January 13, 2022
In less than a year from this writing, money will no longer be a factor in pretrial release decisions pertaining to defendants accused of committing crimes in Illinois. The elimination of cash bail was one of the major reforms in a criminal justice omnibus bill signed into law by Governor Pritzker in February 2021, and will take effect on January 1, 2023. This change in policy and practice represents a historic and fundamental shift in the pretrial release system in Illinois. Instead of setting a dollar amount, judges will make determinations about whether to release someone charged with a crime based on the level of risk the person poses to the community or the risk of not appearing in court.
Pretrial release assessments based on risk are already used in Cook County and many other counties in Illinois and across the United States. Removing money as a factor in pretrial release decisions is supported by research, best practices and national principles on bail. Yet bail reform still has some opponents, including some law enforcement groups, and recently has been blamed by Chicago’s Mayor and police superintendent as a major factor in the large spike in crime seen in Chicago in 2021.
In recent press conferences on public safety, Mayor Lightfoot has contended that too many people charged with violent crimes are released pretrial to home electronic monitoring and should instead be detained in jail. She called on judges in Cook County bond court to hold people accused of violent crimes in jail rather than releasing them on electronic monitoring. The Cook County Chief Judge refused that request, saying it would violate the constitutional rights of a person to be considered innocent until proven guilty. In current practice, judges in Cook County Bond Court make pretrial determinations based on a number of factors including the nature of the charges, the defendant’s criminal history, prior instances of failure to appear and the defendant’s home and community information. They also receive a risk assessment score based on a tool called the Public Safety Assessment that calculates a person’s likelihood of failing to appear in court or committing another crime before trial.
The Mayor’s Office has not released any data connecting pretrial release and the increase in crime. The Cook County Sheriff disputed the claim that electronic monitoring is to blame for crime, stating at a recent webinar event that most people on the Sheriff’s electronic monitoring program are not committing new offenses.
Based on information publicly available in data dashboards produced by the Office of the Cook County Chief Judge, several conclusions can be drawn about the pretrial release decisions made in Cook County bond court and the public safety outcomes associated with those pretrial releases. The dashboards do not, however, answer questions specific to only those defendants ordered to electronic monitoring in Cook County, but they do provide a general landscape for all defendants released pretrial. (Electronic monitoring is discussed further below.) The following are a few key takeaways based on the most recent available data as of June 30, 2021:
- The majority of defendants appear for court and do not commit new crimes while on pretrial release. The dashboards show that 80.4% of people charged with felonies attend all of their scheduled court hearings and that 81.8% of those on pretrial release are not charged with new offenses while out on pretrial release.
- A very small percentage of criminal defendants commit new violent crimes while out on pretrial release. Of the 70,283 people charged with felonies and released pretrial between October 1, 2017 and June 30, 2021, 3.3% were charged with a new violent or person crime (murder, rape, robbery, aggravated assault, assault, battery, child neglect and other offenses against another person) while out on pretrial release.
- A larger percentage of criminal defendants commit non-violent crimes while on pretrial release. Approximately 15% of the 70,283 people charged with felonies and released pretrial between October 1, 2017 and June 30, 2021 were arrested for a new non-violent crime (drug, property, weapon possession and other charges) while out on release.
- The majority of people charged with violent crimes against another person are detained in jail, while only one quarter are ordered to electronic monitoring. As of June 30, 2021, 56.3% of the pretrial jail population (a total of 5,330 at that time) was charged with violent crimes. By comparison, 23.2% of the 3,491 people on electronic monitoring were charged with violent crimes. The majority of people on electronic monitoring were charged with non-violent weapon charges, most commonly unlawful possession of a firearm.
Another important takeaway comes from a report by Loyola University Chicago researchers—Dollars and Sense in Cook County—that examined public safety outcomes before and after Cook County instituted pretrial reforms in fall of 2017. The reforms were aimed at reducing pretrial detention in Cook County Jail due to bond amounts that defendants were unable to pay. Through General Order 18.8A, the Cook County Chief Judge directed bond court judges to maintain a presumption against requiring monetary bail in their release decisions, and to order the least restrictive conditions necessary to reasonably assure the appearance of the defendant a future court proceedings. The Chief Judge began publishing pretrial data following this policy change.
The Dollars and Sense study found that while the Cook County reforms led to an increase in the number of people released from bond court, they did not lead to any changes in Chicago crime rates. The research concluded that releasing more people pretrial as a result of bail reform had no effect on the level of new criminal activity committed by those released defendants: 17% of defendants out on release were charged with a new criminal offense both before and after the General Order; and 3% had a new violent criminal case filed both before and after implementation. The report also noted similar outcomes elsewhere: bail reforms in other jurisdictions including New Jersey, New York City and Philadelphia that led to more people being released from jail pretrial, but did not lead to increases in crime.
What the Research and Data Tell us About Electronic Monitoring:
While electronic monitoring is used as an alternative to incarceration, the research on its use in pretrial cases is limited and presents a mixed picture on whether electronic monitoring reduces failures to appear in court and new arrests. Some studies have shown that electronic monitoring may improve appearance rates in court, but also have found that this form of supervision increases technical violations (such as leaving the approved geographic area or failing to check in with a pretrial officer). Despite the lack of evidence that electronic monitoring is an effective form of supervision for preventing crime, electronic monitors have been used as a condition of pretrial release at rapidly growing rates across the U.S. They were first introduced in the 1980s as federal courts ordered states to reduce jail overcrowding.
The number of people on the Cook County Sheriff’s electronic monitoring program has grown significantly over the past decade, and even more so in the last two years due to the COVID-19 pandemic. As part of a federal consent decree filed in 2010 (United States v. Cook County, Illinois, No. 10-2946), the federal court authorized the Sheriff to release non-violent defendants from the jail onto home electronic monitoring in order to reduce overcrowding at the Cook County Jail. The number of defendants on the Sheriff’s electronic monitoring program more than tripled from a daily average of 523 in August 2011 to over 2,300 in 2016. The number of people on EM remained above 2,000 for the next several years. Then with the onset of COVID-19 in March 2020, the number of people on Sheriff’s electronic monitoring grew from 2,430 on March 9, 2020, the day Illinois Governor JB Pritzker declared a state of emergency, to 3,686 exactly a year later in March 2021. At the same time, the number of people detained in the jail decreased from a peak of more than 10,000 in August 2013 to approximately 5,700 in March 2020. By March 2021 the following year, the jail population had 5,549 detainees.
Even though electronic monitoring ultimately results in the release of a defendant from jail, it is a highly restrictive, requiring a person to remain in their home 24 hours per day, seven days per week. It may also be harmful to people’s lives, jobs and relationships. The Cook County Sheriff’s pretrial electronic monitoring program requires anyone who wants to leave their home for any reason to obtain authorization through a court order by a judge. This process can take days, and the request for movement is not always granted. If someone leaves their home without court-ordered authorization, they risk being rearrested and detained in jail.
Because electronic monitoring is so highly restrictive, it is considered to be appropriate only in cases when an individual presents a high level of risk and would otherwise be ineligible for release. It is not considered to be appropriate or effective in low-level, nonviolent cases. In New Jersey, which implemented pretrial reform successfully in 2017, criminal defendants may be ordered to electronic monitoring only in limited circumstances. Electronic monitoring in New Jersey is limited to cases when there is a victim, who must be a specific person with a known address (for purposes of identifying an exclusion zone).
The majority of pretrial defendants are not charged with new crimes while on electronic monitoring. A report by the Chicago Appleseed Center for Fair Courts found that 91% of people on electronic monitoring in Cook County between 2016 and 2020 were not re-arrested. Of the 9% who were re-arrested while on EM, 6.8% were for new crimes and approximately 2% were arrested for failing to appear in court, warrants or technical violations that do not constitute new crimes.
Electronic monitoring should not be used as a replacement for high money bond amounts. In current practice, judges across the United States use high dollar amounts as a barrier to a criminal defendant’s pretrial release. In the new cashless system that takes effect in Illinois next year, there may be a potential for overreliance on imposing home electronic monitoring in cases where judges feel reluctant to release a defendant. However, based on the mixed research and lack of evidence of the effectiveness or appropriateness of electronic monitoring programs, electronic monitoring orders should be limited to only those cases that warrant close monitoring. Instead, judges should use other options available, such as pretrial supervision (periodic check-ins with a pretrial officer), which have been linked to more positive outcomes on defendants’ court appearances and not committing new crimes while on release.