Cook County Adds Objective Criteria to Making Bond Decisions

Whether a defendant is released on a cash bond, on his or her own recognizance ("I bond"), or not at all, is the first crucial decision a judge makes after someone is arrested. Despite the importance of this decision, in most U.S. courtrooms this ruling has been primarily a subjective one.

Earlier this year, Cook County quietly began using a new tool called the Public Safety Assessment (“PSA”) to help eliminate any personal bias of the judge when deciding whether a defendant can be released on a cash or I bond.

The PSA is an objective, evidence-based, pretrial tool that applies nine risk factors to rank which defendants pose the greatest risk of re-offending, engaging in violence, or failing to appear in court.

Factors critical to this assessment: defendant’s criminal history, current charges, and age. Factors not taken into account: defendant’s race, sex, socioeconomic status, education, or where he lives. The PSA is now being used in a handful of states.

Data collected from Kentucky, which began using the PSA in 2013, found no racial or gender bias with its use. In other words, the risk rankings for African Americans and whites were virtually indistinguishable.

Few Defendants Remain Free Pending Trial

In the 1990s, nearly half of all defendants were released on an “I bond”. By 2006, the practice had fallen out of favor. This is certainly true in Cook County, Illinois.

According to 2011 court data, only 8% of defendants were released on an I bond, with another 13% released on electronic monitoring. See Population Dynamics and the Characteristics of Inmates in the Cook County Jail (Loyola University Chicago 2012). Illinois law provides that a cash bond is supposed to be used as a last resort.

In 2011, 79% of defendants in Cook County custody were either unable to post bond or were held without bond. Only a third of defendants ordered to post a cash bond could.

By comparison, New York City releases 70% of all defendants facing felony charges. This begs the question: are Cook County judges needlessly jailing people?

A cash bond is ordered when a defendant is identified as a flight risk or a danger to the community. In Cook County, being poor or a minority appears to be an added “risk” for being denied an I bond.

African Americans represent 12% of the U.S. population but made up 67% of Cook County Jail’s population in 2011, followed by Hispanics (19.5%), and whites (13.5%). In 2010, the unemployment rate for African American males was nearly twice that of their white counterparts, 18.4% to 9.6%.

Pleading Guilty to Get Out of Jail

The most powerful predictor of whether someone pleads guilty depends on whether he is in custody. Faced with the prospect of sitting in jail, many plead guilty. A 2012 study estimated that more than 50% of innocent defendants plead guilty.

Understandably, few defendants consider the short and long-term consequences of pleading guilty.

After a plea or finding of guilt, court costs, fines, and probation/supervision fees are usually imposed.  These can run into the thousands of dollars.

When a defendant is unable to pay the fines and costs, his sentence is often terminated unsatisfactorily.  One of the reasons why a judge will deny a petition to seal is if the individual has previously unpaid court fines and costs.

Only time will tell if using the PSA will eliminate the documented racial disparity seen among those who get to remain free while criminal charges are pending versus those who don't.