially when it comes to repeat offenders.
“Carrying a gun leads to use of a gun. In simple terms, if we can reduce individuals from carrying illegal guns, then maybe we can reduce individuals from shooting,” said Anthony Guglielmi, a spokesperson for the Chicago Police Department.
What do officials mean when they say “violent offenders” or “gun crimes”? Why do those terms matter in the bail conversation?
When people talk about who should be held or released from jail while they await trial, you often hear terms like “gun crime” or “violent offender.” But these terms are imprecise, so can they be confusing.
For example, a gun crime can be anything from having a gun without a license to committing a drive-by shooting. And a violent offender may be someone convicted of multiple murders or someone who got in a fistfight at a bar five years ago.
“The lack of precision with these terms I believe limit their usefulness,” the Illinois Justice Project’s Sharone Mitchell said.
To better understand officials’ positions, it is worth looking at how they characterized arrests and bond decisions over the July 4, 2019 weekend.
According to city officials, during the Fourth of July weekend, Chicago Police made 76 felony weapons arrests. Eighteen were repeat gun offenders, and six of those were released on bond. According to city officials, the top charges for those six people were Unlawful Use of Weapons, Aggravated Unlawful Use of a Weapon and Armed Habitual Criminal.
All of those charges mean a person was accused of illegally possessing a gun (or other weapon), not firing it.
City officials slammed the county judges following the July 4 weekend and argued that these crimes inherently endanger the community and require more toughness from the courts.
“If the person that pulls the triggers on these weapons, they don’t make that decision when they get to that incident, that point in time. They make the decision when they leave home every day with that gun. Because if you didn’t leave home with it, then you couldn’t pull the trigger.” Johnson said at a police press conference following the July weekend.
Are judges releasing more people from jail since bail reform?
On its surface, this seems like a simple yes or no question — but it’s actually a little more messy than that.
The total number of people being held in jail while they await trial has significantly decreased since bond reform. Fifteen months after the bond reform order, the jail population was down by 16%.
However, according to a report from the chief judge’s office, judges are finding more defendants a risk to the community and holding them behind bars, no matter how much money they could pay in bond. The number of “no bail” orders increased eight fold since the bail reforms were implemented. In the 15 months before the judge’s order, 267 were held without bail. In the 15 months after the order, the number was 2,192.
In other words, money is playing a smaller role. Fewer people are being kept in jail because they can’t afford to pay bond. But more people are being held in jail because a judge decided that no matter what they could pay, the person should not be allowed to go home pretrial.
Is the city less safe since bond reform?
Bond reform led to a decrease in the number of people held in jail, but the reforms did not increase violent crime, according to data from the Chief Judge of Cook County.
The report examined how many people with felony charges released on bond were charged with a new crime while out on bond. It found that the percentage held steady after bail reform, with about 8 out of 10 people not being charged for a new crime.
And only 0.6% of defendants were charged with a new violent offense while on pretrial release.
“The small number of people who are rearrested are extremely unlikely to be arrested on charges involving violence. When given the chance, people released pretrial will succeed,’ said Sharlyn Grace, the executive director of the Chicago Community Bond Fund, a justice advocacy group.
Police officials, however, argue that their on-the-ground work has led them to a different conclusion.
“CPD and the City, we are living and breathing these cases every single day, and I don’t think the county is seeing them to the level we have. We have become the voice of the victim — and unfortunately that voice has been drowned out,” Guglielmi said.
City officials would not supply data on how many people they arrested for a violent crime were on bond for another violent crime, but released a data portal with some top line numbers on Monday.
Who ultimately has the power to make changes about bond?
Cook County Chief Judge Timothy Evans can issue orders to change or update his instructions to judges, like he did in 2017. However, these orders can be undone by any future chief judges. More permanent reforms would likely be from state legislators. There are currently efforts underway to pass laws that would eliminate the use of cash bail in the state.
City officials, like Lightfoot and Johnson, don’t actually oversee bail policies. However, they do have the power of the bully pulpit. Chicago officials have historically been able to exert lobbying pressure in Springfield and could do that on the bail topic.
Any local bail policies or law, would have to be in line with the U.S. Constitution. Grace, with the advocacy organization the Chicago Community Bond Fund, argues that efforts to hold more people in jail pretrial could run afoul of constitutional law.
“The U.S. Supreme Court has clarified that pretrial liberty is the norm and pretrial incarceration should be rare. The government must meet a very high standard before it can take away someone’s freedom when they have not been convicted of a crime,” Grace said.
Shannon Heffernan is a criminal justice reporter at WBEZ, follow her at @shannon_h. Illustrations are by Paula Friedrich, WBEZ’s interactive producer. You can follow her on Twitter @pauliebe.