We lock up poorest, not most dangerous

In Cook County, and throughout Illinois, if you are charged with a crime, your release from jail depends on the wallet’s thickness.

Nearly 80 percent of all criminal defendants were held in jail after their first court appearance in 2011, according to data from Loyola University. The majority of those defendants, charged with non-violent or relatively minor crimes, could go home if only they were able to come up with enough cash.

But as anyone with experience with indigent defendants knows, coming up with even small amounts of bail money can be difficult, if not impossible, for poor defendants. And the majority of defendants are poor; nationwide, about 80 percent of defendants qualify for a free attorney. Of those who walked out of the Cook County Jail in 2011, only one third did so because they made bond. Of the 67 percent of defendants who were not able to bail themselves out, the majority were eventually released on probation, sentenced to time-served, or released when the charges were dropped entirely.

These defendants lost weeks or months of their lives simply because they did not have enough cash on hand. Lowering bonds will not fix the problem; in 2011, almost a quarter of defendants asked to pay $600 or less remained in jail for their entire case, unable to come up with that small sum.

The impact of pre-trial detention extends to sentencing. Research from the Laura and John Arnold Foundation suggests that a defendant held pre-trial is five times more likely to be sentenced to prison. Moreover, defendants who remain in detention serve sentences that are nearly three times as long as defendants who are released at some point prior to sentencing. That this is true after controlling for offense type, criminal history, and general “dangerousness” suggests that pre-trial detention itself is driving prison sentences.

Given the high costs of pretrial detention (which continue to rise in Cook County even as arrests fall), and the relationship between pre-trial incarceration and prison sentences, meaningful criminal justice reform should include an examination of bail. High bonds are the result of laws and judicial culture, not necessity.

Compare Cook County with another busy, urban courthouse: Washington, D.C., which uses a simple “in or out” system. If a defendant is dangerous enough to warrant detention, he [or she] is held. If a defendant is not dangerous and there is no clear risk of flight, he is released, often with conditions to ensure that he returns to court and generally stays out of trouble. Defendants are not asked to scrape together money to secure their freedom; poverty does not result in a defendant’s continued incarceration.

This system works remarkably well; where Cook County incarcerates or imposes a bond on upward of 80 percent of pre-trial defendants, Washington, D.C. releases 85 percent of pre-trial defendants. Only 1 percent of those released are re-arrested on violent crimes, and 88 percent of defendants make their future court dates. Taxpayers do not bear the burden of housing, clothing and feeding defendants who would be released but for the figure in their bank accounts.

As the administration of a new governor, Bruce Rauner, lays the groundwork for reforms that will make our criminal justice system fairer and more cost-effective, it would be prudent to consider the ripple effect of pre-trial detention. Changing the norms of pre-trial detention — from a system that requires defendants to buy their freedom to a system that assumes defendants will litigate their cases from their homes — has the potential to significantly reduce both jail and prison populations, thus reducing the cost of administering our criminal justice and correctional systems.

Jennifer Soble is a federal defender based in Hammond, Indiana. She was a visiting assistant clinical professor at Northwestern School of Law from 2012-2013. She was also a public defender at the Public Defender Services in Washington, D.C., where she practiced law for five years.