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Estimating the Impact of the Pretrial Fairness Act: Bond Court Hearings in Cook, Lake, Winnebago, and McLean Counties

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Estimating the Impact of the Pretrial Fairness Act: Bond Court Hearings in Cook, Lake, Winnebago, and McLean Counties

This research brief examines trends in bond court hearings in Cook, Lake, and Winnebago Counties, specifically examining the factors cited in support of bond court recommendations and decisions, the length of bond court hearings, and the alignment between recommendations and decisions. The analyses are based on observations of bond court hearings in each county. Observations were conducted over three days in each county and included tracking information on arguments made by prosecutors and defense attorneys, judges’ bail decisions, timing of hearings, and additional information on defendants and courtroom discussions. Understanding trends in current bond hearings is a starting point to estimating and planning for the potential impact of the PFA.

How Will Hearings Change Under the PFA?

Individuals arrested for a felony and for most misdemeanors in Illinois generally appear for a bond court hearing before a judge who sets bond. Bond court judges may impose one of three bond types:

  • Individual recognizance bond (I-Bond) for which defendants are released without having to post monetary bail
  • A deposit bond (D-Bond) for which defendants pay 10% of the bond amount or a cash bond (C-Bond) for which defendants pay the full value of the bond amount in order to secure release from jail
  • nNo bail in which defendants are denied bail and ordered to remain in jail.

Individuals arrested for some misdemeanors may be released on an I-Bond by a local law enforcement agency or may post a C/D-Bond at a local law enforcement agency according to a bond schedule; those unable to post the C/D-Bond set by law enforcement, may be released on an I-Bond at the discretion of law enforcement or will appear in bond court where a judge will determine bond.

Under the PFA, individuals will no longer receive C/D-Bonds, since the PFA eliminates the use of monetary bail. Rather, the PFA requires that individuals be released on their own recognizance (with or without supervision), unless the prosecutor files a motion to detain an individual pretrial and the judge determines that detention is necessary. Essentially, there will be two possible decisions: release an individual or detain them until trial. Individuals for whom detention is sought must have a detention hearing within 24 to 48 hours of the initial appearance. Thus, for cases where detention is sought, there will be an additional hearing following the initial appearance. In addition, the PFA specifies that “risk assessment tools may not be used as the sole basis to deny pretrial release” and, if detention is granted, the “Court must make a written finding as to why less restrictive conditions would not assure safety to the community and assure the defendant’s appearance in court.”

How Are Bond Court Hearings Conducted in Cook County?

In Cook County, bond court hearings occur during the weekdays in each of the six district courthouses – Chicago and the five suburban districts. Bond court hearings for misdemeanor domestic violence cases from Chicago also occur at a separate Domestic Violence Courthouse. The bond court hearings observed for this project were those occurring at the Chicago district courthouse that handles non-domestic violence cases for offenses occurring in Chicago.

In Cook County, a bond court hearing begins with the judge asking the defendant their name and inquiring whether the defendant has a private attorney. If the defendant has no attorney, a public defender is appointed. In the 54 cases observed, defendants had private attorneys in just 22% of cases (12 cases). The judge then reads the charges and asks the pretrial services officer to read the numerical scores of the Public Safety Assessment (PSA).

The judge then asks the prosecution to give the State’s case, which includes a brief description of the events of the crime and the defendant’s criminal history. Prosecutors tend to highlight a limited number of factors when discussing the case: the charges, the defendant’s criminal history, and the effects of the crime on the victim. The prosecution’s presentation, however, generally does not conclude with a recommendation on bond. In fact, in the 54 cases observed, the prosecution only provided bail recommendations in 4 cases (7%) when they were requesting No Bail. In all other instances (50 cases, or 93%), the prosecution concluded their presentation without making a bond recommendation.

Following the prosecution, the judge asks the defense attorney to present “mitigation.” Defense attorneys generally note a defendant’s connections to the community, their employment status, and the strength of the evidence. Private attorneys often will bring up potential weaknesses in the evidence; however, public defenders did not address evidentiary factors in any of the cases observed. Interestingly, in the 54 cases observed, defense attorneys made a bond recommendation in just 26 cases (48%); moreover, in just 4 of these cases (7%), defense attorneys simply asked for “reasonable” bail, and in the 4 cases in which prosecutors recommended No Bail, defense attorneys simply asked for “bail” without providing a bail amount.

The case concludes with the judge summarizing the facts given by both the prosecution and defense, states the bond decision, and notes the next court date for the defendant. However, in the 54 cases observed, judges provided reasons for their decision in just 28 cases (52%); when providing reasons, judges tended to highlight the defendant’s PSA score, current probation/parole status, and the charges in the case.

Overall, there was little overlap in the factors prosecutors, defense attorneys, and judges referenced in making arguments during bond hearings. In the 54 cases observed, the most frequent factors mentioned by prosecutors included the current charges (91% of cases), the defendant’s prior criminal history (35%), and the impact of the crime on the victim (27%). In contrast, the most frequent factors mentioned by defense attorneys included the defendant’s community ties (91%), the defendant’s current employment or education status (55%), and the strength of the evidence (16%). As noted above, judges rarely provided any reasons for the bond court decision; when factors were mentioned, the most frequent included the PSA score (20%), the defendant’s probation/parole status (16%), and the current charge (11%).


How Are Bond Court Hearings Conducted in Lake County?

In Lake County, all bond court hearings occur in a single courtroom. A bond court hearing begins with the judge calling the case and acknowledging any persons in the courtroom who may be there to support the defendant. The judge generally asks the defendant their employment status and asks if they plan to hire a private attorney or would like the judge to consider appointing a public defender. The judge then reads the charges and asks the pretrial services officer to read the numerical scores of the Public Safety Assessment (PSA).

The judge then asks the prosecution to give the State’s case, which includes a brief description of the events of the crime and the defendant’s criminal history. Prosecutors tend to highlight a limited number of factors when discussing the case: the charges, the defendant’s criminal history, and the effects of the crime on the victim. The prosecution’s presentation, however, generally does not conclude with a recommendation on bond. In fact, in the 26 cases observed, the prosecution only provided bail recommendations in 3 cases (12%), recommending an I-Bond in one case, a D-Bond in another, and No Bail in the third. In all other instances (23 cases, or 88%), the prosecution concluded their presentation without making a bond recommendation.

Following the prosecution, the judge asks the defense attorney to present “mitigation.” Defense attorneys generally note a defendant’s connections to the community, their employment status, and their ability to pay bail. Interestingly, in the 26 cases observed, defense attorneys made a bond recommendation in just 14 cases (54%).

The case concludes with the judge stating the bond decision; rarely do judges provide reasons for the decision. In the 26 cases observed, judges provided reasons for their decision in just 6 cases (23%); when providing reasons, judges tended to highlight the defendant’s criminal history, the charges in the case, and any other open cases the defendant may have. Before ending the hearing, however, the judge tells the defendant how to post bond if they are able and where to report after release.

Like Cook County, there was little overlap in the factors prosecutors, defense attorneys, and judges referenced in making arguments during bond hearings. In the 26 cases observed, the most frequent factors mentioned by prosecutors included the current charges (63% of cases), the impact of the crime on the victim (30%), and the strength of the evidence (7%). In contrast, the most frequent factors mentioned by defense attorneys included the defendant’s community ties (63%), the defendant’s current employment or education status (26%), and the defendant’s ability to pay bail (19%). As noted above, judges rarely provided any reasons for the bond court decision; when factors were mentioned, the most frequent included the defendant’s criminal history (22%), the charges in the case (4%), and any other open cases the defendant may have (4%).


How Are Bond Court Hearings Conducted in Winnebago County?

In Winnebago County, all bond court hearings occur in a single courtroom. A bond court hearing begins with the judge asking the defendant their name, inquiring if they understand English, and appointing an interpreter if necessary. The judge then asks the defendant if they understand their rights, the charges against them, and the potential penalties if found guilty and if they plan to hire a private attorney or if one is already present. If the defendant’s answer to the latter question is unclear, the judge asks the defendant’s employment status and their income to determine if a public defender can be appointed. The judge then asks the defendant or the defense attorney (this is dependent on the judge) if the defendant would like to waive their right to a reading of the charges; in the large majority of cases, the defendant waives their right to a reading of the charges and the bond hearing proceeds without charges against the defendant being read in open court.

The judge then asks the prosecution for a recommendation on bail and supporting reasons. The prosecution often avoids mentioning facts from the case, instead mentioning the defendant’s risk level, criminal history, and parole/probation status. In fact, it is the prosecution who reads the PSA score, even though all parties have access to the PSA report. The prosecution provides a bail recommendation in the largely majority of cases. In the 35 cases observed, the prosecution provided bail recommendations in 28 cases (80%), recommending an I-Bond in three cases, a D-Bond in 24 cases, and No Bail in one case.

Following the prosecution’s recommendation, the judge asks the defense for their recommendation on bail and supporting reasons. In most cases, the defense argues that releasing the defendant on bond would not be a risk to the community and notes the defendant’s connections to the community and employment status in support. In the 35 cases observed, defense attorneys made a bond recommendation in 26 cases (74%) – fewer than the prosecution. Interestingly, in 9 cases (26%) the defense attorney simply asked for “low” bail, without providing an exact bail amount.

The case concludes with the judge summarizing the recommendations from each party, providing their own bail decision, and sometimes including a justification for why it might differ from those given by the prosecution and defense. In the 35 cases observed, judges provided reasons for their decision in just 10 cases (29%); when providing reasons, judges tended to highlight the defendant’s risk level, prior criminal history, and parole/probation status. The judge then sets the next court date and often takes a short break before calling the next defendant.

Unlike Cook and Lake Counties, there was more overlap in the factors prosecutors and judges referenced in making arguments during bond hearings. In the 35 cases observed, the most frequent factors mentioned by prosecutors included the PSA score (47% of cases), the defendant’s prior criminal history (21%), and the defendant’s parole/probation status (16%). The most frequent factors mentioned by judges similarly included the PSA score (16% of cases), the defendant’s prior criminal history (5%), and the defendant’s parole/probation status (5%). Interestingly, defense attorneys also mentioned the PSA score (8% of cases), in addition to the defendant’s community ties (32%) and the defendant’s current employment or education status (8%).


How Are Bond Hearings Conducted in McLean County?

In McLean County, all bond hearings occur in a single courtroom. A bond court hearing begins with the judge calling the defendant and asking them their name. The judge reads the charges against the defendant and appoints the public defender. In none of the observed cases did a defendant have a private attorney present in their bond hearing.

The judge first asks the prosecution to state the case, asking if there is probable cause to detain. Prosecutors tend to only mention the facts of the case (what happened, any potential victims) at this point in the hearing. After this presentation, the judge asks the prosecution directly for a recommendation on bond, which they almost always give. Out of 33 cases observed, the prosecution made a recommendation in 28 cases (85%), recommending an I-Bond 4 times and a D-Bond 24 times. In the 33 observed cases, a No Bail bond was neither recommended by the prosecution nor imposed by the judge.

The judge then asks the defense for mitigation. Defense attorneys generally make note of the defendant’s ties to the community, inability to pay, and potential employment. After presenting this, the judge asks the defense for a recommendation on bond. In the 33 observed cases, the defense provided this recommendation in 28 cases (85%). In 68% of these cases (i.e., 19 out of these 28 cases), the defense asked for an I-Bond; in the remaining 32% (9 cases), they requested a “low” bond 4 times and a specific valued D-Bond 5 times.

In 5 cases neither the prosecution nor the defense provided a bond recommendation – all of which occurred on the same day. This lack of recommendation may judge-specific, meaning that a particular judge may not want or expect attorneys to make recommendations.

The case concludes with the judge returning to the prosecution, asking for anything further from the state. This is when prior criminal activity is mentioned. The judge then sets bond and very rarely states reasons – in only 4 cases (12%) did the judge mention any factors contributing to their decision. If the judge set an I-Bond, the judge told the defendant what they needed to do upon release to not violate bond and did not move on to the next case until the defendant gave assent to understanding the terms of release.

Like other counties, there was little overlap in the factors mentioned by the prosecutors, defense attorneys, and judges during argumentation for bond. In the 33 observed cases, the most frequently mentioned factor by the prosecution was the current charge (58%), followed by the impact on the victim (27%) and prior criminal history (24%). The defense, however, mentioned ties to the community (33%) and employment (24%) most frequently. As noted above, the judge rarely gave factors for their decision in setting bond. On the rare occasion that the judge mentioned a factor it was either the PSA score (6%) or prior activity (6%).

The PSA score was rarely mentioned at all in these hearings – either when cited as a factor in bond recommendations/decisions or read into the record by court actors; overall, the PSA score was mentioned in just 5 cases (15%).


How Do Bond Hearings Compare across Counties?

Bond hearings across all counties were relatively short. In Cook County, the median length of a bond hearing was 4 minutes per case, with some cases taking as little as 1 minute. In Lake and Winnebago Counties, hearings were slightly longer – a median of 5 minutes and 5.5 minutes per case, respectively; however, again, some cases took as little as 2 minutes to resolve. McLean County’s hearings were even shorter than those in Cook County, with the median case length being 3 minutes. Across all counties, more complex cases could take up to 18 to 24 minutes. For cases in which prosecutors requested No Bail (n=6), the median length of a bond hearing was 13 minutes. Under the PFA, for those cases where detention is sought, a second, subsequent detention hearing would occur. Thus, while the actual length of most bond hearings is relatively short, the PFA will likely require counties to expand capacity and adjust schedules to accommodate these additional, slightly longer hearings. Based on the hearings that involved requests for No Bail, these detention hearings may take roughly 13 minutes to complete.


Interestingly, despite differences in the frequency and type of recommendations made by court actors or the lengths of hearings, the actual bond court decisions across counties were very similar. In Cook and Lake Counties, roughly 70% of defendants received a C/D-Bond and 22% received an I-Bond; in Winnebago County, slightly fewer defendants (63%) received a C/D-Bond and more received an I-Bond (29%). In McLean County, no defendants received No Bail, and the percentage of I-Bonds was slightly higher than in the other counties (42%). Still in McLean County, the majority of defendants received a C/D-Bond (58%).


Bond amounts, however, varied across counties. In Cook County, for example, the median amount for a D-Bond was $1,000 (this reflects the amount a defendant would have to pay to secure release – 10% of the full bond amount), with some D-Bonds as low as $100 and some as high as $35,000. Median bond amounts in Winnebago County were slightly higher at $3,000, with some bonds as low as $200 and some as high as $30,000. Bond amounts in McLean County were similar to those in Winnebago County ($2,250), with some bonds as low as $200 or as high as $50,000. In contrast, median bond amounts in Lake County were $10,000 – significantly higher than the other three counties – with lowest bond amounts at $1,000 and the highest at $25,000.


Conclusion

Court observations reveal very different approaches to bond court hearings across the three counties. McLean County and Winnebago County were the only counties in which the prosecutor regularly recommended bond; in Cook and Lake Counties, the prosecutor generally made a recommendation only in the case of a petition for No Bail. In turn, the factors noted by prosecutors were similar across Cook, Lake, and McLean Counties – prosecutors tended to note the current offense and the impact of the crime on the victim; in Winnebago County, prosecutors rarely mentioned the current offense – in fact, the reading of the charges against the defendant was often waived and went unmentioned by all parties. Rather, in Winnebago County prosecutors tended to mention the PSA. Interestingly, across all four counties, the factors mentioned by prosecutors, defense attorneys, and judges rarely overlapped. Prosecutors tended to focus on offense factors, defense attorneys tended to focus on defendant community/employment factors, and judges tended to focus on risk, prior criminal history, and parole/probation status. Further, while the PFA requires that the “risk assessment tool may not be used as the sole basis to deny pretrial release,” from the observations it appeared that the risk assessment was not mentioned as a factor in determining bail in the majority of cases by the courtroom actors, and when reasons were given for the final bond court decision, the risk score was never the only factor cited. Nonetheless, the PSA score was discussed in nearly all cases in Cook, Lake, and Winnebago Counties, where it was read into the record at the start of the case by either the pretrial services officer, the judge, or the prosecution; the difference is that it was rarely cited as a factor when making the bond recommendation or decision. In contrast, the PSA was neither discussed nor cited as a factor in in the large majority of cases in McLean County.

Future analyses will examine the level of agreement between prosecutors’ and defense attorneys’ bond recommendations and the actual bond decision in each case; in this way, we may be able to produce a more accurate estimate of impact of different types of recommendations and different factors on bond outcomes.

Methodology

The data for this report consists of observations of bond court collected over three days in each county, except for McLean due to a lower amount of cases per day: Cook (June 20, June 27, and July 1, 2022), Lake (June 21, June 22, and July 6, 2022), Winnebago (June 28, June 29, and June 30, 2022), McLean (July 12, July 15, July 15, and July 18, 2022). In all four counties, bond court hearings were conducted virtually and attended virtually by court observers. For Cook and Lake Counties, the cases were observed from an anonymous, public livestream posted on YouTube. For Winnebago and McLean Counties, cases were observed by joining a bond court Zoom link. This means that in Winnebago and McLean Counties court actors were potentially aware that information was being collected through an outside observer, since they were able to see all parties logged onto the Zoom link. Aspects of the cases and hearings were collected using a structured data collection instrument that tracked information about the defendant, charges, factors mentioned by court actors, bond recommendations by prosecutors and defense attorneys, and the final bond decision by the judge.