Bail

Chicago Judge Says His Bail Reforms Were a Success. But Independent Reviews Show Flaws and More Crimes.

Did Cook County overdo it and let too many dangerous defendants free?

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Chicago's bail reforms may not have had the rosy outcomes indicated by a top county judge's analysis, which independent researchers say is downplaying the new crimes that have resulted from allowing defendants to await trial outside of jail.

Those are the results of an analysis by a group of Chicago Tribune reporters in a new investigative piece as well as a just-published data analysis paper by University of Utah professors Paul Cassell and Richard Fowles.

In 2017, Cook County Chief Judge Timothy Evans implemented an order reforming how the Chicago area courts handled pretrial detention. The goal was to reduce the demands for cash bail, which tend to keep people trapped behind bars on the basis of poverty rather than risk. Cook County met its goal of detaining fewer defendants before their trials. The number of defendants who secured pretrial release between 2016 and 2018 jumped from 71.6 percent to 80.5 percent. When cash bail was ordered, the amount demanded was much lower than before. Cook County's jail population dropped from 7,443 to less than 6,000.

Last May, Evans released a report that showed releasing more defendants from jail did not put the community at greater risk of crime. A high proportion of defendants (83 percent) charged with felonies and released under the new system returned to court as ordered and did not commit new crimes while released. In all, Evans' report painted a positive picture that matched the narrative of those who support bail reform: That court systems in Cook County were accurately sorting defendants based on the risk they posed to public safety and their likelihood of showing up to trial, rather than simply leaving everyone in jail simply because they couldn't afford to pay what the courts ordered.

But further examination of Evans' data paints a less rosy picture. Last week, The Chicago Tribune reported that Evans' report left out hundreds of violent crime charges filed after the bail reforms were implemented. The reporters say he did this by including certain violent crimes (murder, attempted murder, non-negligent manslaughter, forcible rape, robbery, and aggravated battery) and excluding incidents like domestic violence, assault with a deadly weapon, battery, reckless homicide, and others. If Evans' report had included all these other crimes, the Chicago Tribune calculates the number of violent crimes allegedly committed by released defendants would jump from 147 to 578. The largest chunk of these charges—231 of them—were for domestic battery.

Furthermore, Evans' report stated that only three defendants who had been released under the new pretrial system had subsequently been charged with homicide. But the Tribune identified 21 defendants accused of murder who had been released during the 15 months of bail reform the report reviewed. Their exclusion from Evans' report is supposedly a result of incomplete records and some odd reporting decisions like only counting the first new charge a defendant received after being released (two of the defendants were arrested for another charge, then released, and then allegedly killed people); or not counting them because their initial charges weren't felonies (five murder defendants had been bonded out on misdemeanor charges).

In a separate review, Cassell and Fowles reanalyzed Evans' data and found other problems.

For one thing, there's a significant flaw in how Evans measured new crime charges prior to his bail reforms and afterward. When calculating the crime rate, Evans' report evaluated the "before" defendants for an average of 243 days and the "after" defendants for an average of just 154 days. This is a significant methodological problem because reducing the time frame in the post-reform evaluation gives these defendants less time to commit new crimes. Cassell and Fowles argue that this difference of nearly 100 days may well mean that, in actuality, the post-reform crime rate among those released might be even higher. Cassell and Fowles' report observes, "the second group will, other things being equal, undoubtedly commit fewer additional crimes simply because they have had less time to commit such crimes."

The two attempt to estimate what the crime rate might actually be if the report monitored the post-change pool for the same time frame. It's a challenging calculation, they note, because they couldn't find any studies showing month-to-month re-arrest rates among those released pretrial. So they used some modifications in stats from the Bureau of Justice Statistics for recidivism rates among those who have been released from prison, combined with some pretrial recidivism rates from Cook County's data. They conclude that in all likelihood, Cook County's report undercounted new crimes committed by released defendants by about 1,200. When they correct for the time frame, Cassell and Fowles estimate that there was actually a 45 percent increase in the number of new crimes caused by defendants who had been released.

It's important to make it clear that this is a mathematical model, and Cassell and Fowles aren't specifically detailing a bunch of concrete new crimes that have been committed by these defendants. But part of the problem here is that the court has been reluctant to share the data Evans used with Chicago Tribune reporters, which required the newspaper to file a petition with the Illinois Supreme Court. Evans has since agreed to share his data with the newspaper.

Cassell and Fowles write that their goal is not to kill off bail reforms or scare courts away from implementing them. Rather, they are concerned about biases in self-analysis that "always lurks when an entity implementing reform later studies whether that reform is successful. In this case, it appears that many dangers stemming from the court's expansion of pretrial release were not carefully assessed by the court's own subsequent study."

These kinds of independent assessments are extremely valuable in part because these reforms are still relatively new and they make a number of people very, very nervous. Part of that fear results from deliberate scaremongering by those who have a financial or political stake in protecting a harsh status quo, like bail bond companies and jail officials.

But as the Cassell and Fowles report notes, poorly managed pretrial reforms can backfire and cause additional harms. If you agree, for example, with the argument for reform—that it's a violation of a person's rights to keep them locked up before they're convicted only because they cannot pay bail—you must also consider the risk they pose to the rights of other people if they are released before trial. In a city like Chicago, it is mostly poor people whose rights are violated by the bail requirement and mostly poor people whose rights are violated by the defendants who commit additional crimes before their trials.

If, on the other hand, you make a utilitarian argument that keeping people locked up because they're too poor to pay bail but aren't dangerous is much more expensive than letting them return home, Cassell and Fowles note that the cost-benefit analysis changes if the person commits new crimes before trial. While there are established financial harms to pretrial detention (lost jobs and housing) and established benefits to letting them out to continue to work and care for families, the economic impact of a homicide wipes out the financial benefits of letting more people out of jail.

At some point, the cost of new crimes committed by a percentage of defendants free before trial financially outweighs the savings of freeing people who aren't dangerous. Data-driven bail reform is supposed to prevent a few bad defendants from spoiling it for everyone, yet Cassell and Fowles argue that it does not appear to be working as intended in Chicago: "Given equal weight to the benefits the pool of such defendants receive when compared to the costs inflicted on victims seems dubious."

The report ends not trying to bash reforms but warning that court systems need to really explore the impact of pretrial release data and make sure they're not perpetuating new harms: "To be sure, such pretrial release reforms can have significant benefits. But only if both benefits and costs are accurately measured can a sound decision be made about which way the scales tip and whether the 'reform' was truly an improvement."

Cassell wrote about the report's release over at The Volokh Conspiracy, hosted here at Reason.

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  1. I’d like to see them limit plea bargaining. Make the DA’s do some work . I’ll bet you’d see a lot of ticky tack ‘crimes’ dismissed.

    1. Yes, and include that no charges can be dropped. If you charge it, it must go to trial.

      Second, include the proposed sentence with each charge. Take that away from the judge. Let the jurors see the consequences.

      Third, balance the guilty and innocent charges. Subtract the acquitted charges from the guilty charges. If the net is negative, the DA’s office has to pay, out of their own budget, as much as the defendant lost while awaiting the verdict, prorated for as many years as the net shows. Example: if the defendant lost a job and house, say $400K over one year, and the acquitted charges were 10 years more than the convicted charges, the DA’s office pays the defendant $4M.

      Put some damned accountability back in the legal system!

      1. When was it accountable?

        1. England used to have private prosecution, and vaguely remember some punishment for false charges. But I could be wrong, and I know that’s not what you meant, Iand I should have left out “back”.

  2. Data driven reports [and “studies”] will always validate the opinions and exonerate actions of those who get to decide how the data is collected, choose which data is included, how the data is analyzed, and then report the conclusions. Always!

    And it’s always bulletproof so long as you deny anyone else the opportunity to look at it.

    Closely related to “It’s not the vote that counts, but those who count the votes.” ~ Disputed source, but nevertheless accurate.

    1. This happens in “gun violence research” all the time: bullshit research that always proves that guns are bad.

        1. What’s that?

          1. The death of us all.

          2. How dare you!

    2. There are lies, damn lies and statistics. The entire discipline of statistics is massaging numbers to make them say what you want them to say (or more accurately, what you’re being paid to make them say).

  3. How bad did this have to be for Reason to admit that Cook County’s bail reform might not have been a good idea? Or was it that Cassell was already writing about it at Volokh (as mentioned at the end of the piece), and Reason figured they might as well get out ahead of it.

    Bail reform or not, Chicago has had a bad crime problem for awhile now. And not just in the neighborhoods highlighted by sites like HeyJackass.com (seriously, it’s a great site for collating homicides and shootings in the Greater Chicago area), but things like ‘flash mobs’ on the Magnificent Mile. Flash mob being a nicer label than, ‘Crowd of minority juveniles who rob and assault anyone they come across, until CPD herds them onto Metra/CTA, where they go away until the next time.’

    Arrests? Where do you think you are?

    1. Prof. Cassell is an authoritarian clinger and enthusiastic cop succor who whines about Miranda, the exclusionary rule, the ACLU, etc. A faux libertarian’s faux libertarian.

  4. Whiskey
    Tango
    Foxtrot
    I thought the ‘no bail’ shit was supposed to be for non-violent types.
    Where are all the felonies coming from?

    Oh, wait. Chicago. democrats. Now I get it.

  5. The purpose of bail, or denying bail, or of charging a lot of bail, so much that, sometimes the person indicted can’t make bail and ends up being incarcerated, is to ensure that the indicted person shows up for their trial. A bail “reform” program that reduces the number of people who spend time in jail without reducing the number of people who show up for their trial is a success. It’s disturbing that Reason folk seem to think that an indictment can constitute “legal” proof that a person is likely to commit a crime, and thus can be locked up without being convicted of a crime.

    There are lots of way we could reduce crime that we don’t use. We could take the Mike Bloomberg approach and try to find as many ways as possible to harass, arrest, and indict young black men, and then deny them bail and lock them up until trial. Or we could make every young black man aged 15 to 25 wear an ankle bracelet that would monitor his whereabouts and maybe tase him if he stepped out of his designated neighborhood. We could monitor everyone, they way they do in China, or practically everyone, the way they do in the UK. But we don’t do things just because they work. Reason still cares about, you know, “freedom”, doesn’t it?

    1. “…A bail “reform” program that reduces the number of people who spend time in jail without reducing the number of people who show up for their trial is a success…”

      Perhaps, but 83% means some 17% didn’t bother. Some ‘success’.

  6. “Cook County Chief Judge Timothy Evans implemented an order reforming how the Chicago area courts handled pretrial detention.”

    Somebody remind me: why do we pay all that money for “Legislatures?”

    1. Because we need someone to cede all their authority to the executive and then whine about it, duh.

  7. This guy Evans – did he do some investigative work for IPCC?

  8. Let’s take this argument to its logical conclusion.

    If everyone was remanded without bail for every crime, I can guarantee crime would go down.

    Does that justify doing it? No. That’s what is really being argued here, that it’s ok to reduce crime by punishing people extra just for being poor. Why aren’t you arguing the rights of people not to be victimized by those who make bail? Oh right, because the criminal there has money, so that makes his rights more important.

  9. I didn’t sleep in a Holiday Inn Express last night, but I think there’s a flaw in both studies.

    Looking at crimes committed by people out of bail is more a measure of whether bail itself is beneficial to society. It’s a pretty straightforward measure: crimes committed (however this is determined) by people out on bail.

    But the debate here is over whether reducing cash bail is effective, so the study should look at crimes committed by those who were released who otherwise would not have been able to afford bail. And I don’t know how you would determined who would be in that group.

    And from the story, it doesn’t appear as if that was done.

  10. “Looking at crimes committed by people out of bail is more a measure of whether bail itself is beneficial to society.”

    That is flat out wrong. The function of bail and/or pretrial detention has nothing to do with preventing the defendant from committing more crimes.

    The purpose of bail and/or pretrial detention is to insure that the defendant shows up for trial. Full stop.

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  12. This article is a disturbing argument against due process. Of course, if you keep vast numbers of people in jail, they are less likely to commit crime on the streets. But that’s true whether they’re innocent or guilty. It’s an argument for keeping people in prison before they’re found guilty of any crimes. In fact, it’s an argument for keeping people in prison even if they’re found not guilty, since even people arrested for a crime are more likely to commit crimes in the future. A justice system should be based on justice, not guesses about the probability of future crimes.

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