Constable: Bail law a good measure you don't want to use

The Republicans and Democrats in Springfield finally came together to pass a piece of legislation this month that Gov. Bruce Rauner actually signed into law. But nobody wants to be in the position to use it.

That's because the "Bail Reform Act" applies only to people who have been charged with a crime. It urges judges to release people awaiting trial on lesser crimes when possible and requires a second bail hearing if the accused remains in jail after a week because he or she is too poor to post bail.

Reforming the way bail works is a good idea that was long overdue, says Samuel Partida Jr. of Aurora, a lawyer and former Kane County State's Attorney's Litigator of the Year and founder of who hosts The Criminal Nuggets Podcast.

"There's always confusion about bail and bond," Partida says.

Bail is money given to the court to hold until you show up at trial. Bond is a payment of 10 percent of that bail, which the court keeps with the threat of coming after you for the rest if you skip town. Illinois is one of a few states that don't allow third-party bondsmen to post that money, and it also bars bounty hunters.

"They had some skin in the game to assure that people would show up, but some got carried away with how enthusiastic some bondsmen were," Partida says, who notes reality TV star "Dog, The Bounty Hunter" can't work in Illinois.

The decision about whether a person accused of a crime should be confined in jail until his or her trial shouldn't be based on finances, says attorney Samuel Partida Jr., a former Kane County prosecutor who now works as a defense attorney and hosts a podcast on legal issues. Courtesy of Samuel Partida, Jr.

"While the notion of bail has been traced to ancient Rome, the American understanding of bail is derived from 1,000-year-old English roots," begins a history essay published by the Pretrial Justice Institute, which the U.S. Department of Justice first funded in 1977. Because people are presumed innocent under the law in the United States until they are convicted in a trial or plead guilty, it doesn't make sense to keep everybody behind bars until a court date becomes available.

"You've been accused of a crime, and the court is looking for some kind of assurance that you will come back," Partida says in explaining the value of bail, which has been tinkered with repeatedly since the federal Bail Reform Act of 1966.

In addition to simply providing a financial incentive for a person to come back for his or her trial, the law has been upgraded to allow judges to consider the severity of the crime, any threats to potential witnesses or any likelihood that the accused might commit another crime, obstruct justice or pose a danger to the community.

"Judges will tell you they know how to apply this wisely, but then you look at the numbers," Partida says, echoing a sentiment that our local county jails face overcrowding issues simply because people can't come up with the money for bail.

"We could come up with $500 if we had to," the attorney says, unwittingly making me check my bank account balance. "But a lot of people just can't."

He says the old bail system targeted "the low-hanging fruit" - a kid who has no criminal history, who has no money and is too embarrassed to call his mom.

In a May 21 episode of "60 Minutes," Cook County Sheriff Tom Dart called for an overhaul of the bail system, noting than many people spend more time in jail awaiting trial than they would if convicted. "On any given day we have probably 200 to 300 people that if they came up with $500, they would leave here," Dart said. While a shoplifter often doesn't have cash to get out of jail, a criminal gang member often does. A week in jail can cost an innocent person his job and his home.

"You have some individual who's in here who's never been a danger to anybody, he can't come up with a hundred dollars. He's sitting," Dart told "60 Minutes." "The guy with the gun, he's out the door."

While some counties depend on cash bond money to finance the courts, we shouldn't fund the legal process on the backs of poor people. So the Bail Reform Act is a good thing to come out of Springfield. Now, if legislators from both parties and our governor could just deliver us a budget.

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