Please consider this essay as a polite suggestion that common law and common sense might meet in arraignment court and form a productive relationship.
Even while statewide application of the Pretrial Fairness Act is on hold, a recurring question in criminal cases is what to do when a defendant again violates the law while out on a recognizance bond.
A review of media reports suggests some courts are already struggling with the question. In one recent case, a defendant was released on a recognizance bond, charged with a series of thefts. Within days, he was before the court on yet another charge.
The court then set a bond, requiring the defendant to post money in order to be released from custody. Of course, this presented two problems.
First, if the abolition of cash bail is upheld by the Illinois Supreme Court, a monetary condition of release will no longer be available. Second, imposing a cash-bail obligation even under the law that the new act would replace — if properly understood and applied — should be a rarity.
A valuable vestige of common law
When the Illinois Legislature first enacted the Illinois Criminal Code of 1961, it explicitly abolished — with one notable exception — common-law crimes (those traditionally recognized and defined by courts, instead of by a Legislature). That exception was to retain the common-law crime of criminal contempt of court.
It is particularly noteworthy that the Legis-
lature, in abolishing cash bail in the new law, explicitly retained a provision of the same statute regarding enforcement of bond conditions. Thus, even the new law continues to provide that the law is to be “liberally construed to effectuate the purpose of relying upon contempt of court proceedings or criminal sanctions instead of financial loss to assure the appearance of the defendant.
Addressing the 1961 Illinois Criminal Code in detail is beyond the scope of this essay. Nevertheless, several general rules of criminal contempt of court bear mention. They provide a sound legal basis for efficient and effective enforcement of recognizance bond orders beyond those provided in the Pretrial Fairness Act.
1. There is no right to a jury trial for misdemeanor contempt. Even so, what has been classified as misdemeanor contempt is punishable by up to six months in jail.
A defendant charged with misdemeanor criminal contempt does not have a right to a jury under the federal and Illinois constitutions. Instead, a judge determines whether the charge has been proven beyond a reasonable doubt. As in all criminal cases, the burden of proof is on the prosecution. A defendant is not required to prove innocence and retains the full panoply of procedural protections.
2. Violations of court orders are relatively easy to prove. By their nature, most cases of indirect criminal contempt are not complicated and can be proven with relative ease. This is particularly true in a case in which a defendant allegedly fails to appear in court as ordered. Some cases of indirect criminal contempt can be complicated. However, it is fair to say that the vast majority of cases stemming from a violation of a condition of release will be straightforward and easily proven.
3. A misdemeanor contempt docket can be fast, efficient and fair. Because a jury trial need not be scheduled, and because the cases are relatively simple, a docket for misdemeanor indirect criminal contempt is amenable to fast and efficient administration.
Most importantly, defendants who violate the conditions of their release — for example, by willfully failing to appear — can be expeditiously prosecuted and, if warranted, sentenced to jail. The administrative tasks, whether for prosecutors or judges, are not complicated. A state’s attorney’s office with adequate staffing and proper organization could easily make such cases a priority.
In addition, basic court management would allow such cases to be placed on a so-called “rocket docket.” An analogous process for probation revocations in place some years ago in an Illinois county included a standing administrative order directing that all cases on the docket be tried and resolved within 30 days of the defendant’s first appearance. The same could be easily implemented for misdemeanor contempt cases. Moreover, a faster timeline for would be feasible and reasonable.
4. Misdemeanor criminal contempt cases can aid pretrial oversight of recognizance bonds. A defendant convicted of misdemeanor contempt while free on a recognizance bond in a pending case can be sentenced to probation or up to six months in jail. In the run of cases, a court could order both: incarceration as a condition of probation.
The jail time need not be immediately imposed. Illinois law permits a court to hold such a sentence “in remission.” This permits the jail sentence to be used as a motivational tool; an incentive for an offender to comply with other terms.
Thus, a defendant could be sentenced to probation with a jail sentence held in remission. Among the conditions of the probation in the contempt case would be that the defendant comply with all conditions in the other case. From there, the court could set the case for periodic review to ensure that the defendant complies with the conditions of probation and the bond in the pending case. The advantage is that the court has the authority to summarily jail the defendant if he or she violates any condition.
The abolition of cash bail and monetary conditions of release by the Pretrial Fairness Act was not a mere matter of procedure. Instead, it was a conscious decision by the Illinois Legislature on an important substantive matter of social policy.
Whether that substantive policydecision was foolish or wise remains to be seen. In the meantime, any objective observer might well agree that there must be some principled, effective procedural means of reifying the twofold purpose of the new law and policy embedded in the act: to minimize pretrial incarceration while at the same time protecting the public.
The use of expedited misdemeanor criminal contempt prosecutions would serve that purpose and the public well. The legal process involved is relatively simple and would be easy to implement by prosecutors and judges alike.All that is needed is officials able and willing to look — and think — just a few steps ahead.