Illinois Commits to Changing Bail Practices That Keep People Jailed For Being Poor

Amid a nationwide series of civil rights lawsuits challenging what criminal justice groups call modern-day debtor’s prisons, Illinois state officials announced Thursday that the state will work toward overhauling its jail practices over the next four years.

Illinois officials and the Pretrial Justice Institute, a criminal justice advocacy group, said Wednesday that the state is joining the institute’s national 3DaysCount campaign, which urges states to reform their practices for jailing defendants prior to trial.

Specifically, the campaign works with states to reduce the severity of some low-level offenses and adopt risk-assessment tools to better determine which defendants can be safely released, rather than kept in jail to await trial. Illinois already has a pilot program using new risk-assessment tools in three counties, and the new push will include all three branches of the state government.

The announcement comes on the heels of a class-action civil rights lawsuit filed this month against Cook County that alleges the county’s bail system is unconstitutional and traps poor defendants in jail simply becuase of their inability pay.

The two lead plaintiffs in the class-action lawsuit, Zachary Robinson and Michael Lewis, were both jailed for their inability to make bail after being arrested on theft charges. Illinois requires a 10 percent deposit on bonds, and neither could afford the $1,000 and $5,000 bail payments, respectively. According to the lawsuit, Robinson has been in jail since January and lost his minimum wage job. Lewis, who is a caretaker for his 72-year-old grandmother, has been in jail since the beginning of October.

“Every day, thousands of human beings in Cook County, each presumed innocent as a matter of law, remain in jail for the duration of their case simply because they cannot afford to pay a monetary amount set without relations to their ability to pay,” the lawsuit, filed by the group Civil Rights Corps, says. “The large and disproportionate majority of these persons are African Americans.”

Since the national debate on policing that erupted after the police shooting of Michael Brown in Ferguson, Missouri, investigations have revealed how some cities and counties raise significant amounts of their revenue through the punitive enforcement of minor fines and code violations. Numerous lawsuits have been filed over the past 16 months—including in Georgia, Mississippi, Massachusetts, Alabama, Texas, Missouri, and Louisiana—alleging that cities and counties are essentially operating unconstitutional debtors’ prisons for those who can’t afford to pay.

The name of the 3DaysCount campaign, says Cherise Fanno Burdeen, the CEO of the Pretrial Justice Institute, comes from research that shows even three days in jail can negatively impact a defendant’s job, housing, and family situation.

“After only three days in jail, low-risk defendants will come out higher risk,” Burdeen says. “We destabilize them.”

Illinois state representative Carol Ammons says the state courts need to move toward a risk-assessment program for defendants awaiting trial “that is validated and evidence based,” rather than simply on whether one can afford bail.

“People that are not high-risk are sitting in county jail losing their jobs, homes, and in some cases and their own health and family are put at risk,” Ammon says. “It doesn’t improve safety, because if I have enough resources I can bond out. It doesn’t mean I’m safer. That’s the system we want to get rid of.”

In an August amicus brief to the 11th Circuit Court of Appeals on behalf of a mentally ill Georgia man who was jailed for six days when he couldn’t afford to post bail, the Justice Department said bail schemes that don’t consider an indigent defendant’s ability to pay violate the 14th Amendment’s equal protection clause and “are not only unconstitutional, but they also constitute bad public policy.”

Earlier this year, the Justice Department also released a “dear colleague” letter on the illegal enforcement of fines and fees warning municipalities that “courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”

Opposing these lawsuits and reform efforts is the American Bail Coalition, a trade group representing bail bondsmen. In an amicus brief in the Georgia case on behalf of the ABC, former U.S. Solicitor General Paul Clement wrote that “bail is a liberty-promoting institution as old as the republic.”

“Plaintiffs would have this Court effectively abolish monetary bail on the theory that any defendant is entitled to immediate release based on an unverified assertion of indigency,” Clement wrote. “Nothing in the Constitution supports that extreme position. In fact, the text and history of our founding charter conclusively confirm that monetary bail is constitutional.”