Disparately resourced public defenders prepare for the end of cash bail
in Illinois
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[September 16, 2023]
By HANNAH MEISEL
Capitol News Illinois
hmeisel@capitolnewsillinois.com
Illinois on Monday will become the first state to fully abolish cash
bail through an act of the legislature — a major criminal justice
overhaul spurred by the advocacy of a progressive faction of the
Democratic Party that’s grown increasingly powerful in recent years.
The reform goes into effect after nearly three years of brutal
legislative and political fights over the SAFE-T Act, one of several
massive pieces of equity-focused legislation pushed by the Illinois
Legislative Black Caucus in the wake of nationwide protests in 2020 over
injustices faced by Black Americans and systemic racism more broadly.
Criminal justice reform advocates have been working toward Monday’s
rollout for years, beginning with the premise that an arrestee’s ability
to post bond does not equate with the danger he or she poses to the
community. While some charged with violent crimes like domestic battery
were able to buy their way out of jail under the old system, others were
left sitting in jail for weeks or months because they can’t afford bail,
sometimes for low-level offenses.
This cost some their jobs, homes or even parental rights in the process.
“As a defender, one of the hardest things I have to do is have
conversations with mothers, sisters…how are they gonna pull together the
money to get their person out of jail?” Cook County Public Defender
Sharone Mitchell, who was heavily involved in crafting the law in his
previous job at the Illinois Justice Project, said at a recent media
briefing about the end of cash bail.
“Judges never had crystal balls and never will have crystal balls,” he
said, adding that he believes the Pretrial Fairness Act – the bail
reform portion of the wider-ranging SAFE-T Act – will help improve
judges’ decision-making when considering whether to detain an arrestee.
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But while the end of cash bail is supposed to create a more equal
justice system, the months of preparation leading up to the SAFE-T Act’s
full implementation have accentuated profound disparities between the
court systems in each of Illinois’ 102 counties.
And no matter how the local officials feel about the end of cash bail
and the state’s overhaul on pretrial procedures, they’re responsible for
implementing the law with whatever resources they have – a reality even
some of the law’s most ardent opponents have acknowledged.
Counties face disparate resource challenges
Some bigger counties are better prepared than others for the changes
required by the PFA. Cook County, for example, is one of a few counties
that has for years been moving toward limiting the use of cash bail.
Additionally, the county’s criminal courthouse on Chicago’s near-south
side has for years been holding bond court every day of the week – a
practice shared by other larger county court systems in Illinois.
Beginning Monday, that courthouse will hold initial appearance hearings
at midday, along with longer detention hearings every morning and
afternoon. During a media briefing last week, Cook County Judge Mary
Marubio, who presides over the county’s pretrial division, outlined how
these hearings will be organized across multiple courtrooms in the
criminal courthouse in Chicago.
“It’s not so different from how we release people now, it’s just that
money will no longer be a condition of release,” Marubio said.
Mitchell has also been beefing up his staff at the public defender’s
office since he was appointed in early 2021. A spokesperson for the
office said increasing staffing was a priority for Mitchell regardless
of the PFA’s requirements, and the office has hired “well over 100” new
attorneys since 2021. Mitchell also created a Pretrial Division in
anticipation of bail reform’s original Jan. 1 implementation date, and
21 attorneys have been assigned to that unit.
It’s an entirely different story in southeastern Illinois, where Nathan
Rowland is the part-time public defender serving Gallatin County, which
borders Indiana, and neighboring Hamilton County. Those counties have a
combined population of nearly 13,000, per 2020 U.S. Census data.
Rowland, who serves as president of the Illinois Council of Chief
Defenders, is one of a handful of part-time public defenders in Illinois
who contract with more than one county. But his status as a part-time
public defender is much less rare; more than half of Illinois’ 102
counties don’t have full-time public defenders.
Per state law — which hasn’t been updated since 1949 — only counties
with 35,000 or more residents are required to set up offices of public
defender, and even then, they’re not required to be full-time. Counties
with populations of less than 35,000 aren’t required to establish a
public defender program, though in modern history even the smallest of
counties have at least contracted part-time public defenders, while
others have voluntarily hired full-time PDs.
Rowland does his public defender work out of his law office in
McLeansboro in Hamilton County, appearing in court across the two
counties as needed when he’s assigned clients who can’t afford an
attorney — usually after defendants’ initial bond hearings. But after
Monday, his presence will be required at every initial condition and
pretrial detention hearing for newly arrested defendants. Rowland noted
that this is a much greater challenge for judicial systems in rural
areas of the state than it is in counties like Cook.
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While supportive of bail reform, Rowland also predicts the first several
months under the new pretrial system will be difficult, especially in
places with judicial systems vastly different than places like Cook and
the collar counties.
“They're used to running court all day every day anyway,” he said of
Cook County’s existing bond court schedule. “In other parts of the
state, we're doing something that we have never done before and have not
been set up to do.”
Late last month, the Illinois Supreme Court issued an order allowing
pretrial hearings to take place remotely for six months. Rowland said
without the ability to use videoconference technology for the pretrial
hearings, counties like his would be unable to comply with the PFA’s
requirement that arrestees appear in front of a judge within 48 hours.
It’s not just Rowland’s limitations as a single part-time public
defender serving two counties; he noted that getting all parties
together in one courtroom has always been difficult. Neither Gallatin
nor Hamilton counties run their own jails, so arrangements must be made
with the sheriff’s office from the White and Saline county jails to
transport detainees.
Court reporters are also in short supply, and state’s attorneys offices
in some counties are also one-person operations, Rowland said. Judges
also travel from courthouse to courthouse in the 12 mostly rural
counties of the state’s Second Judicial Circuit.
“In both of the counties that I practice in, after Thursday at noon,
generally there's no judge in the county until Monday at 9 (a.m.),”
Rowland said. “We don't have judges assigned to either of these counties
on Fridays at all…Some counties only have a judge scheduled twice a week
or three times a week.”
Even before the COVID-19 pandemic necessitated the adoption of virtual
hearings, Rowland said local court systems had started experimenting
with remote court, and he predicted those lessons would help after
Monday. But if he or another person whose presence is required for
pretrial hearings gets sick or goes on vacation, Rowland said the cases
would likely just have to be rescheduled.
Nearly 100 miles northwest of Rowland’s law office, St. Clair County
Public Defender Cathy MacElroy is gearing up for what she expects to be
a rocky road for the next two years. In December, just weeks before cash
bail was originally set to end in Illinois, MacElroy alerted the
county’s chief judge that her office’s workload was so dire, the public
defender could no longer accept any new cases.
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At the time, the five full-time attorneys in the office were each
handling more than 350 cases in 2022 — well above the American Bar
Association’s recommended guideline of 150. Since then, MacElroy said
things got better, but the reprieve didn’t last. County officials made
the public defender job full-time in January, and MacElroy was able to
increase the base pay for attorneys in her office and recruit two more
defenders.
Attorneys in the public defender’s office have since lowered their
caseloads down to around 200 cases per year, but MacElroy expects that
number to begin climbing again after Monday.
“We have a lot of violent crime in the county,” she said. “Each of my
full-time lawyers has at least 10 murder (cases)…And this week in my
county from Friday until now there have been five murders charged. I
don't know what happened in the last week, but that's kind of like what
we're dealing with. We get rid of one (case) and five more appear.”
Additionally, in recent months, the public defender’s office has lost
two full-time lawyers, including one who moved over to the state’s
attorney’s office and is making roughly $10,000 more, MacElroy said.
She’s already hired a recent law school graduate who expects to be fully
licensed in November and is hopeful to hire an eighth attorney. But the
competition for public interest attorneys is fierce, MacElroy said, as
“every state’s attorney and public defender's office in the state
basically is hiring right now” due to the demands of Illinois’ pretrial
overhaul.
The state has appropriated $10 million for public defenders to help
implement the Pretrial Fairness Act, with the state’s 101 counties
outside of Cook each receiving between $77,000 and $147,555.
While MacElroy is grateful for that funding – and generally supportive
of the concept of ending cash bail – she said St. Clair County’s portion
of that appropriation isn’t as much as she’d hoped, especially if it’s
funding that won’t be reallocated in future years.
Beginning next week, those already jailed can petition for hearings to
be released under the PFA’s guidelines. They would be entitled to a
detention hearing on a timeline set in law based on the seriousness of
their alleged crime.
For Rowland’s area of the state, this is not a big number.
“In one county we've got two people in custody and we know we're gonna
have hearings on them on Monday,” Rowland said. “In another county, I’ve
got three people in custody and I'm gonna be having hearings on them on
Wednesday.”
In Cook County, current detainees numbered nearly 5,400 on Friday,
according to the sheriff’s daily report. Mitchell said last week that
petitions for pretrial release within the current jail population would
be assessed on a “case-by-case basis.”
MacElroy predicts the group of 150 or so current St. Clair County Jail
detainees she already filed petitions for could have their days in court
and released within the next week. She added that the county’s state’s
attorney’s office has also filed detention petitions for approximately
250 people currently in jail. As those cases all fall under the
detainable crimes according to the law, MacElroy predicted they’ll be
heard over the next few months.
Help from the state
Illinois is one of seven states without any oversight mechanism for
monitoring how effectively counties’ court systems help defendants
exercise their right to counsel for trial via the public defender’s
office, according to a 2021 study commissioned by the Illinois Supreme
Court. The resulting report from the Boston-based Sixth Amendment Center
warned that Illinois’ framework limits the independence of public
defenders and makes for inadequate representation in counties where PDs
are overworked.
More than half of states directly fund public defenders instead of
leaving funding up to counties like Illinois does.
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While the state isn’t any closer to creating a statewide public defender
system, the Illinois Office of Statewide Pretrial Services represents a
major step forward in providing resources to judicial systems across the
state. As of October 1, OSPS will partner with 71 counties. For months,
it’s been offering services like compiling information about new
arrestees. OSPS is also charged with helping connect those who are
released from jail with services like drug treatment or anger
management, whether voluntary or ordered by the court.
The agency has hired pretrial service officers embedded in 47 of the 71
OSPS-affiliated counties so far Those officers are responsible for
quickly preparing reports on new arrestees’ criminal histories and
professional backgrounds based on interviews with the defendant and
associated fact-checking. The reports are then sent to public defenders,
state’s attorneys and judges.
A few dozen counties in Illinois already had their own versions of
pretrial service offices. But OSPS has lightened the load for some of
them, like the court’s probation department in St. Clair County, which
opted into OSPS.
But in counties that have never had any formalized pretrial service
office, Rowland said OSPS’ work has proven extremely helpful to the
entire judicial system, but particularly to his work as a public
defender. Prior to last year, he said he’d walk into hearings totally
blind, having never met his client and not knowing “anything about him.”
“Right before the hearing…I’d be standing over in the corner (saying),
‘This is what you've been charged with. Where you living? You got a
job?’” Rowland said. “I (didn’t) know any of that.”
Pretrial service officers begin their days early in the morning, and
Rowland said he’s been receiving reports on new arrestees oftentimes
before 8 a.m.
In August, OSPS began oversight of electronic monitoring in
participating counties, and began picking up the tab for those ordered
to wear the GPS tracking devices – fees that would sometimes drive the
poorest defendants into debt.
MacElroy said she was glad her clients would no longer be saddled with
the cost, but also noted that in St. Clair County, electronic monitoring
isn’t used “a ton.”
She predicted that under the PFA, judges might even order ankle monitors
less often, as prosecutors would have to present specific findings for
why the GPS tracking would be necessary. The PFA requires judges to find
the “least restrictive” pretrial conditions necessary for a defendant,
and the law provides that individuals on electronic monitoring can have
two days per week to move freely so they can accomplish daily tasks.
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But despite the assistance OSPS is giving, not all areas of the state
will adopt electronic monitoring. In rural southeastern Illinois, for
example, defendants typically had not been able to afford the daily fees
associated with ankle monitor use, so electronic monitoring has
historically been rare. But, as Rowland pointed out, many rural areas
face a much more basic logistical hurdle: large swaths of land with
neither cell phone coverage nor reliable broadband — or even landline —
service.
“Well, you've lost signal,” Rowland imagined an OSPS employee saying as
they cite a defendant for non-compliance. “Well, what does that mean?
They've tampered with the device or they've just lost signal because of
where they're at?”
Rowland said defense attorneys would be “on guard against” increased use
of electronic monitoring in his area of the state, saying he worries it
could set his clients up for failure in the judicial system.
Capitol News Illinois is a nonprofit, nonpartisan news
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