Alawsuit filed in federal court over delayed bail hearings of Black Lives Matter protesters in Winnebago County has been fully briefed and is currently under advisement. Now the wait is on for a panel of judges from the U.S. Seventh Circuit Court of Appeals that heard the case to draft an opinion.
Over the summer of 2020, the plaintiffs in the case were arrested on a Friday evening and detained until bond court on Monday, the next regular business day. Adele Nicholas, the attorney representing the plaintiffs, said her clients were held for well over 48 hours without being brought in front of a judge.
“It’s notable that Winnebago County’s procedures are really an outlier, both in Illinois and around the nation,” said Nicholas. “In most jurisdictions, a person who is arrested by a police officer has an opportunity to be brought before a judge within 24 to 48 hours.”
The way it works in Winnebago County, if you're arrested on a Friday, you do not see a judge until after you've sat in jail for three nights—Friday night, Saturday night and Sunday night, and then you don't see a judge until Monday afternoon during the regular bond court.
Nicholas says court schedules look different even just a couple counties east.
“In Cook County, it's completely different,” said Nicholas. “If you are arrested on a Friday, you see a judge on Saturday morning and that judge will determine both whether there was probable cause to detain you and whether you're entitled to release on bail.”
But in Winnebago County, the defendants – in this case, the county and its own court system -- are arguing that this practice is constitutional because the judge is still making a probable cause determination within 48 hours, despite the detained person never actually appearing before the judge.
The plaintiffs’ argument is that the Fourth Amendment protects against unreasonable pretrial detention, and that the procedures observed in Winnebago County are simply insufficiently respectful of that right.
Pam Metzger is a professor of law at Southern Methodist University in Dallas whose work deals with early stage criminal procedure, and says that a delay in initial appearance can dramatically affect the lives of detained individuals.
“Think about all the things that are on your calendar for today, for tonight, for tomorrow. If you have an elderly parent you care for or a child and think about what would happen if you just disappeared for a minute,” said Metzger. “Now imagine that disappearance stretching on for an hour for two for 24 hours, 48, 72 hours, just the fact of an arrest and a booking has catastrophic consequences for people and their families.”
Metzger adds that an initial appearance should offer an opportunity for the arrested person not only to learn about their rights, but to have an opportunity to exercise them. That means that a judge or a magistrate explains to that person all the protections that the Constitution provides in a setting where the person who's been accused has a chance to exercise those rights. But in Winnebago County, if you’re arrested on a Friday evening, you may not get that chance—for at least 48 hours.
“Apparently, speaking to someone who's been arrested, telling them about their rights, helping them get a lawyer, helping them get out of jail and back to their families is not important enough to make someone come into court on a weekend, and sit on the bench and do their job, and advise that person of their rights,” Metzger said.
A report published this year, co-authored by Metzger, found that a delay in initial appearance will translate to a delay in pretrial release–which can mean a lifetime of consequence for detained individuals ranging from loss of income, housing, and even hastily pleading guilty ever receiving counsel.
Seven of the eight plaintiffs were released on what's called an I-bond, which is an individual recognizance bond. So there was no controversy about whether they were entitled to release on bail. It was that they didn't even have the opportunity to ask for three days. Nicholas says that the question now is whether the Fourth Amendment protects the right to be brought in front of a judge for a bail hearing within 48 hours of arrest.
The appeals court panel heard the case last week and is now drafting an opinion, Nicholas says there’s no set timeline.
“I've seen it happen as quickly as a week or as long as a year after the case is argued,” said Nicholas. “So it's a little unpredictable how quickly we'll have a decision.”
Until then, the plaintiffs – once again – will have to wait.