June 20, 2019
The Cook County Chief Judge’s Office recently released a report and accompanying data assessing the effectiveness of a 2017 reform of bond court practices. The report increases transparency and allows for additional public analysis of pretrial justice in Cook County. The analysis in turn raises concerns about racial disparities and additional questions about bond court outcomes.
General Order 18.8A, which became effective in September 2017, required Cook County bond court judges to maintain a presumption against requiring the defendant to pay money to achieve release. In cases where the judge determines that money bail is necessary, the judge must make a finding on the record that the amount is affordable to the defendant. The new report compares felony bond court data from the fifteen months prior to the General Order with the fifteen months following.
The report shows that the General Order has had a drastic impact on bond court outcomes. Defendants released on their own recognizance (I-Bonds) made up only 26% of initial bond orders prior to the General Order, but account for over half of orders now. The use of money bonds (including both D-bonds, which require a 10% deposit of the bail amount, and C-bonds, which require 100%) has fallen from 49% to 32% of initial orders. The median monetary bond amount fell from $5,000 to $1,000. Because more defendants are being released as they await trial, the general population of the jail has dropped from over 7,000 in September 2017 to under 5,500 today.
Criminal justice reform advocates agree that the General Order has had a significant impact and have used the Chief Judge’s report to rebut claims that released defendants are responsible for high levels of gun violence. The advocates and the Chief Judge have pointed to low re-offense rates of those released, especially for violent crime.
Along with the report, the Chief Judge’s Office released some of the underlying data, anonymously by defendant. The release is a significant additional step toward transparency about bond court and the jail population long advocated by the Civic Federation and others.
The report and the data allow for additional public analysis and discussion to improve the administration of justice. One important example is analysis of the effect of the General Order on racial disparities. Before the General Order, black defendants were less likely to receive I-bonds as an initial bond order than Hispanic or white defendants, and more likely to have to pay money or go on electronic monitoring (EM) as a condition of release. Black and Hispanic defendants were more likely than white defendants to be denied bail entirely. As a result of these disparities, black defendants achieved release prior to trial less frequently than defendants of other races.
Since the General Order, some of these disparities have lessened. While all defendants are more likely to be released prior to trial, the share of black defendants released increased by 14.7% while the rates for Hispanic and white defendants increased by 8.6% and 8.0%, respectively. However, black defendants still achieve release only 78.6% of the time versus 80.5% for all defendants.
The decrease in disparity in the release rate is partly due to more equal awarding of I-bonds. Before the General Order, black defendants received I-bonds in 23.1% of cases versus the average of 26.3%, a difference of 3.2 percentage points. Now, black defendants get I-bonds in 50.2% of cases, which is only 1.6 percentage points lower than the average of 51.8%.
Similarly, before the General Order black defendants had to pay money to achieve release in 51.0% of cases versus 49.0% for all defendants. After the General Order black defendants are slightly less likely to receive a money bond—31.0% versus 31.2% for all defendants.
However, for No Bail orders, the racial disparity appears to be increasing since the General Order. No Bail orders used to be rare, with judges apparently preferring to set D-bond amounts to detain most high-risk defendants. Since the General Order, No Bail has risen from 0.9% to 7.2% of all orders, a 670% increase. The increase for black defendants has been 713%, resulting in 8.1% of all black defendants being denied bail at the first hearing versus 6.0% for Hispanic and 4.0% for white defendants.
The increasing disparity in No Bail orders does not at first glance appear to be justified by the other available data. The percentage of black defendants charged with the severest classes of felonies, M and X, declined by 31.5% between the two time periods, a bigger drop than the average decline of 26.4%. While the percentage of black defendants charged with violent crime increased by 3.9% versus the average of 3.2%, the disparity does not appear large enough to justify the disparity in No Bail orders. Finally, the percentage of black defendants receiving a flag for violence or deemed to be most likely to reoffend if released using the Court’s Public Safety Assessment tool increased less than the percentage for all defendants.
The report’s data on electronic monitoring raise additional questions. Defendants ordered into the Cook County Sheriff’s EM program are required to stay home unless a judge or the Sheriff's Office has approved their outside activities; they wear an ankle bracelet to alert officials if they leave the house. Criminal justice advocates have criticized EM as an unduly restrictive release condition for many defendants.
According to the report, the number of EM orders decreased significantly. There were 2,990 EM orders in the 15 months after the General Order, or 9.8% of the total, compared with 6,783, or 23.8%, in the prior period. However, the total number of defendants in community corrections, which is mainly the EM program, remained relatively stable at an average of 2,159 participants per day after the General Order, compared with 2,226 in the prior period.
The discrepancy appears to be related, at least in part, to the way the Chief Judge’s Office counts EM orders. Only I-Bonds that include EM as a condition of release are counted as EM orders in the Chief Judge’s reports. D-Bond orders with EM are not included. But an increasing number of bond orders involve affordable D-Bond amounts in combination with EM, according to the Sheriff’s Office. In those cases, defendants who make the required payments and are released on EM would not show up in the Chief Judge’s EM statistics.
In response to questions from the Civic Federation, the Chief Judge’s Office said it is examining the reasons for the increasing racial disparities in No Bail orders and working on revising the way it accounts for EM orders.
Even after the General Order, it appears judges are issuing money bond orders that may not be affordable. About one-third of the defendants who received D-Bonds in the first quarter of 2019 remained in jail at the end of March, according to the Chief Judge’s most recent quarterly dashboard report.
However, available data do not show how long defendants stay in jail or on EM. Nor is information available on bond decisions by judge, which could show if there are major differences in the level and extent of money bond orders. Finally, the data are only categorized as being pre- or post-General Order; no more specific date information is available. The Chief Judge’s Office said it is working to add that information, which would allow analysts to track trends throughout the 30-month period.
The Sheriff’s Office, which has raised questions about the accuracy of the bond court reports, has said it wants the Chief Judge to release all of the underlying data used to compile the information.
Despite gaps in Cook County’s bond court information, a new report by the Coalition to End Money Bond suggests that Cook goes far beyond other Illinois counties in making data available. After public records requests were submitted to 40 of the State’s 102 counties, the organization said that Cook County appears to be the only one that tracks bond data in a systematic way. The requests were filed with county sheriffs, rather than with the courts or court clerks, because the Illinois Freedom of Information Act does not apply to the judicial system.
During the General Assembly’s spring session, legislation was introduced that would authorize the Illinois Criminal Justice Information Authority to collect and publish pretrial justice data from all Illinois counties. The bill has yet to advance out of committee, but the sponsor and others, including the Civic Federation, continue to urge its passage.