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Fate of lawsuit over cash bail system, criticized for hurting poor, could be decided Monday

Monday, September 11, 2017
Chicago Tribune
by Steve Schmadeke,

A pivotal hearing Monday could decide the fate of a lawsuit aimed at revamping Cook County's cash bail system, which has been criticized for systematically keeping poor and minority suspects accused of minor offenses languishing behind bars for months and even years at taxpayer expense.

For some time now, a national debate has been underway over how bond is set for those accused in low-level offenses. After a suspect is charged with a crime, a judge decides whether he or she should be released pending trial or required to pay a certain amount of money to get out of jail. In general, bonds are higher for more severe offenses, and in some cases, judges deny bail altogether.

Last fall, lawyers at Northwestern University's Roderick and Solange MacArthur Justice Center sued in circuit court, alleging that criminal court judges routinely set cash bail at unaffordable levels, depriving suspects of their constitutional right to pretrial liberty.

The lawsuit against five Cook County judges, including the chief judges who preside over criminal court and bond courts and three Central Bond Court judges, was on behalf of two defendants, Zachary Robinson and Michael Lewis, who were required to post cash to win their release. The original lawsuit, filed on the heels of similar class actions in eight other states, also named Cook County Sheriff Tom Dart, who operates the jail, but his office was later dismissed from the litigation by the plaintiffs.

"The case presents a fundamental principle that Cook County and the state of Illinois have flouted for decades — that principle is that it's not only unconstitutional but morally repugnant to imprison a presumptively innocent person, someone who hasn't been convicted of anything, simply because he's too poor to buy his way out of jail," attorney Locke Bowman said Friday.

Nationally, legal challenges to the cash bail system have had some success. Last spring, a federal judge in Houston ordered the county to stop its unconstitutional detention of defendants held on misdemeanor charges simply because they could not afford to make bail. Harris County — now recovering from Hurricane Harvey — is appealing the ruling.

Here in Illinois, lawyers with the attorney general's office, which is representing the judges, have said in court papers that the changes in state law and Cook County bail procedures over the past year have rendered the lawsuit moot. They include:

•A new state law, called the Bail Reform Act, that took effect in June calls on judges to generally find an alternative to cash bail in cases where someone is accused in a nonviolent crime. That could include releasing a suspect on home electronic monitoring as they await trial. It also allows low-level offenders previously held on a cash bond to get a new hearing and any defendant held on monetary bond to get a rehearing within seven days.

•An order issued by Cook County Chief Judge Tim Evans in July, meant to dovetail with the new state law. It not only creates a presumption that cash bail won't be used, but prohibits judges from setting cash bail at a higher amount than nonviolent defendants can afford to pay. It takes effect for all felony cases on Sept. 18 and for all cases on the first day of 2018.

Additionally, Cook County State's Attorney Kim Foxx, whose office is not part of the lawsuit, has ordered prosecutors to stop opposing the release of some nonviolent detainees held on bails of less than $1,000. She also dramatically raised the bar for charging people with retail theft and stopped prosecuting certain types of traffic cases.

A message left Friday for a spokeswoman for the attorney general's office was not returned.

But during what's expected to be an important hearing on the case Monday afternoon, the AG's office is likely to raise those points as it asks a judge to toss the case.

Indeed, attorneys for the judges already have argued that the lawsuit is an improper sideways attack on the criminal courts' jurisdiction, that the claims against individual judges are barred by law and that the plaintiffs have no legal standing to sue.

The members of Northwestern's legal team want to proceed with the lawsuit, arguing that a court decision will cement what they see as piecemeal policy changes.

Bowman "applauded" Evans' order but said there are serious questions about whether it constitutes a permanent change.

"We doubt that if challenged, Judge Evans' order would stand up in court because there's a serious issue as to whether it's beyond his authority," Bowman said, adding that Evans or his successor could also revoke the order at any time.

Judge Celia Gamrath, a former family law attorney who has been on the bench for about seven years, is presiding over the case. She could rule as soon as Monday on whether the lawsuit will be thrown out or set for a hearing.

Lewis, one of the plaintiffs, was arrested for retail theft last fall after allegedly stealing a handbag and high heels from a Michigan Avenue Saks Fifth Avenue, court records show. He appeared before bond court Judge Adam Bourgeois Jr., who set bail at $50,000 — meaning Lewis had to pay $5,000 to be released — after hearing about Lewis' criminal history and past failures to appear, court records show.

Now 41, he pleaded guilty in March and was sentenced to a year in prison with credit for 179 days served.

Robinson, now 26, charged in December 2015 with stealing a laptop from his college, Kennedy-King, while on parole for a marijuana case, was ordered held by bond court Judge Peggy Chiampas on $10,000 bail after hearing he had three prior felony convictions. His subsequent motions to be released on electronic monitoring were denied but in October 2016 he was able to post $1,000 to win his release, court records show.

"I can't work while I'm here and I have nobody to post it," Robinson told a judge at another hearing, court records show.

He pleaded guilty in July and was sentenced to one year in prison, with credit for the 357 days he spent locked up, records show.

sschmadeke@chicagotribune.com

Twitter @SteveSchmadeke



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