Criticism about Bail Reform and the Use of Electronic Monitoring Does Not Reflect the Facts or the Law

Released On 07/06/2021

In recent weeks, in response to tragic incidents of violence in Cook County, some public officials have criticized the courts, and, in particular, judicial decisions to impose electronic monitoring on some defendants rather than incarcerate them in Cook County Jail while they await trial. Both the public and elected and appointed officials must remember that bail reform, instituted by the Circuit Court of Cook County in 2017, is based on the constitutional principle that people should not be punished by imprisonment before they are tried, unless they pose a significant danger to the community. A person charged with a crime is presumed innocent under the law, and the U.S. Constitution states that “excessive bail” shall not be required. 

“Looking at individual tragic cases in isolation may contribute to the speculation that releasing individuals before trial rather than incarcerating them -- whether by placing them on Electronic Monitoring (EM) or other forms of supervision -- means an increase in crime,” said Chief Judge Evans. “But speculation based on isolated cases is not the same as reality based on a complete picture, and research has shown that bail reform has not led to an increase in crime.” 

Judge Evans pointed to a Loyola University study last November that confirmed a previous internal court report that bail reform has kept hundreds out of jail, while not contributing to a rise in crime, and saved Cook County residents from having to post more than $31 million in bail in just one six-month period. 

In deciding to release some individuals charged with crime to EM, judges are guided by looking at the criminal backgrounds of defendants before them. Only those individuals judged to pose a clear and present danger to society are kept in jail before trial. In determining whether to confine an individual before trial, or to set restrictions such as EM as a condition of release, judges consider multiple factors, including the facts of the case, input from the defense and prosecution, and the Public Safety Assessment (PSA) tool. This helps to assess danger to the public by calculating the risk of failure to appear, risk of new criminal activity and risk of new violent criminal activity. During the pandemic, judges have also had to balance the risks of incarceration to the health of jail detainees, corrections staff, and the greater community, with more traditional public safety considerations. EM is used throughout the country as an alternative to incarceration pre-trial. 

For new felony cases filed between October 1, 2017, and December 31, 2020, murder, attempted murder and reckless homicide accounted for 1.3%, or 1,150, out of 86,653 total assessed felony cases.  Of these cases, 181 defendants, or 15.7%, were released pretrial.  In just seven of those 181 cases did a suspect miss at least one court appearance. Eleven defendants (6%) were charged with a new offense pretrial, and of these, two were charged with violent offenses (1.1%). In other words, 94% of murder defendants released pretrial were not charged with any new crime, and about 99% were not charged with a new violent offense. Similarly, of all defendants released pretrial for all types of crimes, the total percentage who are charged with new violent offenses is less than 1%. Any violent crime is tragic. But depending on many factors, the slight risk of re-offense would not have justified jailing even some murder defendants while they awaited trial. Prison before trial deprives defendants, who are presumed innocent, of their right to prepare for a defense, while leading to job loss and other personal and financial difficulties. 


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