Bail reform advocates rally in front of the Leighton Criminal Courthouse in August 2021. Credit: Maya Dukmasova

With a light roster of 36 arrestees and a courtroom full of reporters, legal observers, and advocates (as well a sprinkling of defendants’ loved ones), Cook County’s central bond court yesterday eased into its first day of operation under a new directive: By order of Chief Judge Timothy Evans, judges are to consider a defendant’s financial circumstances when setting bail. In addition to rolling out the new procedure, Evans also created a new division of judges to handle bond court proceedings. 

Per Illinois law, judges are already supposed to consider a person’s “financial resources” when setting bail. But prior to Evans’s order, Cook County judges had no instructions on how exactly to go about determining a defendant’s ability to pay. As a result, the jail has swelled with people who are incarcerated simply because they can’t afford to pay their bond. As the Reader reported last year, defendants sometimes spend years in jail awaiting their day in court; studies have shown that those incarcerated before trial are more likely to plead guilty and less likely to be acquitted if they do make it to trial.

“As we continue our efforts to enhance the pretrial process in Cook County, this new division will play an important role in upholding the court’s focus on justice and fairness,” Evans said in a statement on September 15, as he announced the new roster of bond court judges. “All defendants are assumed innocent until proven guilty, and nobody should be held in jail simply because they cannot afford bail.”

The tenor of bond court on Monday was a marked departure from the impersonal, barely audible churn typical of courtroom 100 at 26th and California. Before proceedings began on his first day in bond court, judge Michael R. Clancy gave a warm welcome and carefully explained what would be happening. In an uncommon occurrence, the judge’s microphone was on and a speaker was turned toward the gallery. Over the next two hours, Clancy took an average of 3:29 minutes to listen to prosecutors’ allegations, mitigating information from defense attorneys (including the amount of money, if any, defendants could afford for bond), consider the risk assessment scores, and set the conditions of release. Considering that the average bond hearing in Cook County has ranged from 37 seconds to two minutes, Clancy’s more measured approached alone seemed like a step toward “justice and fairness.”

And yet, some people were still receiving bonds they couldn’t afford—as much as ten times higher than the amount they said they could pay. Most defendants were either released on their own recognizance (or I-bond), or got house arrest (electronic monitoring). But eight defendants were given detainer bonds (aka D-bonds) ranging from $5,000 to $100,000, of which 10 percent would have to be paid in order of them to be released.

Clancy gave one 19-year-old African-American man accused of armed robbery and aggravated robbery a $100,000 D-bond, even though his public defender said his only income is a $490 monthly disability check and that he had no money to post for bail. “This being an armed robbery, I find that an I-bond would be inappropriate, even with electronic monitoring,” Clancy replied.

In another case, Clancy gave a 34-year-old Latino man accused of driving on a suspended license a $50,000 D-bond even though the public defender said he could only put $500 toward his bond. “I do believe that low of a bond would deprecate the seriousness of the case,” Clancy said, adding that house arrest also wouldn’t be appropriate.

From the gallery, attorney Sharlyn Grace listened to these explanations with unease. Grace is a policy analyst with the Chicago Appleseed Fund for Justice and a cofounder of the Chicago Community Bond Fund, which has led community organizing efforts to end money bail in Illinois and is currently suing county officials for pretrial detention of the poor. To her, Clancy’s comments signaled that the defendants were not presumed to be innocent and money bail was still being imposed as punishment for prior criminal history and for crimes that were yet to be proven.

“If they can’t post that bond then they’re essentially sentenced to the jail,” Grace says. She emphasizes that, per Evans’s order, the question of whether or not to release a defendant is supposed to be separate from the conditions of release, such as (affordable) monetary bail to ensure a defendant’s return to court, revocation of driving privileges, house arrest, etc. In other words, a high D-bond isn’t supposed to be used to reflect the seriousness of allegations against a defendant. And if a person is considered dangerous to the community, he or she shouldn’t be released at all because, per state law and Evans’s order, no one should be able to buy a way out of detention if the judge believes that person truly poses a threat.

“Everyone is supposed to enjoy the presumption of innocence,” Grace says. “And the vast majority of people are supposed to be released. And if they’re not released the method of detaining them can’t be setting a high bond.”

Given that Monday was just the first day of bond hearings under Evans’s new order, and there are five new judges, along with Clancy, who will rotate on the bench, Grace is hopeful that bond-setting practices will improve. “I do think that the [office of the chief judge] is invested in the success of this order”, she says, but “it’s a long process to shift judicial culture.” She and other court watchers intend to return to bond court on a regular basis to observe and report on compliance.

“There is the opportunity for Cook County to be an important leader nationally on this issue if this is done well,” Grace says. “There’s also the potential for us to be a warning to other jurisdictions. It’s a big deal and we need to do it well because the stakes are very high for the people going through this system.”