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A key role of the Illinois Supreme Court is to issue orders and promulgate rules that make the local courts fairer, more effective and efficient. At this time of public health emergency, it is incumbent upon the Illinois Supreme Court to protect litigants, defendants, court personnel and members of the community who come in contact with our justice system in any way.
The COVID-19 pandemic presents an unprecedented threat to public safety. In accordance with the many state and local shelter-in-place orders and the CDC’s recommendations, the criminal courts, in particular, have a critical responsibility to permit people under their jurisdiction to stay home and to properly care for their families and communities.
The novel coronavirus is an unparalleled threat to people taken into custody. Jailed people are simply unable to perform the “social distancing” measures that federal, state, and local officials have stressed are essential to slow the rate of infection. Police officers, corrections officers, and individuals newly admitted to custody threaten widespread contagion. Individuals exposed to COVID-19 who are taken to Illinois jails and prisons put the thousands of people already detained and working there at great risk.
We urge the Illinois Supreme Court to work with the chief judges, sheriffs, prosecutors and public defenders from across the state to develop uniform COVID-19 protocols that are in line with the mandates of federal, state and local public officials. As Illinois lawyers, advocates and community members, we trust our Supreme Court to take the necessary actions to protect the health and well-being of the people.
The remainder of this letter outlines the supervisory orders we feel are appropriate to ensure swift and equitable health protections for people in the state’s jails and prisons. We urge the Illinois Supreme Court to ensure that these protocols are implemented equitably for all people in custody in Illinois.
In criminal matters Illinois courts have the greatest constitutional and moral duty to avoid disruption of cases and respect defendants’ rights. Now, in this time of crisis, the court must also do everything in its power to mitigate the already serious problem of COVID-19 spread in our local jails and prisons. We recommend the following steps in the criminal courts to ensure the rights of Illinois residents and the health and safety of the entire public are protected:
1. Guide and educate judges, pretrial service divisions and probation throughout Illinois regarding bond decisions during the pandemic and the extreme health risks of incarceration.
It is a well-known fact that jails and prisons are dangerous hot spots for disease transmission, particularly influenza, and many had outbreaks of the biologically similar H1N1 flu in 2009. National Institute of Allergy and Infectious Diseases Director Anthony Fauci has been clear that coronavirus is more deadly and more transmissible than H1N1 or common influenza. The rapid spread of COVID-19 inside our jails and prisons is happening right now.
Indeed, the Cook County Sheriff reported Wednesday, March 25, that three corrections officer at the jail has tested positive for COVID-19; as of now, 17 incarcerated people have also tested positive. Judges who do not take this threat seriously are putting accused people, workers inside the jail and the general public at a heightened risk. COVID-19 is dangerous to everyone; bond reductions and review must be granted to as many accused people as possible, regardless of individual medical risk. Every person in jail is a person with an elevated risk of contracting, transmitting, suffering and dying from this disease.
The Illinois Supreme Court should instruct Illinois judges to deny release only when an accused person poses an imminent risk of harm to another individual.
2. Instruct the chief judges of every county on a uniform set of policies and procedures for courthouse closures and stays of cases, including discovery, suspended trial dates and criminal proceedings in consideration of Speedy Trial Act concerns.
For individuals who are incarcerated pretrial, it is imperative that their constitutional right to speedy trial not be suspended more than absolutely necessary, and those cases should be prioritized throughout the court system. The right to a speedy trial is a bedrock constitutional and statutory right, and its suspension should only be used as a last resort.
3. Encourage local prosecutors not to seek, and chief judges of county court systems not to order, the payment of money bail or the holding in custody of any accused person who is arrested for a non-forcible felony.
More than ever before, it is vital that pretrial detention is used only when absolutely necessary. Our jails are hot-spots for COVID-19 and adding people to the jail population increases the health risk for everyone — both behind bars and in the public as a whole.
4. Direct chief judges of county court systems to implement emergency bond reviews for all people detained on an unaffordable money bond, as well as those held on technical violations of probation, misdemeanors and low-level or non-violent felonies.
It is critical for the health and safety of incarcerated people, corrections officers, health personnel and court personnel that we reduce the concentrated populations in our local jails to the greatest extent possible. It is not sufficient to merely remove “high risk” people from the jails, or to take hygiene and isolation measures inside the facilities.
The only way to allow appropriate social distancing and transmission control is to remove people from cramped, unsanitary jails.
5. Impose a moratorium on “turnarounds,” the process by which someone sentenced to time served travels from county jail to an Illinois Department of Corrections facility to dress-in and dress-out the same day.
People sentenced to time served should be released directly from county jail.
Not only are turnarounds a waste of strained justice system resources, but they create a completely unnecessary risk of infection for defendants, staff and people living in correctional institutions. The Illinois courts should work with the Illinois Department of Corrections to ensure that during this period of court closure, defendants who have served all their time are released directly from their local jails, rather than traveling long distances and risking the spread of the disease.
6. Inform chief judges to immediately order criminal court judges not to record failures to appear or issue arrest warrants for missed court dates, including
preliminary hearings, arraignments and other cases for which the court is still in session.
Appearances should be waived in court records so that accused people are not later punished for the court’s closure in the pending case, through risk assessments or in future cases. With respect to mandatory appearances there are many understandable and indeed advisable reasons that one may fail to appear at court during this pandemic.
With public schools closed and seniors at particularly high risk, caregivers are less likely to be able to substitute care for their loved ones while attending court dates. Moreover, information on closures of public services has been overwhelming and often confusing.
Naturally many people are likely to mistakenly believe the courts are completely closed and that their court dates are canceled or rescheduled. No one should be arrested and incarcerated for missing a court date during a period of time when the courts themselves have largely closed.
7. Inform chief judges to order judges to recall or suspend all open warrants issued for reasons that do not impact public safety.
Courts should immediately recall or suspend warrants for unpaid fines and fees, technical probation violations, missed court dates on misdemeanor and non-violent felony cases and other minor issues. Each warrant that remains open represents a person who may be arrested by law enforcement and jailed, exposing them to dangerous health conditions in the prisons and jails.
8. Order chief judges to immediately release as many children as possible from the juvenile detention centers.
It is unconscionable to incarcerate children during this public health emergency, especially given the increased risk incarceration brings to them. The juvenile courts should immediately release any child who is not an imminent threat to public safety and, whenever possible, halt all new admissions to juvenile detention centers.
9. Inform chief judges to authorize all pretrial and probation reporting to be accomplished by phone, and to suspend any drug testing or other probation conditions that require physical presence at an office.
For the safety of accused people, their families and court staff, individuals should not be required to come to public buildings unless totally necessary. All routine check-ins should be made by phone, email, mail, or other advisable means.
10. Inform chief judges to ensure that individuals on Pretrial Services Home Confinement be given liberal movement permissions.
Individuals subject to any level of home confinement under the supervision of pretrial services divisions must be provided with liberal movement (the ability to leave one’s home). All 24-hour curfews should be shifted to a 7 p.m. to 7 a.m. curfew, which allows people to obtain groceries and other supplies, seek medical treatment, collect school meals and provide elder and/or childcare in other households.
11. Inform chief judges that adult and juvenile probation officers should be ordered to refrain from filing any new technical violations of probation or pretrial services violations due to misdemeanor or traffic arrests.
Adding new people to the jails and prisons only increases the health risks to incarcerated people and the public at large.
Additionally, these kinds of violations often result in no-bond holds while the accused person waits to be heard by the judge overseeing probation; at present, such reviews will be significantly delayed given the closure of most criminal courts. No one who is not found to pose an immediate threat to the safety of an individual should be admitted pretrial to jails during this pandemic.
12. Inform chief judges to make clear, public announcements of the measures implemented.
It is important that as many accused people as possible receive accurate and timely information about court closures, new processes and the implications for their cases so that they do not risk leaving their homes to unnecessarily travel to court.
Our civil courts can take important steps to relieve economic suffering and ensure that Illinoisans stay housed, safe and able to follow all public health recommendations as this crisis continues.
We ask that the Illinois Supreme Court do the following in our civil courts:
1. Issue a statewide emergency order instituting a moratorium on all rental housing evictions, property tax sales and mortgage foreclosures.
This order should include a moratorium on filing new evictions, property tax sales, and foreclosure cases so that the later termination of the order will not result in a serious uptick in new cases when families will likely still be suffering economically due to COVID-19.
2. Grant an automatic stay of any orders for possession already issued, and order that these are not to be executed by local sheriffs or other officials.
3. Inform chief judges to suspend the collection of all outstanding court fines and fees for civil, criminal and traffic matters; suspend all post-judgment collection actions, including lifting bank freezes and wage garnishments; and extend the amount of time people have to pay traffic-related fines.
Many people will soon, if not already, experience extreme economic hardship due to loss of wages and unexpected medical bills. Removing the burden of court-related expenses will be necessary to facilitate stability and maintenance of shelter during the coming months. Payment of court obligations under threat of penalty must not take precedence over the ability of individuals to care for themselves and provide for their families. In addition to lifting bank freezes and wage garnishments, courts should extend deadlines to pay traffic-related fines and court fees until after this crisis has ended. Similarly, courts should suspend notification processes to the Secretary of State for failure to appear and failure to pay traffic tickets, so that people do not lose their ability to drive during this time.
4. Extend filing dates in the Appellate Courts.
In all cases pending in the Illinois Appellate Courts, automatically extend all filing due dates currently scheduled for March or April 2020, for an additional 45 days from the current due date. Further, cancel all oral arguments on or before April 17, 2020, and order them rescheduled after that date, or have the case taken without oral argument.
5. Inform chief judges to require that child protection courts create emergency plans that facilitate parents’ abilities to seek reunification with their children.
Now more than ever it is important for families to be together. It is imperative that parents’ constitutional right to parent is maintained and that the statutory timelines for reunification remain at the front of everyone’s minds.
While remaining closed, the courts should provide opportunities for enforcement of court mandates and of parental rights (i.e., create mechanisms for attorneys to call judges and schedule emergency motions and/or hearings virtually).
Courts should implement rules that require judges — currently and upon courts reopening — accommodate for difficulties experienced by parents seeking reunification with their children due to the court’s closure and the COVID-19 pandemic.
The courts should work with judges in child protection courtrooms to ensure that DCFS is taking the necessary steps to accommodate parents' progress towards reunification with their children.
We appreciate the steps that the Illinois Supreme Court has already taken to protect public health during this unprecedented crisis. Still, much more action is necessary to ensure the safety of all Illinois residents, including our most vulnerable populations.
The letter was signed by the following organizations: Chicago Appleseed Fund for Justice; Chicago Council of Lawyers; Chicago Community Bond Fund; AFSCME Local 3315 Cook County Public Defender's Association; Believers Bail Out; Beyond Legal Aid; Chicago Urban League; Community Renewal Society; The I-11 Project; Illinois Prison Project; Interfaith Criminal Justice Task Force; John Howard Association; Loevy & Loevy; Mandel Legal Aid Clinic at the University of Chicago Law School; Restore Justice; Rights and Restoration Law Group LLC; Roderick and Solange MacArthur Justice Center; Shriver Center on Poverty Law; Uptown People’s Law Center and Women’s Justice Institute.