Taking away someone’s freedom while they are presumed innocent is one of the most serious restrictions on liberty that the government can impose. That’s why the U.S. Supreme Court has previously said people should only be jailed while awaiting trial after such action has been found necessary through a robust, individualized hearing process—a bond hearing. In Winnebago County, Illinois, however, people arrested on Fridays or over holiday weekends are not being given bond hearings for several days. Winnebago County Jail is the second largest jail in Illinois, currently incarcerating over 700 people on any given day.

Last summer, a lawsuit was filed on behalf of Black Lives Matter protesters in Winnebago County who found themselves jailed for three days without bond hearings after being arrested at a demonstration on a Friday evening. While that lawsuit was dismissed by the lower court, their attorneys have now filed an appeal with the Seventh Circuit Court of Appeals. Eleven member organizations of the Illinois Network for Pretrial Justice joined several faith and community organizations in Winnebago County to file an amicus brief in support of the plaintiffs and the right to bond hearings within 48 hours of arrest. We thank Civil Rights Corps and Hughes Socol Piers Resnick & Dym, Ltd for their assistance drafting the amicus.

The federal judge who dismissed the lawsuit cited the fact that the Winnebago County courts do hold probable cause hearings over the phone within 48 hours. These hearings, however, occur ex parte, which means the accused people and their attorneys are not present. The appeal argues that these hearings are constitutionally inadequate because they establish only the low threshold of probable cause. The plaintiffs and their amicus supporters argue that accused people must be brought in front of a judge within 48 hours of arrest and given a full bond hearing with the possibility of pretrial release. Notably, each of the lawsuit plaintiffs were ultimately released without having to pay a bond once they were given the opportunity to appear in front of a judge for their bond hearing, a common occurrence for people in this situation. 

Any time spent in police or jail custody can have a detrimental impact on a person’s stability and health. Studies have shown that people incarcerated for as little as 48 hours are more likely to be rearrested and or miss a court date than people released within 24 hours of their arrest. Being jailed over the weekend can also cause a person to miss work, and, in turn, lose their employment. When a parent is incarcerated for an extra day or days, the health and safety of their child is put in jeopardy. Short of taking a person’s life, caging a person is the most serious punishment inflicted by the United States’ criminal legal system. And that is exactly why the constitution contains multiple protections to ensure that a person’s freedom is not taken without proper procedural protections.

This routine injustice in Winnebago County is yet another example of why Illinois’ pretrial justice system needs urgent reform. Earlier this year, the Illinois legislature passed the Pretrial Fairness Act to abolish money bond and transform the state’s pretrial system by ensuring that access to money plays no role in release decisions. In doing so, the legislature has also ended the unjustifiable denial of freedom created by wealth-based pretrial incarceration. It is time for Winnebago County to end its unjustifiable denial of freedom by granting everyone arrested a bond hearing within 48 hours of arrest.