Chicago, IL, May 1, 2013 — In courtrooms across Cook County, a Chicago Appleseed investigation has confirmed, defendants are being denied a public defense solely because they have posted bond to get out of jail. The denials come without a constitutionally required hearing on the defendant’s finances. In some cases, indigent defendants who post bond and do receive a public defense then have their bond money withheld to reimburse the Public Defender’s Office.

In letters to Chief Judge Timothy Evans, dated March 25, 2013 and April 22, 2013, Chicago Appleseed describes these issues in greater detail. But here is the basic pattern:

Typically at a preliminary hearing, which occurs between five and thirty days following arrest, the defendant’s name is called and he appears before the judge. The judge notes that the defendant has posted bond and then informs the defendant that, because he posted bond, he’ll need to find his own lawyer.

If the defendant indicates he has not yet retained an attorney, the judge will then recommend that he talk to (i.e., retain) a “bar attorney.” At bar attorney is a private criminal defense attorney who pays a fee to either the Chicago Bar Association or Cook County Bar Association for the privilege of waiting in courts in order to retain clients in need of representation. When a defendant retains a bar attorney, he typically guarantees payment by assigning his bond funds to that attorney.

Some individuals who post bond are still appointed a public defender. But when their case ends, they may then have their bond money withheld to repay the county for their defense.

Usually neither decision is accompanied by a hearing on the defendant’s finances. As a result, according to pro bono legal analysis conducted by law firm DLA Piper on behalf of Chicago Appleseed, both defendants and third parties who commonly post bond on their behalf have legal standing to litigate a number of constitutional and statutory violations. In fact, the Illinois appellate courts have heard many cases where defendants and their friends, family, or creditors, have accused trial courts across the state of improperly denying defendants of a public defense, or ordering payment for one. Thus, these practices expose Cook County to large-scale litigation.

In brief, Illinois appellate courts have found that trial courts may only deny an individual of a public defense after finding that the individual can afford a private attorney.

The Illinois Supreme Court has taken pains to point out that the principal stands in even the least sympathetic cases. As recently as last year, the Illinois Supreme Court vacated a $250 public defender fee levied against a man convicted of sexually assaulting a child in neighboring Lake County. The Court was unequivocal, writing in People v Gutierrez, “A public defender fee may be imposed only by the circuit court after notice and a hearing on the defendant’s ability to pay. We again remind the trial courts of their duty to hold such a hearing before imposing these fees, and we trust that we will not have to speak to this issue again.”

While our sources, which represent views of the defense, prosecution, and judiciary, reported to us that these practices are widespread, the exact number affected is not known. According to a WBEZ report, 116,000 individuals posted bond in 2010. It’s not clear how many of those 116,000 defendants were indigent and also denied a public defense–or ultimately ordered to reimburse a public defender–but the number is likely to be high.

These practices are born out of a more fundamental problem: courts routinely make financial decisions about defendants without first learning about their individual situations. Bonds are set, sentences issues, fines and costs levied, and retribution ordered without consideration of the how those orders might impact defendants differently, depending upon their financial situation.

To comply with the law and constitution, though, the court will need to pay more attention to defendants’ finances. As we noted to Chief Judge Evans last week, Illinois law does not require that courts conduct an indigency hearing in every case–only prior to refusing a public defense, or ordering reimbursement for one. In other words, Cook County may presume that a defendant cannot afford an attorney–but then it must provide one for him.

The following document includes our letters to Judge Evans and the DLA Piper memo on the legality of the practice: Cook County Bond Practices: Letters, Memo, and Docs.