Judge Rules That Bail Must Be Based on Defendant’s Income

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An order was issued by the chief judge of the Circuit Court of Cook County in Illinois stating that judges in Chicago must set bail in amounts based on the defendant’s “present ability to pay the amount necessary.” This means the required funds cannot exceed what a person can reasonably be expected to pay.

As reported by the New York Times, judges will still have the ability to set bail to help ensure defendants appear for their court dates. However, the amount required cannot be so high as to prevent people from being able to pay for their release.

Bail-reform advocates hope the decision will help move the nation forward by ensuring defendants aren’t forced to remain in jail for the months or years it can take to hold a trial, reach a plea bargain, or achieve a dismissal. At this time, the majority of defendants who cannot afford bail must be held until their cases are resolved.

The order issued by Judge Timothy C. Evans is considered an effort to remedy inequities in the criminal justice system regarding who is released based solely on their ability to post bail.

Chief policy officer for the Cook County Sheriff, Cara Smith, stated the order was a “positive step.” Kim Foxx, the Cook County state attorney, also supported the order, saying it was “important guidance for the judiciary and the entire criminal justice system on the need to reduce our reliance on monetary bond.”

Executive Director and Founder of Civil Rights Corps, Alec Karakatsanis, said, “Chicago is now the largest place in the country to eradicate wealth-based detention.”

Under Judge Evans’ order, Chicago judges will have the option to release defendants based on a pledge to appear in court as required and can still deny bail to those deemed to be flight risks or a potential danger to the community.

Typically, defendants with bail set are required to provide 10 percent of the bond. Many can’t afford the necessary payment when bail is set in amounts of $50,000 to $100,000+.

A report by the Chicago Tribune last year stated as many as 300 people incarcerated in Cook County Jail were there simply because they could not afford the $100 necessary to post bail. Bail reform advocates estimate almost half a million individuals are in jail across the country because they can’t afford to post bail.

Similar actions have also taken place around the country. For example, a Houston-based federal judge ruled that Harris County could not keep individuals arrested for a misdemeanor in jail solely because they couldn’t afford bail. Lee H. Rosenthal, the judge who issued the ruling, stated the requirement violated “equal protection rights against wealth-based discrimination.”

Some prosecutors across the nation oppose changes similar to those in Judge Evans’ order, believing the revisions make it more challenging to protect the public. The bail bonds industry also generally opposes such reforms.