WOODSTOCK – McHenry County court officials are working to comply with a new state law that requires defense lawyers to be present at first appearance bail hearings and allows those who are jailed on low-level offenses to be freed without posting cash bail.
The Bail Reform Act seeks to deal with the problems faced by people who are charged with relatively minor crimes but remain jailed because they cannot come up with bail money.
Under previous laws, many nonviolent, low-level offenders would spend weeks or months, even years, in jail because they could not come up with the 10 percent down payment required to be released.
While the law is not set to take into effect until Jan. 1, many counties already have moved away from requiring cash bail.
DeKalb County has been working to move away from requiring defendants to post cash bail to be released since June 2014. Changes have included moving their bond call hearings from 8:45 a.m. to 1 p.m. to give employees in the DeKalb County Pre-Trial Services Department time to interview defendants and verify information that judges consider in setting bond.
DeKalb County court services supervisor Michael Venditti said the new law addresses a constitutional hearing during what he believes to be one of the most critical points of contact in the criminal justice system.
Venditti said pre-trial incarceration for more than a full day has a drastic negative effect on people. Those who are jailed before trial can lose their housing and jobs, and it can strain relationships with friends and family members.
“The decision as to how long someone will be sitting in jail has a tremendous impact on their future,” he said.
Anyone arrested in McHenry County and brought to the jail goes through rights court.
The court hearing, held at 8 a.m. Monday through Saturday in a room at the McHenry County Jail, is a relatively brief proceeding where the judge reads each defendant their rights, sets a bond amount and then gives the defendant a new court date to appear before the appropriate judge. At that time, if the defendant indicates that they are unable to hire a lawyer, the McHenry County Public Defender’s Office is appointed to the case.
No one from the McHenry County Public Defender’s Office is there for the hearing, and few private lawyers attend the morning bond call. Chief Public Defender Mark Cook said they have been unable to send someone each day because of staffing constraints.
The law now requires a member of the office to attend each hearing and be appointed even if someone does have the money to hire a lawyer but are unable to get a lawyer to represent them at the hearing when bond will be set.
McHenry County Chief Circuit Judge Michael Sullivan said several judges and court officials are in the process of meeting and determining how they will make changes to their first appearance court and other logistical problems.
While Sullivan said nothing has been finalized, he mentioned the possibility of changing the time and location of rights court to potentially call witnesses and have all parties present for bail hearings.
Cook said bail is not meant to be oppressive, and the new law affords rights to those who don’t have the funds to get out of jail.
“It’s never a good thing if someone is being held in jail because they can’t post bail,” Cook said.
Cook said having a lawyer present for a first appearance bail hearing makes it so that someone can argue on their client’s behalf, as opposed to a judge setting the amount based on the preliminary facts of the case and limited information about the defendant.
Judges are required to consider as many as 58 factors when setting bail – some of which include the risk to public safety, seriousness of the allegations, past criminal history, the defendant’s ties to the community and the likelihood the defendant will reappear in court.
Cash bail will not be required for people who are charged with nonviolent misdemeanors and some low-level felonies, according to the law. Some crimes that apply include theft, prostitution and driving under the influence or drug possession charges. Instead of being required to post a cash bail, courts will consider nonmonetary options, such as electronic home monitoring, curfews and orders of protection, designed to protect the public and make sure those accused return to court.
Even though some will not have to post bail, there still are costs associated with the nonmonetary options.
If a cash bail is set and the defendant is unable to post the bond, a rehearing for a bond reduction or reassessment must take place within seven days, according to the law.
Sullivan said he believes the new changes will just be a refinement to what the county is already doing. He also said the court has tried to keep records through the jail and the clerk’s office to ensure that they don’t have people sitting in custody for lengthy periods of time without bond hearings, adding that he believes they do a reasonable job.
“[The law] does have a good effect to keep people out of jail if the only reason they are there is because they can’t post the amount set,” he said.
McHenry County judges likely will continue to keep defendants they believe pose a danger to the community in jail before trial. Those currently held on higher cash bails include murder suspects such as Victor Romero-Palos and Ryan Yarber and suspected marijuana trafficker David Soskin. Romero-Palos is being held on $7 million bond, Yarber is being held on $5 million bond and Soskin is being held on $1 million bond.
Sullivan said while no one necessarily disagrees what the law has set out to do, it does create some headache when it comes to how the changes will be paid for.
“This was a big change,” Sullivan said. “It’s going to have some effects, hopefully mostly good, but it may have some negative effects from the funding side of things … We’ll just have to wait and see.”
Assistant State’s Attorney John Gibbons, who also heads the criminal division, said that while he understands the new law likely will alleviate jail overcrowding given the fact that fewer people may be jailed, he does not feel that’s necessarily a problem in McHenry County.
He said prosecutors will continue to argue that bond should be higher in some cases and lower in others depending on the situation. If nonmonetary conditions are set but are not being followed, the state’s attorney’s office has the opportunity to bring the defendant back in court and ask to increase or modify the bond.
Gibbons also said the changes will require his office to rearrange and reallocate resources.
Venditti also said he thinks financial resources should have been allocated in order to make these changes, especially for court systems in smaller counties, but some of the costs may be offset by the potential reduction in the number of people who are jailed.
“On a moral standpoint this change is definitely a step in the right direction, but it is unfortunate that no additional resources are tied to it for departments that are already struggling,” he said.