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Chicago Criminal Defense Attorney Discusses Recent Bail Reforms That Ease the Burden on Low Level Offenders

If you are arrested for a misdemeanor or felony in Cook County, the threat of incarceration likely tops your list of worrisome issues. However, a mere arrest does not mean that you have done anything wrong. A lawful arrest can be based on the low evidentiary standard of “probable cause,” but a conviction requires the prosecutor to establish every element of the charged criminal offense beyond a reasonable doubt. Many people arrested will have cases that end in dispositions other than a conviction, such as no charges filed, dismissal, acquittal, or diversion. Unfortunately, cases take time to be resolved, so many people in Cook County remain in custody while their case is pending. In this blog, we examine recent changes in the law that have reduced the risk of nonviolent, poor offenders being kept in custody from the time of their arrest until the disposition of their case.

The risk of being locked up for a crime you did not commit or serving a longer period than your sentence historically has been a problem in Cook County, which drew national attention until the Bail Reform Act was signed into law earlier this year. This issue was examined along with other problems with the Cook County jail in an episode of 60 Minutes. According to the program, more than a thousand people remained in custody awaiting the resolution of their criminal case for a period that exceeded their ultimate sentence. Cumulatively, people served over 222 years more than their sentences.

Overview of Illinois Bail System Prior to Reforms

Although many people assume that the way they secure their release from custody while their case is ongoing involves working with a bail bondsman, Illinois does not permit commercial bail bonds services. The bail system is the means used for individuals who have been arrested to secure their release from custody during the pendency of their criminal case. If the accused returns to court as promised, he or she will have their bail money returned less any fees or fines. In the event the accused fails to appear, the bail money will be forfeited. The posting of bail enables defendants to remain free while their cases are ongoing while also providing a financial incentive to return to court.

The judge determines the amount of bail based on factors like flight risk and any threat to public safety, but a bail schedule establishes fixed amounts for low-level, non-violent offenders. Since Illinois does not permit the use of bail bondsman, individuals required to post cash bond must use their own funds or funds from family or friends. This arrangement has created hardships for the poor while contributing to a serious overcrowding problem in Cook County jail.

This system has also turned the policies behind the bail system on their head. While one of the goals of the bail process is to allow individuals who do not pose a danger to others await trial out of custody, but gang members with violent records have obtained release from funds generated by illegal activities easier than poor, non-violent offenders.

Significant Changes under the Bail Reform Act

New legislation, refered to as the Bail Reform Act, contains several approaches to preventing prolonged incarceration of low level non-violent offenders. The most significant reform includes a policy that non-violent offenders accused of misdemeanors and lower level felonies should have bail that is not monetary. Under the new approach, judges are to consider bail alternatives, such as ankle bracelets, in-person reporting, curfews, mental health and drug treatment, and protective orders. This new policy constitutes a significant step away from forcing indigent defendants to remain in custody for months for minor offenses because they lack the funds to post bail. Prolonged incarceration that exceeds any jail time that would be implemented if an accused was convicted of a charged offense is unjust, but the unfairness reaches astounding levels when the accused is ultimately exonerated.

Although the reforms only include a presumption against cash bail for non-violent misdemeanors and low-level felonies, the law contains an additional safeguard for defendants. If a judge decides to require cash bail involving a low-level offense, the defendant is entitled to a rehearing on the issue within 7 days. Experienced Chicago criminal defense lawyers handle many bail hearings, so they understand the facts and considerations judges view as persuasive when considering bail.

Moving in the Right Direction – More Reforms Needed

While the changes have been lauded as a positive step toward reducing the overcrowding and unfairness caused by holding poor defendants until the conclusion of their case, criticism has been raised that the reforms do not go far enough. Cook County Sheriff Tom Dart reportedly declined to attend the signing ceremony because the reforms did not address issues related to gang members. Dart objected that street gangs can continue to post cash bail even though they are accused of violent offenses. Critics of the measure also noted that the law fails to address the high number of mental health patients in custody in Cook County jail. The facility has been referred to as the largest mental health treatment facility in the world by 60 Minutes and other media sources.

Working Diligently to Get You Out of Custody

If you are concerned about securing your release from custody through the bail process, Chicago criminal defense attorney David L. Freidberg can answer your questions and analyze your situation to determine the best way to pursue your release. We offer a free consultation, so contact us at 312-560-7100 or email us. Let us start protecting your future today! We are available 24/7 for your convenience.