Cash Bail

Lawsuit Alleges Cook County Judges Routinely Set Cash Bail at Unaffordable Levels, Depriving Arrestees of Constitutional Right to Pretrial Liberty

Thousands of arrestees presumed innocent and eligible for pretrial release are being kept in Cook County Jail solely because they cannot afford to pay the amount of bail set by circuit court judges — a clear violation of their right to pretrial liberty and other constitutional rights, according to a class action lawsuit filed in the Circuit Court of Cook County.

A disproportionate share of these persons are African Americans, who are being discriminated against because of their race, which is a violation of the Illinois Civil Rights Act of 2003, the complaint states.

Defendants include Cook County Circuit Court Judge Leroy Martin, Jr., presiding judge of the Criminal Division; Cook County Circuit Court Judge E. Kenneth Wright, Jr., presiding judge of the Municipal Division; and three other judges who make release determinations in criminal cases.  Cook County Sheriff Tom Dart, who administers the Cook County Jail, is also named as the custodian of the wrongfully detained plaintiffs.   

“As a matter of practice, the Judicial Defendants impose financial conditions of release without making an inquiry into and findings concerning an arrestee’s ability to pay,” according to the complaint. “No alternative is provided for those arrestees who are unable to pay the amount ordered for their release from custody even though they are eligible for pretrial release.”

Illinois statutes mandate pre-trial release of all defendants, except for those charged with the most serious cases and in those cases where a judge determines a defendant’s release would “pose a real and present threat” to anyone’s safety. Although statutes also instruct judges to set bail in an amount “considerate of the financial ability of the accused,”  Cook County judges routinely do not conduct any form of inquiry into ability to pay. In the vast majority of cases in Cook County, judges require cash bail for release rather than releasing a defendant on their own recognizance or a less expensive and less restrictive option like electronic monitoring, according to the complaint.

“In addition to being unjustly deprived of their fundamental liberty interest, arrestees who are unable to secure a pretrial release from jail are also far more likely to be both convicted and sentenced more harshly in comparison to arrestees who obtained pretrial release,” the complaint states. “Those detained prior to trial are also more likely to lose their employment, housing and child custody, and they are also more likely to commit crimes in the future because of the documented criminogenic effects of even a few days in a jail cell after arrest. The results are devastating for the individuals, their families and communities — and for taxpayers of Cook County who are forced to pay for these unconstitutional, illegal, and completely unnecessary incarcerations.”

The plaintiffs are represented by attorneys from the Roderick and Solange MacArthur Justice Center; the Chicago law firm of Hughes Socol Piers Resnick & Dym, Ltd.; and the Civil Rights Corps, a non-profit organization based in Washington, DC.

PDF of complaint

PDF of motion for class certification

PDF of motion for preliminary injunction

Updated 10/16/16