A nationwide movement is afoot to reconsider the bonding and pretrial release systems that most states use.
In most cases, when criminal suspects are arrested, they are jailed immediately and indefinitely until they post bond. In most cases, the judge determines the amount according to the severity of the offense, the defendant’s criminal history, and perhaps a few other relevant factors. But according to the Justice Department and many advocacy groups, setting bond without regard to indigency violates the Fourteenth Amendment’s guarantee of due process of law. Furthermore, way back in 1983, the Supreme Court ruled that the Fourteenth Amendment forbids “punishing a person for his poverty.” Now, given rising incarceration costs and recent evidence that pretrial detention may increase crime, many jurisdictions are taking action. Kentucky, New Jersey, and New York City have all done away with the bond system, at least in large part.
An estimated two out of three inmates are in jail awaiting trial largely because they lack the funds to make bail.
Pretrial Release in Illinois
Although private bail bondsmen are illegal in The Prairie State, the bond system is still very much entrenched in local courts. It is important to be out of jail pending trial, and not just for the obvious personal reasons. Incarcerated defendants cannot participate in their own defense in any meaningful way and can consult with their attorneys only under limited and controlled times and circumstances.
There are basically three types of bond in Illinois:
- I Bond: A personal recognizance bond is essentially a promise to appear in court that is not secured by any money or property. Nonviolent, first-time offenders nearly always receive I bonds.
- D Bond: The defendant, or a third-party surety, must deposit 10% of the bail amount to be released. Most misdemeanors and felonies are D bond cases.
- C Bond: Defendants who are potentially violent or possible flight risks must post the entire amount in cash.
D and C bond funds are usually refundable after trial, although the county nearly always retains at least a 10% “processing fee.”
Federal Law
The Eighth Amendment states that “excessive bail shall not be required,” but offers no guidance as to what is an acceptable amount. Initially, the amount is usually based entirely on the offense; The practice in the Northern District is that they will not allow you to post a monetary amount for bond. One must either post property with an equity amount equal to the bond amount or the accused will be granted what is known as an OR bond, which is similar to an I Bond in state Courts.
To either reduce the amount of bond, or change the type of bond, an attorney will schedule a bond reduction hearing. At that hearing, the judge may consider a variety of factors, including:
- Presumed Amount: Essentially, the defendant must give the judge a compelling reason to lower the bond.
- Severity of the Offense: The thinking is that the worse the charge, the more likely it is that the defendant will flee the jurisdiction.
- Ties to the Community: This factor goes in the opposite direction, as defendants with jobs and relationships are less likely to run away.
- Safety Risk: Is the defendant a violent person who may harm witnesses or commit another dangerous crime?
The judge’s ruling may be appealable, in some cases.
Contact Diligent Attorneys
At Glasgow & Olsson, our Schaumburg lawyers get to work quickly, in order to provide a more effective defense. Contact us today for prompt assistance with a criminal case.