Cook County state’s attorney: The electronic monitoring system is broken

Illinois became the first state in the nation to abolish cash bail under the SAFE-T Act, also known as the Pretrial Fairness Act. It was a seminal piece of legislation that fundamentally changed how we determine who should be detained before trial.

Previously, judges would set monetary bonds largely based on the seriousness of the offense. Under the Pretrial Fairness Act, with money no longer a part of the process, the critical question is whether the defendant poses a danger to the public.

That makes sense. If someone is dangerous, they should not be able to buy their way out of jail. At the same time, someone who is not dangerous should not be incarcerated before being found guilty or not guilty, simply because they cannot afford to post bond.

I strongly believe in this core principle of the law: Pretrial detention should be based on dangerousness, not wealth.

But an unsettling trend has emerged in Cook County. Our electronic monitoring population has grown from fewer than 500 defendants in 2010 to roughly 3,000 today. We now have more people on electronic monitoring than any other jurisdiction in the country — including Los Angeles and New York City.

Faced with the choice between detention and release, judges have increasingly used electronic monitoring as a third option to split the difference. The problem is that electronic monitoring is not detention, and it should not be treated as an appropriate alternative when someone poses a danger to the public.

Over the last several months, we have repeatedly seen defendants charged with violent crimes placed on monitoring over the state’s attorney’s vigorous objections. There is no statutory limit on electronic monitoring eligibility, meaning defendants charged with the most serious crimes — including murder, sex offenses, robbery and crimes against children — can be placed on monitoring. As of Aug. 7, 79 people charged with murder or attempted murder and 154 people charged with sex crimes, including sex crimes against children, were on electronic monitoring.

This is a dramatic departure from the original purpose of electronic monitoring. When it was introduced in 1989, electronic monitoring was intended as a temporary way to address jail overcrowding, and it was reserved for lower-level offenses. Its expansion to defendants accused of violent crimes creates an unacceptable risk to our communities.

The problems are compounded by the structure of the current system.

Most people on electronic monitoring regardless of the charge are permitted periods of unrestricted movement during which their location is not actively monitored. That creates obvious risks to victims and witnesses who are participating in our prosecutions.

Even more troubling, judges can grant different movement schedules based on individual requests. One defendant might be permitted movement Monday morning, Tuesday afternoon and Wednesday midday, while another has an entirely different schedule. With thousands of defendants and countless individualized schedules, effective oversight becomes extraordinarily difficult.

The Cook County sheriff previously had 175 sworn law enforcement officers overseeing electronic monitoring. If someone cut off a monitoring device or was somewhere they were not permitted to be, the sheriff’s officers could swiftly locate that person and bring them into court.

But effective this year, responsibility for electronic monitoring has moved under the Office of Chief Judge, in accordance with the statute. Under the current system, pretrial service employees, not sworn law enforcement officers, oversee compliance. These employees do not have the authority to arrest someone who violates the conditions of electronic monitoring. The only thing they can do is report the violation to the court, and a judge may or may not then issue a warrant.

Of the 3,000 defendants currently on electronic monitoring, the chief judge’s statistics indicate that more than 327 are currently missing, meaning no one has any idea where they are. This is concerning in any case. But when the missing defendant is charged with a violent offense, the public’s safety is in jeopardy.

There is yet another flaw in the system. Defendants receive day-for-day sentencing credit while on electronic monitoring, the same as if they were in custody. This can provide a motive to delay any trial as long as possible. When a defendant can avoid resolving their case, they minimize any time that they may eventually be sentenced to jail.

A perfect example of this is the case of Thomas Martel, who pleaded guilty this year to animal torture and aggravated cruelty to animals for torturing and killing multiple kittens. He accepted a plea offer of 4½ years after he had accrued sufficient credit while living at his family’s suburban home on electronic monitoring, according to media reports. He served less than a day of that sentence in prison.

These are problems that demand permanent solutions. While I applaud Chief Judge Charles Beach’s recent efforts to strengthen electronic monitoring, the fundamental flaws with electronic monitoring are intractable failures that predate his tenure and require legislative action.

We have already seen the worst-case scenarios. Chicago police Officer John Bartholomew was shot and killed by a violent offender who was placed on electronic monitoring over the prosecution’s objection. A young woman riding a Blue Line train was set on fire by a defendant who had been placed on electronic monitoring over the prosecution’s objection.

These are not arguments against the Pretrial Fairness Act. They are arguments for making it work as intended.

I have spent my career on every side of the criminal justice system — as a prosecutor, as a criminal defense attorney, as a Circuit Court judge and as an Appellate Court justice. I believe deeply in our justice system and also in our responsibility to make it work for everyone, including victims of crime.

We do not have to choose between fairness and public safety. We can have both. But our current electronic monitoring system undermines those goals when it is used as a substitute for detention of dangerous defendants.

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The Pretrial Fairness Act was founded on a sound principle. Detain people because they are dangerous, not because they are poor. We should honor that principle.

When someone is dangerous, our laws should ensure that person is actually detained.

Eileen Burke is the Cook County state’s attorney and a retired appellate court justice.

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