By James G. WOODWARD

Information: the key to bail reform

Bail conditions other than money may be set by Illinois judges, according to a statutory provision that slipped through last year's legislative session without fanfare. The intent of the 1984 bail reform is to give equity to the system so that financial resources are not the sole criteria for granting bail to persons while awaiting trial. Left undone when the law was enacted was providing the court system with the means to gather the information a judge needs to determine whether an accused person is a reliable, trustworthy citizen of the community. Such pretrial services could also monitor the activities of those granted monetary bail. With the constitutional amendment on the November ballot proposing to allow judges more discretion in denying bail, the question of supplying them with more pretrial information reinforces the issue.

A veteran Illinois legislator is fond of a quip that he says captures the essence of the public policymaking process: In politics a problem is not a problem until it is a crisis, and a solution is not a solution until the media so label it. While this adage is decidedly cynical, experience teaches that lawmaking is an inherently reactive process. Effective policy change often lags years behind the advent of an issue, and a belated remedy sometimes falls altogether short of the mark, in part because public and media interest wanes.

An illustration of this political phenomenon is the bail reform effort that took hold and perhaps still lives in the 84th Illinois General Assembly. After an abbreviated foray through the legislative process in the closing days of last spring's session, a reform measure was enacted making significant but strikingly incomplete adjustments to Illinois bail practices. Effective reform is now within reach, but it will be achieved only if lawmakers' commitment to the task can be sustained, and if the notion does not take hold that the 1985 legislative changes completely resolved all the bail issues. Indeed, if the effort dies now, the criminal justice system may find itself saddled with a "solution" that is as troublesome as the problem.

To the casual observer the Illinois criminal justice system's flawed approach to bail seemed to bolt onto the scene in a series of investigative reports beginning with a front page story in the June 2, 1985, issue of the Chicago Tribune. In a sequence of reports published throughout the months of June and July the Tribune convincingly documented the injustice of a bail system that conditions pretrial release upon nothing more than the accused's ability to post cash as security for his or her promise to appear for trial at a later date.

Armed with the data from its own computer survey of nearly 6,000 Cook County felony defendants, the Tribune study revealed that lack of cash security resulted in the jailing of startling numbers of citizens on charges that did not ultimately result in convictions. But for more than 40 percent whose felony charges did end in convictions, the cash bail requirement was satisfied and release from custody pending trial was obtained. The Tribune authors also exposed the woeful inadequacies in the present system for controlling or even monitoring the conduct of persons released after posting cash bail, making it relatively easy for dangerous felony defendants to commit more crimes while awaiting trial. Virtually overnight, it seemed, the Tribune series had transformed Illinois' festering bail problems into a crisis worthy of immediate attention.

If the Tribune's credible expose raised public consciousness about the flaws in Illinois' bail practices and ignited political interest in seeking a solution, it succeeded where the concerted efforts of others had failed. For more than 20 years, Illinois legal scholars have probed and documented the innate problems associated with the practice of conditioning a criminal defendant's pretrial release exclusively on his or her ability to post cash bail. And Illinois judges, as the frontline officers charged with the responsibility for making bail decisions, have expended substantial collective energy studying those same problems and advocating specific solutions.

Consider, in particular, the endeavor of the Illinois Judicial Conference, a constitutionally sanctioned entity of the judicial branch of government, with a mandate "to consider the work of the courts and to suggest improvements in the administration of justice." Recognizing the need for an exhaustive analysis of Illinois bail practices, the Judicial Conference in the fall of 1976 commissioned a Study Committee on Bail Procedures to evaluate the administration of bail and submit recommendations for its improvement. Chaired by Cook County Circuit Judge Peter Bakakos, the committee was composed of Illinois judges having a collective wealth of experience with criminal justice issues.

While an insightful statistical analysis of cases from Cook County and 10 downstate circuits was an important component of its work, the study committee also held regional fact-finding sessions around the state to solicit information from lawyers, law enforcement agencies and other judges about the practical problems that plague the bail system. In its 1978 report and recommendations the committee addressed an array of bail issues with authority and offered credible suggestions for improving the system. If those findings and proposals fell on deaf political ears, perhaps the study committee's work facilitated subsequent inquiry and the intense media focus that the Tribune series brought to the bail issue in mid-1985.

Although it apparently took the Tribune series to pressure action on the bail issue, the legislative changes enacted in 1985 are undeniably rooted in the 1978 study committee recommendations for improving Illinois bail practices. Among the 11 proposals outlined in its report, the committee advocated a broad grant of authority to trial judges to impose pretrial release conditions designed to control and monitor a defendant's activities, for the dual purposes of assuring appearance at trial and of protecting the community from future criminal behavior. At the same time, the committee separately proposed that judges be required to consider all feasible conditions of pretrial release other than cash bail in order to forestall needless detention of indigent persons who pose neither a risk of flight nor danger to the community.

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Significant as these and a variety of other recommendations were, the study committee acknowledged that "one key to reform of the Illinois bail system is information." Verified information about an arrested person's solid community ties and stable work record would support his or her pretrial release without cash bail. On the other hand, if a judge is inclined to detain a person suspected of being a danger to the community, concrete facts about the accused's criminal propensities had better support that conclusion lest erroneous deprivations of liberty become commonplace. Beyond that, information about a released person's compliance with bail conditions must constantly flow into the court if the release conditions are to be enforced and violations punished by revocation of bond.

To provide this critical information and to facilitate informed bail decisions by judges, the committee urged that each judicial circuit establish a pretrial service program as an agency of the circuit court to gather and verify pretrial release information and to supervise compliance with release conditions. Without such an information service, the study committee concluded, significant progress with existing bail problems would be unlikely no matter what other reform measures would be enacted.

Lawmakers may have been slow in acknowledging bail reform as a priority matter after issuance of the 1978 report of the study committee, but all of that changed on June 24, 1985, just three weeks after the Tribune series had begun. Without a single public hearing by a committee of the House or Senate, a significant bail reform measure was tacked onto an innocuous and unrelated House bill (H.B. 704) that was near final passage in the Senate. Brief floor debate in the Senate uncovered some members' reservations about the constitutionality of the proposal, so a House-Senate Conference Committee was necessary to hammer out the final terms of the reform law. Nevertheless, the bill passed just eight days after it first surfaced in the General Assembly, receiving overwhelming support in both chambers. Gov. James R. Thompson signed the bill into law, making Public Act 84-945 effective on September 25, 1985.

The new bail law is noteworthy both for what it provides and for what it fails to provide. As evidence of a shifting emphasis toward nonmonetary conditions of pretrial release, the new statutory directive to trial judges is to set monetary bail "only when it is determined that no other conditions will reasonably assure the defendant's appearance in court." In response to complaints that trial judges lack authority to impose conditions of release designed to assure community safety and, in appropriate cases, to deny release to arrested persons who pose an especially grave risk to the community, the new bail law empowers the court to consider "the safety of any other person or the community" when setting conditions of release or the amount of bail. That new power may be employed either to fashion special restrictive conditions of release or effectively to deny release by setting bail prohibitively high when information shows that the safety of the community will be jeopardized if the offender is at large pending trial. Also integral to the new law is its provision authorizing judges to release a person prior to trial by placing him in the custody of a "designated person or organization agreeing to supervise his release." The intent, of course, is to provide the trial court with reliable "eyes and ears," thereby making pretrial release conditions truly enforceable.

No one ought to question the significance of these new powers bestowed upon the trial courts by the reform law. But there is a hollow quality to the achievement in view of the critical issue that has yet to be addressed. Information gathering services, independent of the prosecutor's and the defendant's influence but serving at the trial court's direction, are the fundamental need that must be satisfied if any of the new substantive powers are to be put to legitimate use by the courts. Creative use of pretrial release conditions other than money will be impossible if a trial judge has no access to or cannot rely upon information about an offender's background. And the danger to society is real that detaining persons deemed too risky to be at large pending trial is a power that could be seriously abused if the information supporting detention is faulty or unavailable to the judge.

Accurate, complete and timely information
is... a minimum prerequisite indispensable to
any exercise of the power to jail
persons not yet convicted

Rulings to jail persons not yet convicted of any offense could become commonplace. Consider the experience in the federal courts since the creation of preventive detention authority by the Comprehensive Crime Control Act of 1984. A recent U.S. Justice Department survey disclosed that motions filed by federal prosecutors to deny bail to allegedly dangerous defendants awaiting trial were granted by trial judges 82 percent of the time. That is an alarmingly high rate, even if those rulings were based upon the most accurate information, because psychiatric professionals consider predictions of future dangerousness to be very unsatisfactory and generally unreliable. Accurate, complete and timely information is, therefore, a minimum prerequisite indispensable to any exercise of the power to jail persons not yet convicted. To date, however, only the raw power to detain exists in Illinois law without the resources to exercise that power judiciously. In November, voters will have an opportunity to give constitutional sanction to even stronger preventive detention authority for judges by approving an amendment to the 1970 Illinois Constitution's bail section. Approval of that amendment will place powerful new emphasis on the need for an information gathering service in the circuit court.

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Much the same must be said of the trial judge's urgent need for supplemental court services to make a reality of the new statute's grant of authority to designate custodians as supervisors of persons released from jail prior to trial. The Judicial Conference Study Committee noted that, apart from the other important duties that could be assigned to pretrial service agencies, the agencies would be justified if their only role was to provide intensive supervision for persons released into their custody prior to trial. With proper staffing, Illinois courts could rely upon the new agencies to facilitate prosecutions for the seldom-enforced offence of criminal nonappearance, to notify the court promptly when the person awaiting trial commits any additional crimes and to make revocation of pretrial release a swift and certain result when specific terms and conditions are violated.

More than a change in the content of legislation will be necessary before there will be any real deterrent to a defendant's flight from the jurisdiction or continued misconduct while free on bail pending trial. Existing probation staffs have been able to provide only limited assistance with pretrial caseloads in the past, simply because few Illinois judicial circuits have had the personnel or the funds to provide the level of service that is demanded for a function that is collateral to the probation officer's primary post-trial responsibilities. If separate statutory sanction is granted for their new role in the criminal justice system, the pretrial service agencies should expect adequate funding and support based on the recent experience of Illinois post-trial services. The post-trial services have benefited from high levels of public and professional support and funding to the probation departments around the state that perform these services.

Has bail reform now run its course, and has public and media interest all been spent on this brief flurry of legislative activity? Some members of the Illinois General Assembly clearly have never regarded the 1985 legislation as anything more than the first step. Rep. Richard Mautino (D-74, Spring Valley), the House sponsor of the vehicle bill for the 1985 reform, said during floor debate that these measures only represent "a good first step." And lawmakers surely have not heard the last from Illinois judges on the subject of bail reform. In his 1986 legislative recommendations, Illinois Supreme Court Chief Justice William G. Clark urged the General Assembly to enact legislation creating state-funded pretrial service agencies. Rep. John Cullerton (D-7, Chicago) has introduced such a bill (H.B. 3573) in the 1986 session. The next phase, however, will be a more exacting test of the public's and politicians' commitment to true reform of Illinois' bail dilemma because it must involve a pledge of financial resources — perhaps as much as $10 million annually to fund pretrial service agencies in all 22 Illinois judicial circuits.

Those who believe the bail issue is or ought to be behind us have no doubt already noticed that a Chicago Tribune story published on January 19, 1986, labeled the 1985 bail legislation the solution to the shortcomings it had disclosed, noting that its June-July expose on the subject last year had been the catalyst for the prompt action of the General Assembly. Secure in that media pronouncement of success, public attention might be expected to fade just as some lawmakers' enthusiasm for bail reform probably will subside as they turn their attention to new priorities. But it is conceivable that the drive for pretrial services will be carried on in 1986 and beyond by a resolute band of criminal justice professionals, public officials, prison reform groups like the John Howard Association, as well as members of the general public who continue to witness and to suffer the consequences of an ineffective bail system that tries to function without essential support services. Those collective efforts are capable of keeping the programmatic side of bail reform near the top of the legislative agenda until the job is completed.

Cynics would do well to pay attention. Since public debate on the proposed constitutional amendment will precede the November general election, proponents of state-funded pretrial services will have a potent opportunity to make their case.

James G. Woodward is currently a staff attorney in the Administrative Office of the Illinois Courts. He has also served as majority counsel to the Illinois House Judiciary Committee. The views expressed in this article are his own and do not necessarily reflect those of the Illinois Supreme Court or the Administrative Office.

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