Chief Judge Timothy C. Evans responded Jan. 19 to Chicago Mayor Lori Lightfoot's request for a moratorium on use of electronic monitoring for defendants accused of certain violent crimes by pointing out the national and state constitutional issues raised by imprisoning people before they are convicted of anything. The chief judge also noted multiple problems with the data the mayor provided to back up her request.
The chief judge also pledged continued cooperation with the mayor and the police superintendent in the interests of promoting public safety.
"Regarding your letter of December 29, 2021, I respectfully disagree that the automatic detention in jail of defendants facing certain categories of charges is a constitutional practice under the United States and Illinois constitutions," Judge Evans wrote. "Pretrial detention serves a legitimate purpose, preventing the serious risk of committing crimes while on pretrial release… Its purpose is not, however, to punish preemptively, by depriving people of their liberty for crimes for which they have not yet been convicted."
To promote public safety, the court continues to collaborate with the City of Chicago Department of Family and Support Services (DFSS), the SCaN program, and the Courage to Change program to access additional programming for young people involved in the court system, Judge Evans said. The court's Juvenile Probation and Court Services Department has referred more than 200 youth to SCaN providers since March 2021. Also, DFSS's One Summer Chicago program has been an integral component of summer programming for court-involved children for at least the past five years.
One aspect of DFSS programming is the Trauma-Informed Centers of Care Network. "We will coordinate with this network of clinics and behavioral health providers to respond to the trauma affecting most court-active young people," Judge Evans said in the letter. He said that the court welcomes the chance to continue and strengthen these partnerships, and that he has appointed attorney Diane Walsh of the Juvenile Justice Division as the representative to the mayor's working group on this issue. Judge Evans also noted a recent meeting between Chicago Police Superintendent David Brown, judges, and members of the state's attorney's and the public defender's offices, which included discussion of improving communication between police, the courts, and attorneys, and the appointment of court liaisons.
Judge Evans acknowledged the tragic wave of violent crime in the past year that has afflicted Chicago and other American cities. However, he said that there is no evidence that individuals released from pretrial detention are driving this wave of violence, which, since the beginning of the COVID-19 pandemic, has struck both cities like Chicago that have undergone bail reform and cities that have not.
Judge Evans wrote that if, after a judge hears specific facts of the case, the presumption is determined to be great that an individual is guilty of the crime, that he or she poses a danger to any person if released pretrial, and that no condition or combination of conditions of pretrial release can reasonably assure the physical safety of other persons, then he or she may be detained. In fact, the vast (969 of 1150, 86%) of defendants charged with murder or attempted murder in Cook County between October 2019 and September 2021 were detained in jail for the duration of their case.
However, for 19 percent (6,039) of the 31,946 cases disposed between October 2017 and November 2021 in which the top charge was an offense listed in the mayor's letter, it was determined through due process of law that the evidence was insufficient even to prosecute them; an additional 1,168 (3.7%) were found not guilty at trial. Those who were detained in jail but not convicted were deprived of liberty without having been found guilty of the charges, and were unable to pursue education, work, or support their families while in jail.
Between October 2017 and November 2021, the Circuit Court of Cook County adjudicated 25,359 cases in which the defendant was charged with one or more of the offenses listed in the mayor's letter. In 24,191 (95%) of those cases, defendants were convicted. These individuals were held legally accountable for their illegal activity with sentences to prison terms ranging from an average of 3 years for weapons possession to an average of 27 years for murder and attempted murder.
"At all stages of the justice system, the adjudicator must be unbiased," Judge Evans wrote. "In our justice system, the accuser is not the adjudicator; a judge, not a prosecutor or law enforcement official, must decide whether an individual shall be deprived of his or her liberty."
The law requires that defendants shall be released on the least restrictive conditions that will reasonably ensure they will appear in court, and that will reasonably protect the community, witnesses, victims or any other person. Research by the Illinois Criminal Justice Information Authority has shown that restrictive conditions such as house arrest on electronic monitoring (EM) should be reserved for higher risk offenders.
The seriousness of the charge does not always reflect the underlying risk of failure to appear or danger to the community, Judge Evans wrote. The number of arrests for new crimes by individuals on pretrial EM is relevant for evaluating whether the program is effective. An independent study in 2020 by the University of Chicago Crime Lab found that more than 95 percent of individuals with gun-related charges released in Chicago on EM were not arrested for a new crime during the year following their release. Of the small minority (less than 5%) of individuals released on EM pretrial who were rearrested, the majority were accused of committing a misdemeanor. The same study found that rearrests on gun charges among this population (pretrial defendants released on EM) represented less than one percent of gun arrests in Chicago during the period.
"As I have stated previously, I do not believe EM is the most effective way to prevent offending while on pretrial release. I believe programs providing cognitive behavioral therapy are a better means of bringing about long-lasting changes in individual behavior," Judge Evans wrote. "Such programs are already in place, but should be greatly expanded. I welcome additional discussion of ways to fund effective programming for people on pretrial release, to attain our shared objective of a safe and peaceful community."
The research staff for the Office of the Chief Judge found numerous problems with the data Mayor Lightfoot submitted to support her argument for a moratorium on EM. For example, the research staff examined electronic court docket records and found that, for 5 of the 15 individuals who the mayor's list indicated were arrested for murder in 2021, the alleged murders occurred in 2020, at a time when the defendants were not on EM. A sixth was placed on EM for a violent offense, and then arrested on murder charges stemming from the same violent incident, not for a new pretrial crime. Issues with the data the chief judge's office received also were discovered in an independent study by Chicago Tribune reporters. www.chicagotribune.com/news/criminal-justice/ct-em-data-misleading-20220114-5i4sngpfszfgfdmgt5zytzfghe-story.html .
The chief judge's office was unable to find a court filing for murder for five of the cases cited in the mayor's request. Among new arrests listed for Unlawful Use of a Weapon (gun possession), Aggravated UUW, Felon in Possession of a Weapon, Armed Habitual Criminal (a gun possession charge), and Vehicular Hijacking, the chief judge's research staff similarly found defendants originally released with nonviolent drug charges and defendants not on EM at the time of the arrest, and were unable to find others.
A list of the charges facing the current defendants on the curfew program may be found on the court's website at www.cookcountycourt.org/ABOUT-THE-COURT/Office-of-the-Chief-Judge/Court-Statistics-and-Reports. In addition, the Office of the Chief Judge publishes a dashboard of quarterly bond court performance measures that include a snapshot of the sheriff's EM population. This dashboard has been nationally recognized as providing a comprehensive picture of pretrial release in Cook County, and would be the appropriate place to publish statistics on the pretrial curfew population moving forward.