Change difficult as bail system’s powerful hold continues punishing the poor

Editor’s note: Injustice Watch staff and interns have been examining the inequities in how people are treated at different points in the criminal justice system. A report studying more than 250,000 police stops in Chicago can be found here. For the past five months, an Injustice Watch team of seven staff members and nine interns has been studying the pretrial detention of people accused of crimes, in Chicago and nationwide. This is the first of several reports examining the system of bail across America and efforts to reform it.

CHICAGO – In a rapid-fire hearing last November, Cook County Circuit Court Judge Adam Bourgeois Jr. pondered the charges against Tarmar Bivins and decided to set bail at a hefty $100,000. He quickly moved on to the next case.

But Bivins wasn’t an everyday criminal. The 26-year-old, who had no felony record, was a father with a six-month-old at home and was known for his exemplary effort at a local job-training program.

What brought him before Bourgeois that day began with a spat he had with a barber over a missing cell phone. When police arrived, they saw him walk into traffic on West Madison Street in Chicago’s Austin neighborhood and concluded he was trying to elude them.

So they acted: Bivins was tackled, shot with a Taser gun, treated at a hospital, and charged with reckless conduct, resisting arrest and aggravated battery on a peace officer. A police officer said Bivins had elbowed him as they tried to subdue him.

Bivins would spend the next 39 days in jail before another judge lowered the bail to $5,000, based on letters of support from friends and officials at the Growing Home job center. Explained manager Emma Tolman, “To have a bond set at $100,000 for someone that is obviously not violent, which we know from our personal experience … seemed so absurd to us.”

Tarmar Bivins, 27, reflects on his case outside the West Side barbershop where he said a petty dispute sparked the cops being called.
Jeanne Kuang / Injustice Watch

Bivins’s intersection with the law reflects a commonplace pattern for poor people, mostly black men and women, in Chicago and across the country. Before any evidence is presented in court, before any mitigating circumstances are developed and before they are ever proven guilty of any of the charges against them, bail is set at a level so high they languish in jail for days, weeks, or months.

Bivins is among an estimated 438,000 other people in America who the U.S. Justice Department believes are being punished not for the evidence against them, but for the size of their wallets.

Equally nettlesome is the department’s finding that the number of people in jail who hadn’t been convicted of the crimes they were accused of grew by 200 percent between 1983 and 2014 – more than twice the growth of convicted individuals.

“When the criminal justice system ends up punishing people for the size of their bank account or the color of their skin rather than the severity of their crime, it raises serious constitutional concerns,” said Vanita Gupta, head of the U.S. Justice Department’s Civil Rights Division, in September. “It traps the most vulnerable among us in perpetual cycles of poverty, debt and incarceration. It undermines the legitimacy of our justice system. It threatens the integrity of our democracy.”

Once detained for not making bail, the accused all too often sit, awaiting action by the slow-moving wheels of justice.

Some, of course, are later exonerated. Others, as would happen in the case of Bivins, plead to lesser crimes — often being sentenced to the time they’d just spent in custody.

In Chicago during an 18-month period ending in May, 1,527 men and women lingered so long in jail awaiting adjudication that they actually spent more time imprisoned than their crimes deserved.

How much extra time? A staggering 323 years.

For the last five months, Injustice Watch journalists have been assessing the bail system in Chicago and across the country. It is a system that has been under a microscope in recent years as a variety of organizations try to fix its vexing problems.

The system puts incredible costs on those held, on jailers facing large populations, and on taxpayers, who foot the bill for each person detained. Yet changing that system has proven difficult, as the experience in Chicago demonstrates. Despite significant attention and money spent in Chicago in recent years to reform the system, significant forces have stood as obstacles.

This is the first in a continuing series of articles on both the flaws in the system of pretrial detention, and the difficulties in bringing change to that system. The Injustice Watch review found:

“The problem is, in America, we have accepted as our social reality that it is okay for half the people arrested to never go home until their trial.”
D.C. Superior Court Judge Truman A. Morrison

For decades, court experts and social scientists have warned that these factors would produce lopsided justice. Bail, they contend, upsets a flat playing field, forcing punishment on tens of thousands merely on the word of police.

As D.C. Superior Court Judge Truman A. Morrison bluntly puts it: “The problem is, in America, we have accepted as our social reality that it is okay for half the people arrested to never go home until their trial.”

Historic but flawed

The system of requiring defendants to put up money in order to be free while they await trial dates back to Medieval England. The problems have long been obvious.

In 1927, Arthur Beeley of the University of Chicago warned after studying Cook County’s bail system: “The amount of bail in a given case is determined arbitrarily and with little or no regard to the personality, the social history and financial ability of the accused,” Beeley wrote. “Bail is too often excessive, and perhaps, equally often, too small.”

In most court jurisdictions, bail is commonly put up by private commercial bail companies, which recover a percentage of the fee if the defendants show up for court. The higher the bail that was set, the greater the fee.

Illinois’s legislature outlawed commercial bail bondsmen following a 1959 Cook County scandal, creating the current system in which the family and friends of incarcerated defendants post either cash or property as the bond, amounting to 10 percent of the set bail, directly to the court. The bond is to be refunded, minus fees, if the defendant appears as required in court.

An arbitrary system

In the turnstile of cases in Chicago’s central bond court at the George Leighton Criminal Court Building each afternoon, defendants’ names are quickly called out. Then, in rapid order, judges are told the charges, and are given summary information derived by court officials that morning from interviews and a check of criminal records, of how likely a defendant is to flee and how dangerous the defendant is perceived to be if released.

Teams of Injustice Watch staff observed bond hearings over several weeks this summer and recorded the outcomes: A small percentage of defendants were ordered held on no bail. Lucky defendants were ordered sent home under supervision or with electronic monitoring. But for most defendants, the judge set cash bail, often $50,000 or $100,000, as a condition of release. Defendants were then left either to raise 10 percent of that amount, or be held in the complex of buildings that make up Cook County Jail behind the courthouse on Chicago’s Southwest Side.

“What is the judge saying to the public when he sets a $10,000 [cash bond]?,” asked Cook County Public Defender Amy Campanelli of bonds that would require defendants to post $1,000.

“What is the judge saying when he sets $25,000? Is he saying you’re a flight risk? No, obviously not. So what is that judge saying? He is saying: ‘I know you’re poor, I know you can’t post even a small amount, but I don’t want you released.’”

The system can appear dehumanizing to observers. Illinois State Supreme Court Justice Anne Burke told of bringing an observer to bond court one day, where they saw a woman, apparently mentally ill, who was brought into court for a hearing. She was dressed only in underwear and a large black plastic garbage bag.

Cook County court officials say they are taking steps to address longstanding problems. They say they have implemented changes that have led to a sharp increase in the number of defendants charged with felonies who were released pretrial, either because they posted bond or were ordered released without bond. The number, according to officials, has gone up from 53 percent three years ago to 65 percent in May.

The changes include training judges and adding pretrial screening practices, and court officials say they expect the number to rise as new steps continue to be implemented to help judges evaluate the risk of whether the accused will flee before trial.

But many spend days or weeks in custody before they are able to raise bond. More than 8,200 people are held in Cook County Jail on an average day, and most are people awaiting trial who could not pay their bond.

“Cook County Jail is filled with individuals who are awaiting trial for minor, nonviolent crimes,” Burke said. “In most cases, the individuals arrested for such crimes could have been released, but instead languish in jail — in some cases for years — simply because they are indigent and unable to post bond.”

Last year, she said, the average person spent 59 days held awaiting trial in Cook County — about 33 days longer than the national average.

Even so, the U.S. Justice Department reported in August that of the 438,000 individuals incarcerated in local jails nationwide in 2011, about 60 percent were pretrial detainees, and most of them were accused of nonviolent offenses.

Rolling the dice

In Bivins’s case, he ended up in custody for 39 days.

“I was shocked, pretty much. Like, you know, I felt I was wronged. It’s just...pretty nuts,” he said.

Two weeks after Judge Bourgeois set his bail at $100,000, an indictment was handed down against Bivins. The original felony charge — aggravated battery on a peace officer — was raised. Now Bivins faced six counts of the same charge — all felonies.

Bivins stands at the corner of West Madison Street and North Lorel Avenue, where he was held on the ground by Chicago police and hit with a Taser. Police said he elbowed an officer during the arrest and charged him with aggravated battery on a peace officer.
Jeanne Kuang / Injustice Watch

“That's when they came up behind me and slammed me ... elbows, knees, you know how they do. Beat you up.”

That is not extraordinary in Cook County. “It’s not unusual that someone has a simple charge and it’s upgraded,” said Patricia Dillon, an assistant public defender assigned to Bivins’s case. “They will charge people in various ways under the aggravated battery statute in every possible conceivable way.”

Despite the higher charges, Circuit Judge Kenneth Wadas reduced the bond to $5,000 after hearing the job training center’s endorsement. The letter mentioned Bivins’s pending job and his role taking care of his child and his girlfriend’s grandmother, who was receiving dialysis treatments.

Once the bail was lowered, his family and the job training manager, Tolman, came up with the $500 needed for his release. By the time he was out of jail in mid-December, Bivins had missed over a month with his girlfriend and infant son, and lost his job offer.

Seven months later, Bivins was offered an unsettling choice: plead guilty to a single misdemeanor charge of battery, and remain free; or risk a felony conviction at trial.

While Bivins said he was inclined to “roll the dice and go ahead” to trial, he reluctantly balked. “My thought process was about my son because I was like, you know, felony, felony, felony. Because I ain’t never had no felony before …

“It wasn’t just about me. It was about (my son). Everything I do right now affects him, and I know that. So that’s how I made my decision. So I accepted the plea bargain.”

“Everything I do right now affects him, and I know that.”

Bivins plays with his son, Tarmar, Jr., on the porch of his South Side home, where they live with Bivins's girlfriend and her family.
Jeanne Kuang / Injustice Watch

In addition to a 39-day sentence — reflecting the amount of time he had already spent in jail — Bivins was put on two years’ probation and required to enroll in an alcohol treatment program.

“I think they just counted that out, because I was in there,” Bivins said. “It’s kind of like their way of saying I can’t recoup them 39 days.”

Obstacles impede reform

Around the country, efforts to reform the bail system have encountered a series of roadblocks. Many judges and court officials are so used to the system that change becomes difficult.

“As people get released, the risk increases. And judges are fearful of being held responsible for any harm.”
Adam Gross of Business and Professional People in the Public Interest

Politics plays a part in many jurisdictions, with bail bondsmen among the interest groups that contribute money to elected officials as they fight reform.

Judges who set bond often find it politically safer to lock people up than to release suspects who may commit crimes. “If you wanted a system where no one will get hurt, lock everyone up,” said Adam Gross of the Business and Professional People in the Public Interest, a Chicago-based law and policy center. “As people get released, the risk increases. And judges are fearful of being held responsible for any harm.”

Public defender Campanelli contends the system is too arbitrary, and the outcome of bail too often is decided by judges who are afraid that something bad may happen if they release more people before trial. Campanelli noted there are three dozen different criteria in the state statute on what judges should consider when they set ball. But too many judges, she said, only care “about the 37th factor: CYA,” referring to “covering [their] own asses.”

The elected political leaders, too, have specific agendas that often conflict. In Cook County, many complain of the uncooperative spirit. One example often cited: At the urging of Cook County Board President Toni Preckwinkle, the Illinois Supreme Court took the unprecedented step of calling together officials from Cook County with a role in bail. The full court was present to meet with Preckwinkle and the court clerk, the state’s attorney, the public defender and the sheriff to discuss pretrial detention issues. But state’s attorney Anita Alvarez failed to attend the first meeting, citing a prior obligation.

“We all work in our silos, where we have often had no cooperation and collaboration,” Campanelli said. Still hopeful for change, she credits Preckwinkle and Justice Burke for bringing the parties to the table.

Burke says flatly that she is “frustrated” by how slow Cook County is to improve the system.

One added obstacle is that the county’s criminal justice system remains mired in the past.

Substantial data is on paper. Computers are antiquated. Reports are not kept current. The last one to count the number of pretrial detainees was completed in 2012, based on 2011 data. And no one ties police arrest data to cases to determine just how many accusations are proven or even valid in the first place.

“It is frustrating that there is so little information out there that objectively describes what goes on in Cook County,” said David E. Olson, a criminal justice professor at Loyola University whose 2012 study for the sheriff’s office is based on data that officials have not updated.

“It is frustrating that there is so little information out there that objectively describes what goes on in Cook County.”
David Olson, Loyola University Chicago

How difficult is it to get current statistics in Cook County? Sheriff Dart’s office said it could not say with precision how many people in custody at the jail had not yet been tried (see update below). The Cook County Circuit Court’s office could not provide current figures on how many defendants are being released without cash bail.

Olson found in his 2012 study that 90 percent of the men and women then in custody in Cook County were being detained pretrial.

The Cook County Jail, the country's largest single-site jail facility, sits on a sprawling 96 acres on Chicago's Southwest Side and holds over 8,000 people daily.
Emily Hoerner / Injustice Watch

Costs of confinement

In America’s criminal justice world, looking at jail time as the totality of punishment overlooks a multitude of grim factors.

The obvious ones are easy: a loss of liberty, the end of a current job and the inability to get the next. But family life too can dissolve. Marriages and relationships fray and break. Children grow without a parent. Stress and the propensity to commit more crimes grow.

“Tens of thousands of institutionalized persons … were confined in dire, often life-threatening conditions.”
U.S. Department of Justice

Yet in too many cities and towns across the nation, another hidden penalty can multiply anyone’s punishment.

The culprit: the lockup.

In 2015, the Justice Department prepared a chilling summary of its actions to protect inmates from excessive force by guards, physical and sexual violence among inmates, the widespread use of punitive solitary confinement and the failure to care for the mentally ill in custody.

The Justice Department found or was investigating such abuses at jails or prisons in 31 separate jurisdictions from California to New York and Maryland over the course of just six years.

“Tens of thousands of institutionalized persons … were confined in dire, often life-threatening conditions,” the department said.

In 2011, a three-judge panel of U.S. District Court judges ruled that overcrowding was a primary cause of the unconstitutional conditions at the Cook County Jail. And why was the jail so crowded? The panel noted an “unexplained reluctance of state judges in Cook County to set affordable terms for bail.”

The jail has been under a consent decree since 2010 over widespread civil rights violations. Since then, Dart has taken a number of steps to improve conditions. And while inmates in 2014 testified that conditions in the maximum-security section were dangerous, U.S. District Judge Virginia Kendall refused to order Dart to take additional measures, ruling he had worked “diligently” to improve conditions.

What is perfectly clear, however, is how harrowing incarceration can be.

Injustice Watch found that Cook County is paying millions each year to settle lawsuits brought by current and former inmates.

And so far this year, over 200 federal lawsuits are pending in Chicago, alleging some kind of trouble at the jail.

Twenty-six allege attacks by fellow inmates while 33 accuse jail personnel of using excessive force. The remainder accuse jail officials and Cermak Health Services, the medical provider at the jail, of failing to provide adequate medical, mental health or dental care or of having inadequate facilities for the disabled. Others cite poor living conditions such as bad food and rat infestations.

Tirrell Cannon, 40, is somewhat of an expert on the Cook County Jail. He’s been in and out of the system often since he was 17.

Most recently, while out on bail on a felony marijuana charge last September, he was arrested for marijuana possession. By the time he pleaded guilty and was released, Cannon had served 251 days—71 days more than the sentence he received, according to data from the sheriff’s office.

At the time, though, Cannon, a father of five, says he was just happy to get out.

“The way they treat you, it's so horrible that I never want to go back,” he says. “Beans, rice and potatoes and something they call meat. Prices on commissaries is outrageous. Once you in there, you know you ain't coming out. So you gotta have a strong mind. It's a jungle."

For five years, attorney Patrick Morrissey has made a practice of representing physically disabled inmates or former inmates.

He calls conditions at the jail “shocking.”

One client, a double amputee, was detained for five months at the jail in 2012 and 2013 on a $100,000 bail for felony drug and weapons charges. During the entire time, his lawsuit alleged, there was no accessible toilet, sink or shower for him, causing him to fall and injure himself. At one point, Morrissey said, his client ended up washing himself in the janitor’s closet.

In August, a jury awarded him $95,000 in damages. The county filed to appeal in October.

“The law has evolved in a way that’s very protective of the criminal justice system.”
Jon Loevy, civil rights attorney

In all, between July 2015 and August 2016, the Cook County Board of Commissioners approved payments of more than $5 million to settle 218 lawsuits that dated back several years. Those actions made multiple accusations, including inmate violence and excessive force by guards.

Among the cases filed this year, four allege that inadequate health care and neglect resulted in inmates’ suicides at the jail. Among the settled cases were one suicide and two attempted suicides.

Cara Smith, policy adviser for Dart, who runs the jail, said it would be wrong to see settlements as evidence of culpability. "I just don't think you can look at these summary documents and draw conclusions," Smith said, noting that many complaints are unfounded and many problems, such as medical care, involve an agency beyond the sheriff’s authority. "Sometimes we'll settle a case for a very nominal amount of money, sometimes they'll just be a nuisance settlement. Sometimes we'll settle because it's the right thing to do and we think there's liability."

Civil rights lawyer Jon Loevy said he believed the settlements are only the tip of the iceberg when it comes to jail complaints. Lawyers are reluctant to bring cases against the jail because gathering evidence to prove complaints is difficult. “The law has evolved in a way that’s very protective of the criminal justice system,” he said.

Petty crimes, jail time

Nothing reveals the failings of Cook County’s criminal justice system more than the hundreds of poor men and women who sit in jail with no finding of guilt after they’d been arrested for minor crimes.

Injustice Watch’s assessment of all those jailed for failing to pay bail on a single day — May 31 — found that 329 men and women were accused only of misdemeanors.

And if the past is a guide, many of those will either end up with cases dropped; with guilty pleas for the time they already served; or for sentences that exceed the maximum penalty for their alleged crimes.

Records kept by the sheriff show the excess penalty for 1,527 individuals detained in Cook County Jail before trial during 18 months ending in August, was 323 years.

Kevin Cordero, 26, was arrested on May 17 for criminal trespass at a local Hilton Hotel, where the homeless man had been warned repeatedly against loitering.

He was released later that day, but had another run-in with police the next day. He was caught on a surveillance camera stealing two packages of sushi worth $16.98 from Jewel Osco.

Cordero was charged with misdemeanor retail theft and for violating the terms of his earlier release. A judge set his bail at $1,000, which he did not pay.

After nearly two months in jail, Cordero was committed to the custody of the Illinois Department of Human Services because he was unfit to stand trial.

His diagnosis: “Significant symptoms of a mood and psychotic disturbance."

Chicago is hardly alone in its struggle with the homeless.

Over the last year, the Justice Department has moved to discourage cities nationwide from jailing homeless individuals simply because they live on the streets. In a case in Boise, Idaho, department lawyers warned that doing so is a violation of the Eighth Amendment.

Essentially, the department’s filing in the case explained that it wants to stop the “revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.”

Fenton Ross, a 58-year-old resident of Broward County, Fla., had been homeless for five years at the time of his Dec. 8, 2015 arrest.

First seen by police drinking in public, Ross also was accused of possessing the stimulant alpha-PVP, known as flakka. The cops said they found the drug in a cigarette Ross said he had picked up off the ground at a bus stop.

When he first appeared in court, he was about to be released under the condition that he call in twice weekly and promise to return to court until the judge was told Ross was homeless. A video of the judge’s quick turnaround and the argument with Ross’s defense lawyer over the $1,000 bail that sent Ross to jail made its way to YouTube and gained media attention.

Here’s what happened to Ross’s case.

Twenty-eight days after his arrest, Ross was released only after his lawyer successfully appealed his bail. All the charges ultimately were dropped, which Ross said was because the state lab found no flakka in the cigarette police had said was laced with the drug.

Now Ross would like to get his felony arrest expunged from the official record. He hopes that will make it easier to someday get a job.

“The video of the court session made it to three sites on the Internet, for a total of over 30 thousand views, showing me being prosecuted ... for possession of flakka,” Ross recalls. “And I feel that this event has doomed me to a life of marginal existence on the peripheral of society with this ‘scarlet letter’ on my forehead. I think I was denied due justice.”

Bonds for felony charges in Chicago are set daily at the George Leighton Criminal Court Building, commonly known as "26th and Cal," in a process that often takes less than two minutes per defendant.
Emily Hoerner / Injustice Watch

Progress, but limited

Despite the obstacles, some progress has occurred in recent years in Cook County. More people are being released on electronic monitoring, and the number of defendants being given cash bail is dropping.

The Arnold Foundation has provided the Cook County Circuit Court with a tool the foundation developed intended to objectively establish whether the defendant is likely to show up in court and whether the defendant poses a danger to the community.

Reform advocates welcome measures that cause fewer people to be confined pretrial. But they contend such measures still fall short. In her budget address Thursday, county board president Preckwinkle acknowledged the improvements but said more must be done: "We will continue to work to reduce pretrial detention and address the racial disparities that still plague our system, despite the reduction in our jail population," said Preckwinkle.

Sharlyn Grace, a Chicago Appleseed fellow, is among those who contend measures like risk-assessment tools fail to get at the heart of the issue. “The problem is that these efforts are based on whether a defendant has enough money to get out of jail until trial,” said Grace, who has helped develop the revolving Chicago Community Bond Fund to get more people out of jail by helping them pay their bail. “What sense does that make? How is that constitutional?”

To Grace, defendants who are deemed dangerous or likely to flee should not be given the chance to pay for freedom. But if a defendant is deemed neither dangerous nor a flight risk, his freedom should not be based on money.

Across the country, there has been an explosion of lawsuits, many developed by the nonprofit organization Equal Justice Under Law, challenging the way bail is set in jurisdiction after jurisdiction, from Houston to San Francisco to small towns like Clanton, Ala.

"No human being should be kept in a cage because she cannot make a monetary payment," said Alec Karakatsanis who helped develop many of these cases when he was at Equal Justice Under Law, and recently left to launch a new organization, Civil Rights Corps. "For too long the money bail system has violated that basic human and moral principle on a massive scale."

In a pending case in Suffolk County, Mass., the lawsuit was filed on behalf of Jessica Wagle, who was arrested in July on drug charges and held on a $250 bail that she could not afford. “This case,” her lawsuit states, “is about the irrationality and harmfulness of wealth-based pretrial detention.” The suit raises the issue: Can it be constitutional to hold people who have not been convicted of a crime, based on their poverty?

UPDATE: The Cook County sheriff’s office contacted Injustice Watch following publication, regarding the percentage of inmates in the jail who are pretrial. The number in custody as of Friday was 8,163, and only 235 — 2.87 percent — are serving a sentence post-conviction. The rest, she said, are awaiting trial or are awaiting sentencing. The sheriff’s chief policy spokeswoman, Cara Smith, noted the office’s efforts to be transparent, and blamed on a miscommunication the earlier response that the number was not available.

Reporting contributed by Injustice Watch staff members James Asher, Adrienne Drell, Larry Green, Camille Darko, Sam Hart, Emily Hoerner, Adrienne Hurst, and Jeanne Kuang, and Injustice Watch interns, Amani A Abou Harb, Olivia Exstrum, Asif Haq, Anna Hazard, Sumayyah Jones, Maya Manilow, Monica Miller, Leonor Ortiz Monasterio, and Hafsa Razi.

Written by Injustice Watch Staff
Designed and Developed by Sam Hart
Injustice Watch © 2016