CRIMINAL CASE MANAGEMENT AND JAIL CROWDING IN WINNEBAGO COUNTY, ILLINOIS

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1 CRIMINAL CASE MANAGEMENT AND JAIL CROWDING IN WINNEBAGO COUNTY, ILLINOIS Final Report November 2012 David C. Steelman, Esq., Principal Consultant Paul Ziegler, Project Director Daniel J. Hall, Vice President Court Consulting Services 707 Seventeenth Street, Suite 2900 Denver, CO (303)

2 2012 National Center for State Courts This document was prepared under an agreement dated July 2, 2012, between the National Center for State Courts (NCSC) and the County of Winnebago, Illinois (the County), for an assessment of circuit court criminal case processing as a contributing cause for jail crowding, with recommendations for improvement. The points of view and opinions expressed in this report are those of the authors and do not necessarily represent the official position or policies of the County. NCSC grants the County a royalty-free, non-exclusive license to produce, reproduce, publish, distribute or otherwise use, and to authorize others to use, all or any part of this report for any governmental or public purpose. Online legal research provided by LexisNexis. ii

3 CRIMINAL CASE MANAGEMENT AND JAIL CROWDING IN WINNEBAGO COUNTY, ILLINOIS Table of Contents Executive Summary I. External Causes for Jail Crowding A. Winnebago County Jail Population Levels B. Criminal Case Filings in Winnebago County Circuit Court , 3 C. State s Attorneys and Public Defenders in Winnebago County II. Criminal Case Processing Causes for Jail Crowding A. Winnebago County Compliance with Speedy Trial Requirements B. Decisions on Release from Jail Pending Adjudication C. Positive Developments in Pretrial Release Practices D. Criminal Pretrial Practices E. Scheduling Events before Trial F. Scheduling Cases for Trial G. Conclusion III. Recommendations for Reduction of Delay and Jail Crowding A. Manage Criminal Case Progress to Provide Justice Promptly and Without Undue Waste of Resources B. Adopt Time Expectations with Greater Management Utility for Criminal Cases C. Share and Use Information More Effectively to Monitor Actual Case Management Performance D. Continue to Enhance Practices for Making Pretrial Release Decisions E. Promote Early and Fair Resolution of Cases through Improved Criminal Pretrial Practices and Improved Scheduling of Events before Trial F. Create Credible Trial Dates through Improved Scheduling of Cases for Trial Appendices A. Speedy Trial in Criminal Cases under Illinois Compiled Statutes B. Details of Data on Criminal Cases Filed and Disposed, January-June, C. Details of Data on Hearings in Disposed Criminal Cases, January-June, D. Details of Data on Cases Set for Jury Trial, January-June, E. Timely Justice and the Resource Needs of Courts, Prosecutors and Public Defenders F. Model Continuance Policy Page vii iii

4 List of Figures and Tables Figure 1. Resident Population and Jail Population in Winnebago County, Figure 2. Average Length of Stay for Jail Inmates, 2006, 2011, and January-June Table 1. Total Winnebago County Criminal Cases Filed, Figure 3. Trends in Average Daily Jail Population, Resident Population, and Criminal Filings 6 Figure 4. Trends in the Mix of Criminal Case Filings in Winnebago County, Figure 5. Filing Trends for Criminal Cases Punishable by Incarceration, Figure 6. Comparison of 2002 and 2011 Filings for Offenses Punishable by Incarceration.. 9 Figure 7. Comparison of Pending Felony Caseloads and SA/PD Staffing Levels, Table 2. Days from Filing to Disposition, All Criminal Cases Disposed January-June Table 3. By Case Type, Custody Status in Criminal Cases Disposed January-June Table 4. By Custody Status, Days from Filing to Disposition for Criminal Cases Punishable by Incarceration and Disposed January-June Figure 8. Trends in Winnebago County Average Bond Amounts and Average Daily Jail Population, Figure 9. Number & Selected Reasons for Inmates Released from Winnebago County Jail, January through June Figure 10. Trial and Nontrial Dispositions for Felonies, Misdemeanors and DUI Cases, January through June Table 5. Scheduled Court Events in Criminal Cases Disposed January-June Table 6. Key Pretrial Court Events Scheduled in Felony, Misdemeanor and DUI Cases Disposed January-June Table 7. Bench & Jury Trials Scheduled in Felony, Misdemeanor and DUI Cases Disposed January-June Figure 11. Outcomes for All Criminal Cases on Jury Dockets, January-June Figure 12. Negative Feedback Loop between Trial Scheduling and Continuances Figure 13. Action on Cases with Jury Waiver during Jury Week, January-June Figure 14. Sources of Jury Week Continuance Requests Granted in Criminal Cases Disposed January-June Figure 15. Ten Most Common Reasons for Jury Week Continuances Granted January- June Table 8. Model Time Standards for State Trial Court Criminal Cases Table B-1. Total Criminal Cases Filed, by Case Type, January-June Table B-2. Total Criminal Cases Disposed, by Case Type, January-June Table B-3. Time to Disposition, by Custody Status at Disposition, January-June Table B-4. Manner of Disposition for All Felony (CF) Disposed January-June Table B-5. Times to Disposition for All Felony (CF) Cases Disposed January-June Table B-6. Times to Disposition by Custody Status for Felonies Disposed January-June Table B-7. Times to Disposition by Felony Class for Felonies Disposed January-June Table B-8. Manner of Disposition for All Misdemeanor (CM) Cases Disposed, January-June Page iv

5 List of Figures and Tables (continued) Table B-9. Times to Disposition for All Misdemeanor Cases Disposed January-June Table B-10. Times to Disposition by Custody Status for Misdemeanors Disposed January-June Table B-11. Times to Disposition by Misdemeanor Class for Misdemeanors Disposed January-June Table B-12. Manner of Disposition for All DUI (DT) Cases Disposed January-June Table B-13. Times to Disposition for DUI (DT) Cases Disposed January-June Table B-14. Times to Disposition, by Defendant Custody Status at Disposition, for All DUI (DT) Cases Disposed January-June Table B-15. Manner of Disposition for All Traffic (TR) Cases Disposed January-June Table B-16. Times to Disposition for Traffic (TR) Cases Disposed January-June Table B-17. Times to Disposition by Custody Status for All Traffic (TR) Cases Disposed January-June Table B-18. Manner of Disposition for All Ordinance Violation (OV) Cases Disposed January- June Table B-19. Times to Disposition for All Ordinance Violation (OV) Cases Disposed January-June Table B-20. Times to Disposition by Custody Status for All Ordinance Violation (OV) Cases Disposed January-June Table B-21. Manner of Disposition for All Conservation (CV) Cases Disposed January- June Table B-22. Times to Disposition for All Conservation (CV) Cases Disposed January-June Table B-23. Times to Disposition by Custody Status for All Conservation (CV) Cases Disposed January-June Table C-1. Total Scheduled Court Events in Disposed Felony (CF) Cases, January-June Table C-2. Specific Kinds of Scheduled Court Events in Felony (CF) Cases, January-June Table C-3. Key Court Events Scheduled per Case in Felony (CF) Cases, January-June Table C-4. Total Scheduled Court Events in Misdemeanor (CM) Cases, January-June Table C-5. Specific Kinds of Scheduled Court Events in Misdemeanor (CM) Cases, January-June Table C-6. Total Scheduled Court Events in Disposed DUI (DT) Cases, January-June Table C-7. Specific Kinds of Scheduled Court Events in DUI (DT) Cases, January-June Table C-8. Total Scheduled Court Events in Disposed Contempt (CC) Cases, January-June Table C-9. Specific Kinds of Scheduled Court Events in Contempt (CC) Cases, January- June Table C-10. Total Scheduled Court Events in Disposed Traffic (TR) Cases, January-June Table C-11. Specific Kinds of Scheduled Court Events in Traffic (TR) Cases, January-June Table C-12. Total Scheduled Court Events in Disposed Ordinance Violation (OV) Cases, January-June Page v

6 List of Figures and Tables (continued) Table C-13. Specific Kinds of Scheduled Court Events in Ordinance Violation (OV) Cases, January-June Table C-14. Total Scheduled Court Events in Disposed Conservation (CV) Cases, January- June Table C-15. Specific Kinds of Scheduled Court Events in Conservation (CV) Cases, January- June Table D-1. Outcomes for All Cases Set for Jury Trial, January-June Table D-2. Action on Cases with Jury Waiver After Setting for Jury Trial, January-June Table D-3. Reasons for Jury Trial Continuances Requested by Defendants, January-June Table D-4. Reasons for Jury Trial Continuances Requested by State, January-June Table D-5. Reasons for Jury Trial Continuances by Agreement, January-June Table D-6. All Other Reasons for Jury Trial Continuances, January-June Table D-7. Outcomes for All Cases Set for Jury Trial with Defendant in Custody, January-June Table D-8. Outcomes for All Cases Set for Jury Trial with Defendant Not in Custody, January-June Table D-9. Outcomes for All Cases Set for Jury Trial with Defendant Custody Status Not Recorded, January-June Page vi

7 EXECUTIVE SUMMARY In July 2012, Winnebago County (the County) engaged the National Center for State Courts (NCSC) to identify the causes of the jail overcrowding that it has experienced. More specifically, the County called on NCSC to determine the causes of criminal case-processing delays in the Illinois 17 th Judicial Circuit Court for Winnebago County (the Court), on which to base suggestions for improvement. This report presents the findings and improvement suggestions of the NCSC project team. In Chapter I, NCSC confirms that a continuing influx of criminal felony filings and a sharp reduction in prosecution and public defender staffing have been important external causes for the jail crowding problem in Winnebago County. In Chapter II, NCSC addresses factors within the processing of criminal cases that have contributed to jail crowding, including decisions on pretrial release of defendants; criminal pretrial practices; the scheduling of court events before trial; and the degree of trial-date certainty in the scheduling of cases for trial. From interviews and data for criminal cases disposed in the first half of 2012, showing that key court events in cases before trial and after listing for trial are scheduled and rescheduled, NCSC concludes from the interviews and data that any judge management of continuances arising from problems in the preparation of cases for disposition has not successful. Problems with so many rescheduled court events have a negative cascading effect. Because lawyers must appear in court so often, then are unable to do their out-of-court work, including interviews with parties and witnesses. And because they are unable to do their out-of-court work, the lawyers find that they must ask more often for scheduled court events to be set over once again. Ultimately, there is a need to continue many cases listed for trial because pretrial preparation has not yet completed, and this cannot be a result of the fact that the Court is pushing cases to trial before they are ready. Nor can the problems delay in criminal case processing and of resulting jail crowding are not a result solely, or even primarily, of insufficient resources in the criminal court process. Based on the analysis in Chapters I and II, the NCSC project team offers a set of recommendations in this report for improving the timeliness of criminal case processing by the Circuit Court and its criminal justice partners. If these recommendations are adopted and implemented successfully, a direct and necessary consequence will be a reduction in jail crowding in Winnebago County. vii

8 Overall, NCSC urges that the following broad steps be taken to reduce criminal delay and jail crowding: A. To promote prompt delivery of just outcomes without undue waste of resources for the Court, County Corrections, State s Attorney, Public Defender, and law enforcement, Winnebago County Circuit Court judges must exercise leadership and actively manage criminal case progress, working in concert with their criminal justice partners. B. To promote compliance with Illinois speedy trial requirements, the Circuit Court must adopt time expectations for criminal cases that have greater management utility. C. To promote more effective monitoring of actual case management performance in view of applicable time expectations, as well as timely information sharing by the Circuit Court and its criminal justice partners, the Circuit Court, State s Attorney, and Public Defender must work with the County Department of Information Technology to enhance the utility of the County s case information system for judges and lawyers. D. To promote shared confidence that the number of defendants not released promptly from county jail after booking creates no more demand on jail capacity than is absolutely required to balance due process and public safety, the Circuit Court, State s Attorney, Public Defender, Sheriff s Department, and Pretrial Services must use suitable programs, such as electronic monitoring, to continue enhancing practices for pretrial release decisions. E. To promote both meaningful progress to trial readiness and early and fair non-trial resolution of criminal cases, building on the success to date of the fast-track review program, the Circuit Court must exercise early and continuous control of criminal case progress through such steps as (1) instituting an early triage approach for all cases, and (2) taking affirmative steps with the State s Attorney, the Public Defender and private defense counsel to assure meaningful pretrial court events and eliminate unnecessary pretrial status calls. F. To create and maintain the expectation that events will occur as scheduled, and to promote attorney preparation for trial and court events before trial, the Circuit Court must create greater trial-date certainty by improving its scheduling of cases for trial. For each of these steps, NCSC offers more specific recommendations. In all, there are 17 recommendations in Chapter III. viii

9 I. EXTERNAL CAUSES FOR JAIL CROWDING Winnebago County is experiencing jail crowding issues, and county officials have concluded that those issues must be addressed as soon as possible. Although bookings at the county jail are down, the inmate population has continued to rise, so the average length of stay is increasing. Given that the majority of inmates are held awaiting adjudication, this situation indicates that there are delays in the processing of court cases. A. Current Winnebago County Jail Population Levels The current corrections facility in Winnebago County is located in the county seat at Rockford and has a 1,313 bed rated capacity, with more than 200 corrections officers and 385,000 square feet of space. 1 In 2007, the county jail moved from the Public Safety Building to a newlyconstructed Winnebago County Justice Center. In May 2012, a local journalist wrote the following about the jail population: 2 1. Jail Population and Resident Population. Figure 1 below shows trends in the average daily county jail population in Winnebago County from 2000 through the first half of 2012, comparing to total resident county population trends during that period. Average daily jail population increased from 567 in 2000 to 633 in 2003, and then it dropped off to 595 in 2005 and 604 in The jail population in 2006 was thus 6.5% higher in 2006 than it had been in 2000, while the total resident county population in 2006 (293,248) was 5.3% higher than that found in the 2000 census (278,418). The total resident county population projection 3 used as a basis for the projection of the jail population for planning the new Justice Center was that there would be about 307,350 county residents by 2010 and around 320,700 by After 2007, however, resident county population peaked in 2008 and 2009 at between 298,000 and 299,000 before dropping off to the levels. Figure 1. Resident Population and Jail Population in Winnebago County, See Winnebago County Sheriff s Office, Corrections/Jail, howhttp:// 2 Kevin Haas, Expansion possible for Winnebago County Criminal Justice Center, Rockford Register Star (rrstar.com, May 6, 2012), Criminal-Justice-Center. 3 See Illinois Department of Commerce and Economic Opportunity, Population Projections: All Projections by County, 4 Jail population data for were provided to NCSC in an interview with the Winnebago County Sheriff and the Jail Superintendent. Data for January-June 2012 are from the Winnebago County Sheriff s Department website. Resident county population data are from the US Census Bureau. National Center for State Courts Page 1

10 Resident & Jail Population Trends (2000 = 1.000) Criminal Case Management and Jail Crowding in Winnebago County, IL * Calendar Year Resident County Population (in thousands) Average Daily Daily Jail Jail Popiulation Population * Note: 2012 average daily jail population is for January through June only Meanwhile, there was a sharp increase in the average daily population of county jail inmates. The reader will see from Figure 1 that the county jail had a daily average of 665 inmates in Each year since then, the daily average has increased. In the first six months of 2012, the average daily population (1,039) was 56% higher than that for While the resident population of Winnebago County in 2012 was 6% higher than in 2000, the average daily jail population in 2012 was 83% higher than in Average Length of Jail Stay (ALOS). Jail crowding is not simply a matter of how many inmates are incarcerated on any given day. It also has to do with how long a person must stay in jail until he or she is released. Figure 2 below shows trends from January through June 2012, with snapshots for 2006 and 2011, for the average number of days a person spends in the Winnebago County Jail. The ALOS data in Figure 2 for the first six months of 2012 show that the average time in custody per month jumped by over 50% from January to February, before falling back in March and April, and then climbing in May and June again. These figures demonstrate that there can be pretty wild swings from month to month in terms of a person s typical incarceration time. National Center for State Courts Page 2

11 Days in Jail Criminal Case Management and Jail Crowding in Winnebago County, IL Figure 2. Average Length of Stay (ALOS) for Winnebago County Jail Inmates, 2006, 2011, and January-June Jun Jan Feb Mar Apr May Jun Date (Year or Month and Year) Average Length of Stay When the ALOS data are viewed in light of the ALOS figures for 2006 and 2011, however, there appears to be an unmistakable trend. Criminal defendants in Winnebago County are spending a longer time in jail before they are released. B. The Circuit Court in Winnebago County and Its Criminal Cases Illinois trial courts are organized in 23 judicial circuits. Judicial services for citizens of Winnebago and Boone Counties are provided by the 17 th Judicial Circuit Court. As a unified trial court, a Circuit Court hears all trial court matters arising in the counties it serves. It has authority over criminal cases including felonies, misdemeanors, driving under the influence, other moving traffic offenses, ordinance violations, and conservation cases. Its responsibilities also include civil cases (including such matters as claims for monetary damages, small claims, title to real property, review of decisions by administrative bodies, probate matters, domestic violence, and divorce) and juvenile cases (such as juvenile delinquency or abuse and neglect proceedings). 5 Figures for the average length of jail stay (ALOS) in 2006 and June 2011 are as reported by journalist Kevin Haas in Long stays behind Winnebago County Jail's overcrowding (posted June 4, 2011, and updated June 6, 2011), (as downloaded on September 18, 2012). ALOS figures for January-June 2012 are from Winnebago County Sheriff s Department, Jail Statistics: Booking Breakdown to Date 2012, (as downloaded on September 18, 2012). National Center for State Courts Page 3

12 1. Classification of Criminal Offenses under Illinois Law. 6 There are three types of criminal offenses in Illinois: felonies, misdemeanors and petty offenses. The category of petty offenses includes business offenses. Felonies are offenses for which a sentence to death or to imprisonment in a penitentiary for one year or more is provided. A sentence to imprisonment for a felony requires the commitment of the defendant to the custody of the Department of Corrections (the penitentiary). Offenders can be sentenced to imprisonment for up to six months as a condition of probation or conditional discharge for a felony offense, and they are incarcerated in a county jail. Felonies are divided into six classes, punishable as follows: 7 First-degree murder is a separate class of felony and carries the greatest potential sentence. The sentence of imprisonment for first degree murder is years, although a repeat offender or one whose offense is accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty may be sentenced to an extended term of years. 8 Examples of Class X offenses include aggravated criminal sexual assault, aggravated kidnapping, armed robbery, home invasion, and the most serious drug offenses. The possible period of imprisonment for a Class X felony is 6-30 years. Second-degree murder, criminal sexual assault, and residential burglary are examples of Class 1 felonies. The possible period of imprisonment for a Class 1 felony is 4-15 years. Kidnapping, robbery, burglary, and arson are examples of Class 2 felonies. The possible period of imprisonment for a Class 2 felony is 3-7 years. Aggravated battery and perjury are examples of Class 3 felonies. The potential period of imprisonment for a Class 3 felony is 2-5 years. Stalking is an example of a Class 4 felony. The term of imprisonment for a Class 4 felony is 1-3 years. Also, a defendant may be found to be a habitual criminal. Such a finding is possible for a current conviction for first degree murder, criminal sexual assault, or a Class X felony, combined with two previous and separate convictions of any combination of first degree murder, a Class X felony, criminal sexual assault, and aggravated kidnapping. For any such finding, a term of natural life imprisonment must be imposed. 6 This section is based on Illinois State Bar Association continuing legal education materials prepared by retired Judge Gino L. Divito, and presented in Crimes and Punishment, %20Crimes%20and%20Punishment.pdf; 7 Criminal statutes defining felonies provide that any repeat offender or defendant convicted of a brutal or cruel offense may be sentenced to an extended term up to twice the normal maximum shown here for any Class X, 1, 2, 3 or 4 felony. 8 In certain first-degree murder cases, the death penalty is possible; and in some cases where the death penalty is not imposed for first-degree murder, a life sentence may be required. National Center for State Courts Page 4

13 Misdemeanors are offenses for which a sentence of imprisonment in a jail other than a penitentiary for less than one year may be imposed. Examples are assault, battery, a first-time theft of property not exceeding $300 in value and minor cannabis offenses. Offenders sentenced to imprisonment for less than one year for misdemeanors are incarcerated in a county jail. Misdemeanors are divided into three classes: A Class A misdemeanor is punishable by any term less than one year in the county jail. It also carries a potential fine of up to $2,500 or the amount specified in the statute defining the offense. A Class B misdemeanor is punishable by not more than six months in jail and is subject to a potential fine of up to $1,500. A Class C misdemeanor is punishable by not more than 30 days in jail. Like Class B cases, Class C misdemeanors are subject to potential fines of up to $1,500. For petty and business offenses a fine is the usual sentence, although supervision can be given or conditional discharge for up to six months may be imposed or restitution may be required. The maximum fine for petty offenses is $1,000 or the amount specified in the statute defining the offense, whichever is less. Most minor traffic offenses, such as speeding, are petty offenses. The possible fine for business offenses exceeds $1,000 and is provided by the statute defining the offense. 2. Total Criminal Case Filings in Winnebago County. When we see in Figure 1 that the jail population in Winnebago County has increased dramatically even as the resident county population has remained stable since 2000, our first inclination would be to expect that the growing jail population has been associated with a comparable increase in the number of criminal cases filed in the Circuit Court. Yet as Table 1 shows, total criminal filings in the decade from 2002 through 2011 peaked in From 2008 through 2011, they have fallen off, so that 2011 criminal filings were more than 25% lower than they had been in National Center for State Courts Page 5

14 Annual Trends (2002=1.000) Criminal Case Management and Jail Crowding in Winnebago County, IL Table 1. Total Winnebago County Criminal Cases Filed, Case Type Felony 3,684 3,738 4,249 4,156 5,089 4,931 5,164 4,082 3,911 3,634 Misdemeanor 10,064 9,324 9,399 8,538 9,384 9,245 9,770 6,358 5,092 4,285 DUI 1,603 1,587 1,708 1,638 1,604 1,743 1,893 1,802 1,722 1,577 Traffic 68,319 70,949 74,718 71,248 66,174 68,146 64,770 63,313 55,389 52,152 Ordinance Violation 1,961 1,975 1,727 1,987 2,160 2,517 2,112 2,378 2,532 1,997 Conservation Total Filings 86,019 87,878 92,091 87,946 84,800 86,863 83,981 78,200 68,875 63,857 Figure 3 below shows graphically how trends in total criminal filings compare with trends in average daily jail population and total resident county population. As Figure 1 indicates, the total resident population was relatively unchanged during this period. Yet the sharp increase in jail population after 2007 coincided with a drop in total criminal filings. Figure 3. Trends in Winnebago County Average Daily Jail Population, Resident Population, and Total Criminal Filings, Calendar Year Resident County Population Average Daily Jail Population Total Criminal Filings per Year (in thousands) 3. Changes in the Mix of Criminal Case Filings in Winnebago County. What accounts for the opposing trends in jail population and criminal filings, as shown in Figure 2? For a better understanding, it is necessary to look more closely at the components of total criminal filings. If one looks at the different case types under criminal, one can see that filings for felonies, DUI cases, ordinance violations, and conservation cases were little different in 2011 than they were in Accounting for Source: Winnebago County Circuit Clerk s Statistical Report to the Administrative Office of Illinois Courts (AOIC). 10 The source for criminal filings is the Winnebago County Circuit Clerk s Statistical Report to the Administrative Office of Illinois Courts (AOIC). For jail population and resident population, see the note to Figure 1. National Center for State Courts Page 6

15 Total Criminal Filings per Year Criminal Case Management and Jail Crowding in Winnebago County, IL 99% of the difference in filings between 2002 and 2011 was the result of a dramatic drop in total traffic and criminal misdemeanor filings. Presenting the filing data from Table 1 in a different format, Figure 4 below shows the extent to which the mix of case types included among total criminal filings has changed from 2002 through A visual inspection of Figure 4 shows that the lion s share of all criminal filings (almost 80% of the ten-year total) consists of moving traffic violations. Figure 4. Trends in the Mix of Criminal Case Filings in Winnebago County, ,000 90,000 80,000 70,000 60,000 50,000 40,000 30,000 20,000 10,000 Conservation (CV) Ordinance (OV) Traffic (TR) DUI (DT) Misdemeanor (CM) Felony (CF) Calendar Year Ordinance violations constitute a small but consistent portion of all filings, while conservation cases are such an insignificant part of the total that they barely appear in the chart. All conservation violations, ordinance violations, and minor traffic violations are petty offenses, punishable by no more than a fine. The defendants in such cases may be arrested for failure to respond to a summons or failure to appear, but they represent less than 2-3% of the total jail population at any given time, and they are unlikely to be jailed for long. 4. Criminal Offenses Punishable by Incarceration. Next in total filings after minor traffic offenses are criminal misdemeanors, for which a conviction carries a possible penalty of incarceration for up to a year in the county jail. Among 2,295 criminal misdemeanors disposed in Winnebago County in the first half of calendar year 2012, 30% of the defendants were jailed 11 See Table 1 and Figure 3 for source information. National Center for State Courts Page 7

16 Filings per Year Punishable by Incarceration Criminal Case Management and Jail Crowding in Winnebago County, IL at the time of disposition. As Table 1 indicates, the total number of misdemeanor filings in Winnebago in 2011 was less than half what it was in Driving under the influence of alcohol or a controlled substance (DUI) also carries a potential penalty of incarceration. Over the ten-year period for which Winnebago County criminal filings are shown, DUI filings have not diminished. In 1,030 DUI cases that were disposed from January through June 2012, 7.3% of the defendants were in custody at disposition. Presenting the largest share of the jail population at any time are defendants charged with felonies. Although the number of felony filings in 2011 was substantially lower than it had been in , total 2011 filings were still at the level they were in In the 2,211 felony cases disposed in Winnebago County in the first six months of 2012, 45.5% of the defendants were in custody at disposition. Figure 5 shows the trends from 2002 through 2011 if we look only at cases in which defendants face the possibility of being sentenced to jail or imprisonment. Throughout the period, there are more criminal misdemeanor filings than either felonies or DUI cases. Yet misdemeanor filings constituted a sharply diminishing portion after Figure 5. Filing Trends for Criminal Cases Punishable by Incarceration, ,000 16,000 14,000 12,000 10,000 8,000 6,000 4,000 2,000 DUI (DT) Misdemeanor (CM) Felony (CF) Calendar Year Based on Figure 5, Figure 6 below illustrates the consequence of having fewer criminal misdemeanors and a relatively larger portion of felonies and DUI cases among the matters punishable by incarceration. 12 See Table 1 and Figure 3 for source information. National Center for State Courts Page 8

17 Figure 6. Comparison of 2002 and 2011 Winnebago County Criminal Filings for Offenses Punishable by Incarceration, Showing Percentage of Felony, DUI and Misdemeanor Cases % 24.00% 65.56% 2002 Felony (CF) Misdemeanor (CM) DUI (DT) 16.61% 38.27% 45.12% 2011 In 2002, Figure 6 shows that criminal misdemeanors represented almost two-thirds of all cases filed with the potential for incarceration upon conviction. About one case in four was a felony, 13 See Table 1 and Figure 3 for source information. National Center for State Courts Page 9

18 and about one case in ten was a DUI case. We can see from Figure 6 that felonies represented a much larger portion of all potential incarceration cases in 2011 than in One of every six criminal filings involved DUI charges. And criminal misdemeanors represented less than half of all criminal filings of cases with the potential for incarceration. Here is one of the primary contributors to the increase in the Winnebago County jail population, even in the absence of any substantial increase in the total number of Winnebago County residents. Although there has been a substantial drop in the number of criminal cases filed in the Circuit Court, much of the reduction in filings was in the number of minor traffic violations for which incarceration is not a potential penalty. Among cases for which time in jail or prison is possible, there is a greater portion of felony cases, which have the highest percentage of defendants who may be jailed pending incarceration. C. State s Attorneys and Public Defenders in Winnebago County At this point, a reader who has studied the criminal filing data shown in Table 1 might say, Wait just a minute! Even if there is now a higher percentage of felony cases before the Court, the number of filings still dropped by 22,000 cases from 2002 to With fewer cases, why shouldn t the criminal cases in Winnebago County still be handled without a growing jail population? Part of the answer to that question is presented in Figure 7, which shows staffing levels for in State s Attorney s and Public Defender s Offices in relation to the number of felony cases awaiting disposition in those years. Figure 7 presents a clear picture. When the number of personnel in the prosecutor s office and defender s office was raised somewhat from 2006 through 2009, total the number of felony cases pending adjudication was reduced. When staffing levels in those offices were cut in 2009 and 2010, however, there were fewer hands available to deal with the workload, and the size of the pending felony inventory shot back up. In Winnebago County, the continuing influx of criminal felony filings, together with a sharp reduction in prosecution and public defender staffing, were important reasons why there was a sharp rise in the jail population, even though total criminal filings were falling. National Center for State Courts Page 10

19 Caseload and Staffing Trends (2006=1.00) Criminal Case Management and Jail Crowding in Winnebago County, IL Figure 7. Comparison of Winnebago County Pending Felony Caseloads and Staffing Levels in the Offices of the State s Attorney and the Public Defender, , ,620 4,461 4,318 4, , Calendar Year Combined SA & PD Staffing Felony Cases Pending This conclusion by NCSC confirms a perception by many officials in Winnebago County that the increased jail population is a result of criminal court delays caused by reductions in staff for public defenders and prosecutors. In response to perception, the Winnebago County Board committed about $680,000 at the start of 2012 for the employment of Four attorneys and an investigator for the public defender s office; Two prosecutors and an investigator for the state s attorney s office; Two probation officers; and Two court clerks. 15 Yet concerns remain whether the addition of such personnel will be sufficient to achieve and sustain a lower inmate population in the county Jail. Before exploring a possible need for more jail space, it is important to consider other features of criminal case processing in the Circuit Court. 14 Sources: Caseload statistics are from the Winnebago County Circuit Clerk s Statistical Report to AOIC. Staffing figures for the State s Attorney s Office and Public Defender s Office were provided by Winnebago County. 15 See Kevin Haas, Winnebago County Board urged to OK outside analysis of jail total (posted May 10, 2012, updated May 11, 2012), (as downloaded on September 18, 2012). National Center for State Courts Page 11

20 II. CRIMINAL CASE PROCESSING CAUSES FOR JAIL CROWDING In Chapter I, NCSC finds that a continuing influx of criminal felony filings and a sharp reduction in prosecution and public defender staffing were important external causes for the jail crowding problem in Winnebago County. But does it necessarily follow from such a conclusion that the only way for the criminal process in the court to result in less jail crowding is to increase resources for prosecution and public defense? The national experience in American state and local trial courts in the past 40 years dictates that adding more resources cannot be the first and only way to address problems of delay and jail crowding. Instead, it is important to assess the manner in which existing resources of the Circuit Court, State s Attorney s Office, Public Defender s Office, Sheriff s Department, and other institutional participants in the criminal process are being applied to bring cases from initiation to disposition. A. Winnebago County Compliance with Speedy Trial Requirements for Criminal Cases Some government officials in Winnebago County blame the growing jail population on a slow court system. If the number of people in jail is rising even if jail bookings are down, one official said, To concentrate on trying to get (the population) down, we need to look at trying to do something with the movement of the people through the system. 16 If there is a perception that criminal court processing in Winnebago County is too slow, how long should it take? 1. Illinois Speedy Trial Statute. Like most other states, Illinois has formal provisions for how long a criminal case should take to proceed from case initiation to trial. 17 Circuit courts in Illinois are called upon by statute to comply with the following speedy trial requirement: 18 For criminal defendants in custody pending disposition: In 100% of cases, trial should be held within 120 days after the date of detention. For criminal defendants released on bail or recognizance pending disposition: In 100% of cases, trial should be held within 160 days after the date of filing. 16 Quoted in Kevin Haas, Expansion possible for Winnebago County Criminal Justice Center (May 6, 2012), * (as downloaded on September 18, 2012). 17 For a database with state-by-state information about Case Processing Time Standards (CPTS) and how states monitor them, see National Center for State Courts, Case processing time standards, available online at 18 Illinois Compiled Statutes, 725 ILCS 5-103/5. National Center for State Courts Page 12

21 These speedy trial provisions call for criminal cases to be dismissed if trial is not provided within the specified time period, unless delay is occasioned by the defendant or the defendant is not fit to stand trial because of mental health problems or other grounds for legal incompetence Times to Disposition for All Recently-Concluded Criminal Cases. To determine whether court proceedings for criminal cases are too slow, NCSC analyzed data provided by the Winnebago County Department of Information Technology on the times to disposition for all criminal cases concluded the first six months of Table 2 below shows results for the age of cases at disposition. A very small number of the recently-concluded cases were matters that have been lingering unresolved for years, undoubtedly because defendants were issued summonses for violations or released from detention in misdemeanor cases and then failed to appear and then could never be found. 20 Half of all cases were only 33 days old at disposition, and over 90% of all cases were less than nine months old. Table 2. By Custody Status at Disposition, Days from Filing to Disposition for All Winnebago County Criminal Cases Disposed from January through June All Disposed Defendant In Custody Status Defendant Not Description Charges Custody Not Recorded in Custody Median Mean Pct Over 120 Days 20.67% 45.96% 7.65% 42.20% Pct Over 160 Days 16.43% 37.53% 5.51% 34.50% Pct Over 365 Days 6.47% 16.64% 2.78% 11.85% Defendants in only a small portion of the cases (2,351 of 36,929, or 6.4%) were in custody at the time of disposition. On average, their cases were disposed in a little over 100 days, or less than three-and-a-half months. Still, almost half of them (45.96%) took longer than the 120 day requirement in the Illinois speedy trial statute. No more than four such cases were likely to have been dismissed under the speedy trial rule, however. Instead, almost all took longer than 19 See Appendix A for the full text of the Illinois speedy trial statute. 20 The oldest case disposed in the first six months of 2012 was almost 36 years old. It probably had been inactive for most of that time, and its ultimate disposition probably came only after the County s new case management system allowed it to be identified and closed out. As can be seen from the data in Appendix C, Table C-3, only two percent of all criminal cases disposed during this period were more than two years old, and only ten percent were more than 8.6 months old. 21 Source: NCSC analysis of updated spreadsheets with Winnebago County data on criminal cases disposed January-June 2012, as transmitted in electronic mail message by Ryan Carrigan, Winnebago County Department of Information Technology, to David Steelman, NCSC, on August 9, National Center for State Courts Page 13

22 the time in the speedy trial rule because a continuance was granted at the request of a defendant. (For more discussion of continuances, see the sections below in this chapter on Scheduling Events before Trial and Scheduling Cases for Trial. ) For more than half (20,842, or 56.44%) of the disposed cases, there was no need for the custody status of defendants to be recorded at disposition, largely because they had been issued summonses rather than being arrested, since there was no need for them to be booked at the county jail and granted pretrial release. Almost 95% of these cases were disposed within the 160-day deadline under the speedy trial statute. Defendants in the remaining cases (13,736 of 36,929, or 37.20%) were not in custody at disposition because they had been granted pretrial release after having been booked at the county jail and granted pretrial release on bail or recognizance. While about half of these cases were disposed in three months after initiation, about one-third took longer than the 160-day requirement in the speedy trial statute. Here again, few were dismissed under the speedy trial rule, however, almost always because a defendant failed to appear or a continuance was granted at the request of a defendant. 2. Custody Status According to Whether Offenses are Punishable by Incarceration. For purposes of assessing the impact of court times to disposition on jail crowding, the range of case types included in the Table 2 data with traffic violations ( TR ), ordinance violations ( OV ), and conservation violations ( CV ) along with felonies ( CF ), misdemeanors ( CM ) and DUI ( DT ) cases is too broad. This is because the rubric of criminal cases includes a large number of cases for which a person is not arrested and booked at the county jail, and for which he or she cannot be incarcerated if found guilty. 22 Table 3 shows the custody status of defendants at disposition in the recently-concluded criminal cases by each of case types included under the heading of criminal cases. 22 Indeed, the scope of the Illinois criminal speedy trial statute probably covers too broad a collection of case types for purposes of managing case progress from initiation to disposition. It sets suitable time expectations for traffic violations, ordinance violations and conservation violations, which can and should be disposed within 120 or 160 days after case initiation, and which comprise about 84% of all the cases designated as criminal that were disposed in Winnebago County in the first half of Particularly for felony, misdemeanor and DUI cases, it is helpful to have time expectations that promote timeliness but are more attentive to what such cases require. See Recommendation 1 in Chapter III. National Center for State Courts Page 14

23 Table 3. By Case Type, Defendant Custody Status at Disposition in All Winnebago County Criminal Cases Disposed from January through June Custody Status Percent of Disposed Cases, by Case Type At Disposition All CF CM DT TR OV CV In Custody 6.36% 49.48% 30.15% 7.27% 2.98% 2.07% 0.00% Not in Custody 37.20% 44.46% 64.23% 73.62% 24.97% 25.83% 22.73% Not Recorded 56.44% 6.06% 5.62% 19.11% 72.05% 72.10% 77.27% As one can see, more than 97% of all defendants in traffic violations, ordinance violations, and conservation violations were not in custody at disposition. (Indeed, many of the defendants in those cases may have been in detention at disposition only because of having been apprehended as scofflaws. ) 3. Times to Disposition for Recently-Concluded Criminal Cases Punishable by Incarceration. Felonies, misdemeanors and DUI cases constituted only about 16% of all the criminal cases disposed in Winnebago County in the first six months of Yet they represented over 68% of the cases with defendants in custody at disposition. As Table 3 shows, almost half of all defendants in recently-concluded felony cases were in custody at disposition. Table 4 below shows times to disposition for felony, misdemeanor and DUI cases, according to whether defendants were in custody at disposition. For felony cases with defendants in custody, it shows that half of all cases took about five months to be resolved, and that 57.8% took longer than the 120-day speedy trial requirement. Since the data show that no more than three of the felony cases with defendants in custody could have been dismissed for failure to comply with the speedy trial statute, it is clear that virtually all of the incustody felonies over 120 days had the running of the statute interrupted because defendants waived speedy trial or otherwise had delays attributed to them. Table 3 indicates that about 30% of the defendants in misdemeanor cases disposed in the first half of 2012 were in jail at disposition. Over 60% of the misdemeanor defendants in custody at disposition had cases take longer than 120 days to be disposed. Case data provided by the County suggest that no more than one of these cases could have dismissed for failure by the State s Attorney to meet the speedy trial rule. In all the other misdemeanor cases taking longer than 120 days, the running of the speedy trial requirement was interrupted because in-custody defendants either waived speedy trial or otherwise had delays attributed to them. 23 Source: NCSC analysis of updated spreadsheets with Winnebago County data on criminal cases disposed January-June 2012, as transmitted in electronic mail message by Ryan Carrigan, Winnebago County Department of Information Technology, to David Steelman, NCSC, on August 9, For more details, see Appendix B. National Center for State Courts Page 15

24 In DUI cases completed from January through June 2012, Table 3 shows that almost 93% of the defendants were not in custody at disposition. Yet the data in Table 4 show that DUI cases often take longer than non-traffic misdemeanors to be resolved, whether or not the defendant is in custody. In fact, DUI cases with in-custody defendants may often take longer to be disposed than in-custody felony cases, with a higher percentage taking longer than 120 days to be tried or otherwise concluded. Table 4. By Custody Status at Disposition, Days from Filing to Disposition for Winnebago County Criminal Cases Punishable by Incarceration and Disposed from January through June Description Felony (CF) Cases In Custody Not in Custody Status Not Recorded Median Mean Pct Over 120 Days 57.79% 74.66% 87.14% Pct Over 160 Days 48.84% 65.18% 82.60% Pct Over 365 Days 21.11% 28.42% 59.78% Misdemeanor (CM) Cases Median Mean Pct Over 120 Days 37.65% 22.42% 59.94% Pct Over 160 Days 27.32% 18.20% 53.71% Pct Over 365 Days 8.84% 9.22% 34.45% DUI (DT) Cases Median Mean Pct Over 120 Days 63.51% 59.23% 73.72% Pct Over 160 Days 50.86% 50.22% 68.03% Pct Over 365 Days 23.20% 19.66% 48.19% 24 Source: NCSC analysis of updated spreadsheets with Winnebago County data on criminal cases disposed January-June 2012, as transmitted in electronic mail message by Ryan Carrigan, Winnebago County Department of Information Technology, to David Steelman, NCSC, on August 9, See Appendix B for more detailed information. National Center for State Courts Page 16

25 4. Focus on Cases Punishable by Incarceration. The data on recently-concluded cases provided to NCSC by the County Department of Information Technology show that almost one-third of all defendants in custody at disposition were charged with traffic or ordinance violations. Yet fewer than three percent of the defendants in those high-volume cases were in custody at disposition. By contrast, 32% of the defendants in recently-concluded felony, misdemeanor and DUI cases were in custody at disposition. A defendant in such cases was thus more than ten times as likely to be in jail at disposition as a defendant in a traffic or ordinance case. Except for the possibility of an occasional reference traffic and ordinance cases for comparison purposes, the remainder of this report will focus almost exclusively on cases in which defendants face a possibility of jail or prison on conviction. B. Decisions on Release Pending Adjudication When a person is arrested for a criminal offense, he or she is brought by police to the county jail if the charges are serious enough that an officer cannot simply issue a summons ordering the defendant to appear for court proceedings. In Winnebago County, there was an average of 1,393 defendants booked at the county jail each month in the first half of After arrest the police file a complaint with the Winnebago County Circuit Clerk s Office. The State s Attorney must then file paperwork with the court detailing the arrest and criminal charges. A defendant who is not charged with a felony but does not meet criteria to be booked and released from jail under a bond schedule set by the Court for lesser offenses must appear for in-custody arraignment by a Circuit Court judge. For this purpose, video technology is often used. When the nature of a felony charge allows for the pretrial release of a defendant, a bond hearing is held before a Circuit Court judge. At the in-custody arraignment or bond hearing, the judge considers the likelihood that the defendant will appear for all court appearances, will not pose a danger to any person or the community, and will comply with all conditions of release on bond imposed, including keeping address and other contact information current with the court. The judge may decide to deny pretrial release. The Circuit Court has a pretrial service agency as part of its Adult Probation Department to provide the judge with background information on defendants charged with felony offenses. 26 This information is available for the judge to determine terms and conditions of pretrial release. 25 See Winnebago County Sheriff s Department, Jail Statistics: Booking Breakdown to Date 2012, (as downloaded on September 18, 2012). 26 See the Illinois the Pretrial Services Act, 725 ILCS 185/0.01. National Center for State Courts Page 17

26 Pretrial service personnel also supervise compliance with pretrial release conditions, and report violations of those conditions to the court and prosecutor. During the NCSC interviews in Winnebago County in July 2012, it was suggested that the increase in the jail population may be attributable in part to the prospect that fewer defendants have been able to meet the financial requirements for release on bond because of the 2008 recession. There appear to be several factors affecting changes in pretrial release patterns. 1. Economic Difficulties. Local officials see this in part as a result of a weak economy. The results of a recent profile of socioeconomic measure for Winnebago County confirm that residents of the county have indeed encountered economic difficulties. 27 From 1990 to 2000, employment in Winnebago County grew by 16.4%, while resident population grew by 10.0%; although resident county population increased by 5.8% from 2000 to 2010, employment fell by 8.8%. In constant 2011 dollars, personal income per capita in Winnebago County increased by 10.0% from 1990 to 2000; from 2000 to 2010, it fell by 3.7%. Unemployment, which was around 6% from 2000 through 2006, rose to over 15% in 2010 and remained over 12% in There is not a clear correlation between unemployment, economic difficulty, levels of crime, and ability to meet pretrial release conditions. Yet it is certainly reasonable to expect that economic woes have left many Winnebago County residents with fewer resources to meet financial conditions for pretrial release if arrested. 2. Changes in Criminal Case Mix. In addition to a weak economy, local officials expressed a perception that there have been more severe offenses, and that more crimes are felonies. NCSC review of criminal case filing data for the county (see Table 1 and Figures 3-6 in Chapter I) indicate that felony filings have remained relatively constant while misdemeanor and traffic filings have dropped significantly, so that felonies represent a higher portion of the criminal caseload. 3. Changes in Bond Amounts. Local officials indicated to NCSC that higher bonds are being set as financial conditions for pretrial release. To test the observation that higher bond is being set for criminal defendants, NCSC looked at trends for average bond amounts in the five-year period from 2007 through 2011, and they compared that with trends in the average daily jail population during the same period. 27 Headwater Economics, A Profile of Socioeconomic Measures -- Selected Geographies: Winnebago County IL; Benchmark Geographies: United States (US Bureau of Land Management and Forest Service, produced by the Economic Profile System-Human Dimensions Toolkit [ EPS-HDT ], July 5, 2012), %20Winnebago%20County%20IL%20Measures.pdf (as downloaded on September 18, 2012). National Center for State Courts Page 18

27 Trends in Bond Amounts and Jail Population (2007 = 1.00) Criminal Case Management and Jail Crowding in Winnebago County, IL The results of that comparison are presented in Figure 8. The changes in the bond amounts are striking: from 2007 to 2010, the average bond amount more than tripled, from around $2,100 to about $7,200. In 2011, the average dropped by $800 to about $6,400. Figure 8. Trends in Winnebago County Average Bond Amounts and Average Daily Jail Population, $7,216 $6, $2, $3, $4, Calendar Year Average Bond Amount Average Daily Jail Population Local officials interviewed by NCSC perceive that bail recommendations by the State s Attorney s Office are higher than in prior years, and that prosecutors are much more likely now to oppose release on recognizance. This dynamic is present in part because the prosecution position is not offset by defense counsel, since lawyers from the Public Defender s Office are no longer present at bail hearings. It appears to NCSC that the increase in average bond amounts may also be a consequence of changes in the number of criminal cases filed in particular, the sharp drop in misdemeanor and traffic filings. See Figure 5 in Chapter I. With no corresponding reduction in the number of felony filings, it stands to reason that a higher percentage of bonds are set at levels for felony offenses (see Figure 6 in Chapter I), thereby increasing the average bond per case. 4. Change in Felony Bond Schedule. During NCSC interviews, it was also observed that defendants may have to wait longer for court determination on bond. This appears to be in part the result of a change in the felony bond schedule, as a result of a new statutory 28 Source: Data provided to NCSC by Winnebago County Sheriff s Department, July National Center for State Courts Page 19

28 requirement. 29 As a consequence, any defendant charged with a felony must await the setting of bond by a judge before he or she can potentially be released from jail. With a higher percent of defendants facing felony charges among those awaiting adjudication as a result of sustained levels of felony filings while misdemeanor and traffic filings have dropped, this means that there are proportionally fewer defendants eligible for prompt release and proportionally more defendants who must spend extra time in jail awaiting a felony bond decision by a judge. C. Positive Developments in Pretrial Release Practices On February 24, 2012, Winnebago County instituted a fast track review program to help deal with the growing jail population. In the operation of the program, prosecutors, public defenders, the county jail director and the head of pretrial services meet every Friday morning to see if they can reach agreement to clear cases with guilty pleas and remove inmates from jail. The typical focus is on defendants whose potential sentence would be probation or a term of incarceration equal to or less than the time they ve spent in jail. The result has been to reduce the growing number of jail inmates and pending criminal cases in court. NCSC understands from its interviews in July 2012 that Winnebago County has previously had a Fast Track Court, which once took 40-50% of all felony cases disposed of around 40% of all cases. The fast-track practice was apparently used in part to reduce the number of people in the county jail before the new facility was opened in It was discontinued for some time before its recent resurrection. County officials recently indicated to a local journalist that the program is beginning to show some results in connection with other efforts, noting that in late July the jail population fell below 1,000 inmates for the first time since January 2012, well below the average daily population of 1,039 people in the first half of the year. 30 There are other reasons for the recent reduction in the jail population. See Figure 8, which highlights some of the reasons for release decisions during the first half of As Figure 8 indicates, ten percent cash bond is far and away the most common basis for pretrial release. Yet there has also been a notable increase in decisions by a Circuit Court judge to allow a defendant to be released on recognizance that is, allowed out of jail simply on the agreement that he or she will appear at the next scheduled court event, without having to post money. As Figure 8 shows, the number of recognizance bonds has increased every month this year, from 79 issued in January to 181 in June. Also increasing during the first six months of the ILCS 5/ Kevin Haas, Fast-track review helping to reduce Winnebago County jail population (posted Jul 28, 2012, and last update Jul 30, 2012), (as downloaded on September 18, 2012). National Center for State Courts Page 20

29 Number of Inmates Released Criminal Case Management and Jail Crowding in Winnebago County, IL year has been the number of defendants released to the Illinois Department of Corrections (DOC) that is, sentenced to state prison after having been convicted of a felony. In January, 70 inmates were sent to prison: in May, there were 110; and in June there were 115. The increase in defendants sent to prison is associated with efforts by the Court to deal with its backlog, as well as with the addition of staff for the public defenders and prosecutors offices, Figure 9. Number and Selected Reasons for Inmates Released from Winnebago County, January through June Jan Feb Mar Apr May Jun Months in % Cash Bond 10% & VDL Full Cash Time Served Recognizance Release to State DOC D. Criminal Pretrial Practices The most publically visible event in an American court is a trial, and rules of civil and criminal procedure are geared toward preparing cases for trial. Typically, however, fewer than five percent of all cases in American trial courts are resolved by trial to a jury or to a court without a jury. Data for the first half of calendar-year 2012 show that Winnebago County is no different than courts in other jurisdictions. Figure 10 below shows how criminal felony (CF), misdemeanor (CM) and DUI (DT) cases were disposed during that period. 31 Source: Winnebago County Sheriff s Department, Jail Statistics: Booking Breakdown to Date 2012, (as downloaded on September 18, 2012). This chart does not include all of the reasons for inmate release at any given time. Rather it highlights reasons considered most relevant for the discussion in this section. National Center for State Courts Page 21

30 Figure 10. Trial and Nontrial Dispositions for Winnebago County Felonies, Misdemeanors and DUI Cases, January through June % <4.4% >95.2% Nontrial Bench Trial Jury Trial Figure 10 shows that jury trials accounted for less than half of one percent of the cases disposed during this time period. From the data available on bench trials, NCSC could not determine what portion of the cases scheduled for bench trials were actually disposed by trial. It is likely that some portion of those set for bench trials were resolved by plea or other nontrial means, so that the portion of cases disposed without trials probably exceeded 95.2%. As Figure 10 suggests, the great majority of criminal cases were disposed by means other than trial. It is obvious from this that a good deal of attention must be given to the efforts by the Court and the lawyers in those cases before any trial to a jury or to the Court without a jury. During the NCSC visit to Winnebago County, responses to interview questions allowed the NCSC project team to develop some understanding of what occurs in the Winnebago County Circuit Court process for criminal cases after the arrest and pretrial release decisions discussed in the preceding section. 1. Court Proceedings and Prospects for Disposition before Trial. O In most misdemeanor cases, a defendant who is able to post the required amount of bail is released until the initial court date. A defendant who cannot post bond or is charged with a serious criminal offense is 32 Sources: NCSC analysis of (a) updated spreadsheets with Winnebago County data on criminal cases filed and disposed, January-June 2012, as summarized in Appendices B (total dispositions) and C (bench trials scheduled in disposed cases, of which NCSC assumes at least some were disposed by means other than trial); and (b) jury trial data provided by the Office of the Trial Court Administrator (see Appendix D). National Center for State Courts Page 22

31 detained in the Winnebago County Jail and must be brought before a judge for a bond hearing within hours after arrest. n a defendant's initial court date, a judge formally arraigns the defendant by notifying him or her of the pending charges and penalties. The judge also informs the defendant of his or her constitutional and statutory rights. If appropriate, the judge will also consider appointing a public defender to represent the defendant. The initial court appearance is a possible opportunity for a case to be disposed by plea or other nontrial means, although defendants are much more likely to enter a plea of not guilty in a felony case. Following the arraignment, a defendant has the right to a decision whether there probable cause for him or her to be prosecuted on felony charges. Probable cause can be determined through a preliminary hearing before a judge, which can be another opportunity for disposition by plea if the State and the defendant can reach a negotiated agreement. Probable cause can also be determined through the presentation of evidence by the State s Attorney to a grand jury for citizens to decide whether to return an indictment charging the defendant with a felony. The prosecutor decides whether to proceed by way of preliminary hearing or through a grand jury. If probable cause is found, prosecution and defense begin preparation for trial. Critical to preparation for trial is the discovery process, involving such evidence as police reports, digital audio or video evidence gathered by police at the scene of a crime, medical examiner reports, or laboratory results. Status hearings may be set by a judge to determine case progress. Either the defense or the prosecution may file pretrial motions regarding the admissibility of evidence. The court s ruling after a suppression hearing can often be dispositive, since either prosecution or defense may decide not to proceed to trial after the ruling. Any decision to plead guilty is up to the defendant, with whom the assigned public defender or private defense attorney must have sufficient contact to establish confidence that the defense lawyer will try to obtain a favorable outcome in discussions with the prosecuting attorney. The defense attorney may ask the judge to directly participate in the plea bargaining process in a 402 Conference, in which the judge and the attorneys discuss the charges and what might happen if there were a trial conviction and sentencing in the case. To provide an additional setting for prosecution and defense to discuss the possibility of a negotiated resolution, the court may hold one or more pretrial conferences leading to a final pretrial. If no agreement can be reached, the plea bargaining process usually ends and the case proceeds to listing for trial. 2. Current Pretrial Practices. In the current criminal court process, there is very little early case preparation by attorneys. This means that there is no early opportunity for the defense to scrutinize the strength of the State s case. There is also no early opportunity to distinguish National Center for State Courts Page 23

32 cases with little further discovery needs from those that may present particular discovery problems. Discovery completion is a major source of delay. As is the case in many trial courts around the country, there is no policy-level coordination of ways to resolve discovery delay problems. Specific problems include the provision of law enforcement electronic evidence (such as any audio or video recordings) or the results of tests conducted by the State Crime Laboratory. Neither of these examples can be resolved in the courtroom by an individual judge in an individual case. Instead, they require concerted effort by the Court working at a policy level with the State s Attorney, the Public Defender, and others. If Figure 10 demonstrates that at least 95% of the felonies, misdemeanors and DUI cases in Winnebago County are resolved by plea or other non-trial means, then the essence of case management by the Court is to create circumstances for attorney readiness to discuss the prospect of a negotiated outcome. In part this has to do with the completion of discovery. From a defense perspective, discovery must allow defense counsel to identify of any suppression issues. Moreover, the defense must be comfortable that risk of potential ineffective-assistance-of-counsel claims has been reduced before there can be a prospect of meaningful plea discussions. Yet those interviewed by NCSC indicated that there are problems with quality of plea discussions, arising from contention over State s Attorney plea offers. More specifically, defense counsel see prosecution offers as too harsh in relation to expected sentences. The prosecution is reluctance to modify its offers; and then plea offers are withdrawn once a case is set for trial. E. Scheduling Events before Trial With some minor variations, the rules of criminal procedure for most state trial courts contemplate that a typical criminal case may have five or six court events other than hearings on any motions that may be filed: (1) an initial hearing for pretrial release decision and arraignment on police complaint; (2) the determination of probable cause; (3) if the defense claims there are constitutional issues with some prosecution evidence, a hearing on a motion to suppress evidence; (4) a pretrial conference or other event before trial to consider negotiated resolution; (5) if there is no negotiated resolution or other nontrial disposition, a jury trial or bench trial; and, if the defendant is found guilty, (6) a sentencing hearing. Since almost all cases are disposed without trial, and since sentencing is typically done in the same event when a guilty plea is offered, a reasonable trial court goal might be to have most cases disposed with no more than three or four scheduled court events. National Center for State Courts Page 24

33 1. Scheduled Court Events. Based on data provided by the Winnebago County Department of Information Technology, Table 5 shows how many court events were scheduled in each of the different major types of criminal cases that were disposed during the first half of Table 5. Scheduled Court Events in Winnebago County Criminal Cases Disposed from January through June Criminal Case Type Average per Case Maximum in One Case Felony (CF) Cases Misdemeanor (CM) Cases DUI (DT) Cases Contempt (CC) Cases Traffic (TR) Cases Ordinance Violation (OV) Cases Conservation (CV) Cases As the table suggests, the cases with lesser sanctions and less likelihood of pretrial detention in the Winnebago County Jail (contempt, traffic, ordinance violations and conservation cases) were commonly resolved with four or fewer scheduled court events, although one traffic case had more than 100. Even though there was a marathon misdemeanor (CM) case with 124 scheduled court events, the average number of events per case was not outrageous, and Appendix C shows that 75% of the misdemeanor cases had nine or fewer events. Perhaps because DUI cases predictably rely on evidence involving blood-alcohol test results and on challenges to the reliability of sobriety testing as applied in the field, such cases had an average of 3.5 more court events than non-traffic misdemeanors. As the data show in Appendix C, Table C-6, at least one-fourth of all DUI cases disposed during this time period had 14 or more scheduled court events, and one case had 107 scheduled events. The data show that felony cases, which have the highest likelihood of pretrial detention in the Winnebago County Jail, had the highest average number of scheduled events and the most events (127) in one case. Moreover, the data presented in Appendix C, Table C-1, indicate that 33 Source: NCSC analysis of data on hearings in criminal cases disposed during the period January-June 2012, as provided by the Winnebago County Department of Information Technology. See Appendix C for more details. National Center for State Courts Page 25

34 at least one-fourth of all felony cases disposed during this time period had 16 or more scheduled court events Rescheduling of Key Court Events before Trial. Responses to NCSC questions in interviews with Winnebago County stakeholders elaborated on what Table 5 shows. Court events before trial are scheduled and then rescheduled often. They said that cases often have multiple status calls, and that they can also have multiple pretrial conference settings. NCSC concludes from the interviews that any judge management of continuances arising from discovery and plea negotiation problems is not successful. Problems with so many rescheduled court events have a negative cascading effect. Because lawyers must appear in court so often, then are unable to do their out-of-court work, including interviews with parties and witnesses. And because they are unable to do their out-of-court work, the lawyers find that they must ask more often for scheduled court events to be set over once again. Data provided by the County Department of Information Technology confirms these interview observations, as is shown in Table 6 below. For felonies, misdemeanors and DUI cases, the table shows how often cases have critical pretrial court events, including 402 conferences, status hearings, pretrial conferences, final pretrials, and plea hearings. As the table shows, not every case had these events. Moreover, the portion of felony cases that had them was different from that for misdemeanors, which in turn was different from that for DUI cases. Thus, almost three times as many felony cases had 402 conferences as there were in misdemeanors and DUI cases. More than four out of five felony cases had status conferences, while they were held in less than half of all misdemeanor cases and less than onefourth of all DUI cases. By contrast, pretrial conferences were held in felony cases only onethird as often as in misdemeanors and DUI cases. Final pretrials were held in three of ten DUI cases, which was more frequent than in either felonies or misdemeanors. Finally, plea hearings were scheduled in more than twice as many DUI and felony cases than in misdemeanors. 34 It is important to appreciate how much the three cases in Table 5 with more than 100 scheduled court events apiece cost in terms of wasted time for case participants. If we realize that each event involves the time of support staff as well as judges, lawyers, corrections officials, and law enforcement officers, as well as citizens, we are likely to find that each court event costs an average of $500 or more in terms of total salaries and fringe benefits. Such personnel costs are over and above any actual cost outlays for such things as transport to court proceedings for prisoners, out-of-town witnesses, and other case participants. If those three cases had reached disposition with just an average number of scheduled court events, they would have needed at least 325 fewer scheduled court events. On that basis, we can estimate that the additional court events may have imposed an extra cost of about (325 X $500 =) $162,500. In other words, the additional court events in these three cases alone might conceivably have cost Winnebago County the full-time equivalent of one assistant prosecutor or one assistant public defender, working with an administrative support staff person. See Appendix E for more on this perspective. National Center for State Courts Page 26

35 Table 6. Number of Key Pretrial Court Events Scheduled in Felony, Misdemeanor and DUI Cases Disposed from January through June Case and Court Event Type Felony CF) Cases Percent of Cases with One or More Average Number of Events per Case Maxim Number in One Case 402 Conference 34.5% Status Hearing 82.4% Pretrial Conference 24.6% Final Pretrial 26.0% Plea Hearing 36.3% Misdemeanor (CM) Cases 402 Conference 12.1% Status Hearing 48.8% Pretrial Conference 74.1% Final Pretrial 18.6% Plea Hearing 15.4% DUI (DT) Cases 402 Conference 13.1% Status Hearing 22.8% Pretrial Conference 77.1% Final Pretrial 30.3% Plea Hearing 41.7% If the events in Table 6 did not occur in every case, they were as likely as not to be scheduled and then rescheduled at least one more time in the cases where they did occur. As stakeholders told NCSC representatives in interviews, status hearings were commonly set and reset because prosecutors or defense attorneys had not yet been able to complete the out-ofcourt activities, such as discovery exchange, that would put them in a position to decide whether cases could be resolved by plea or must be scheduled for trial. Thus felony cases with 35 Source: NCSC analysis of criminal case hearing data provided by the Winnebago County Department of Information Technology. For more details, see Appendix C. National Center for State Courts Page 27

36 status hearings had an average of more than six of them, and one case had 65; misdemeanor cases with status hearings had an average of more than three, with 42 in one case; and DUI cases with status hearing had an average of almost 2.4 per case, with 31 in one case. Cases set for pretrial conferences were also likely to have them reset more than just once. Felony cases had an average of almost five per case, with one outlier having 42; misdemeanors had an average of 2.5 per case, with 37 in one case; and DUI cases averaged more than five per case, with 41 in one case. F. Scheduling Cases for Trial In the view of stakeholders interviewed by NCSC, Winnebago County is seeing an increased number of criminal cases being listed for trial. This is in part a consequence, they say, of the breakdown in plea negotiations discussed in Section D above. In addition, it is said to be a strategic policy of the State s Attorney s Office to show readiness to try cases as a way to gain an advantage in plea discussions. Unfortunately, a result may be that there are more weak cases being tried. 1. Scheduling Trials in Cases Most Affecting Jail Population. In addition, NCSC concludes from interviews that there is little certainty that cases on the trial list will actually go to trial on the date that is scheduled. Different factors contribute to this. First, there are a number of cases not resolved by plea before they are listed for trial. Second, the structure of jury weeks means that there may be considerable elapsed time until a next available trial date if a case must be rescheduled. In addition, The Court appears to place no explicit emphasis on limiting trial date continuances. Finally, the Court s creation of a backup judge position, which would allow judge availability for trial if there were more ready cases than assigned judges to hear them, is little used. Table 7 shows how many felony, misdemeanor and DUI cases disposed in the first half of 2012 were listed for trial, and how often they were reset. A much higher portion of the cases were listed for jury trial than for bench trial. Almost half of all DUI cases and about one-third of all felony cases were listed for jury trial, while fewer than 15% of the misdemeanor cases were. A much higher portion of DUI cases were set for bench trials than either felonies or misdemeanors. Regardless of the case type, any case listed for trial was likely to be set over to a subsequent date at least once. In the most extreme circumstances, cases set for jury trial were rescheduled more than 20 times. National Center for State Courts Page 28

37 Table 7. Bench and Jury Trials Scheduled in Felony, Misdemeanor and DUI Cases Disposed from January through June Case Type and Type of Trial Felony (CF) Cases Cases Set for Trial as Percent of All Cases Average Number of Settings per Case Maxim Settings in One Case Bench Trial 4.3% Jury Trial 33.7% Misdemeanor (CM) Cases Bench Trial 2.9% Jury Trial 14.7% DUI (DT) Cases Bench Trial 7.8% Jury Trial 47.1% In an effort to gather information for managing cases set for jury trials, the Circuit Court has directed the Office of the Trial Court Administrator to maintain records of what happened in cases listed for jury trials in NCSC was given an opportunity to study the records for the 20 jury weeks in the first six months of the year. For details of the NCSC analysis of those records, see Appendix D. 2. Results for Criminal Jury Dockets. Figure 11 shows what happened with all criminal cases (whether felonies, misdemeanors, DUI cases, or other such matters with a right to jury trial) that were scheduled for jury trials from January through June. There were actual jury trials in fewer than six percent of those cases. Defendants pled guilty in 19%, and a little more than four percent were dismissed. Thus only 29% were disposed by trial or otherwise on the scheduled trial date. Over half of the cases were continued to a later date. Defendants waived trial by jury in 14%, and there were failures to appear (FTA) in 2.5%. The great majority (70.7%) were thus not resolved on the dates they were set for trial. 36 Source: NCSC analysis of criminal case hearing data provided by the Winnebago County Department of Information Technology. For more details, see Appendix C. National Center for State Courts Page 29

38 Figure 11. Outcomes for All Criminal Cases on Dockets for Winnebago County Jury Weeks, January through June % 54.1% 19.1% 14.1% 4.4% Jury Trial Held Guilty Plea Dismissal Jury Waiver FTA Continued 2.5% As a practical matter, having a case listed for jury trial did not mean that it would be resolved on the day set for trial. Just as constant rescheduling of different events before trial can have a cascading negative effect, in which lawyers and parties become increasingly less likely to be prepared on any given date, uncertainty about whether a case scheduled for trial will actually be tried on the assigned date creates a negative feedback loop of the sort illustrated in Figure 12. As Figure 12 suggests, attorneys who are unprepared request that the Court grant continuances. If the Court is too easy in its continuance policy and grants too many continuances, then the judge s docket for the day collapses, and his or her time is underutilized. If the Court is not aware of its calendar dynamics, it may add even more cases to the next day s docket, making for a very long trial list. Attorneys who are low on the Court s trial list do not expect their cases to be reached, and they are unprepared. If they are reached, however, they must then request continuances, so that the vicious cycle starts all over again Source: NCSC analysis of data on all cases set for jury trial, from January 1 through June 30, 2012, as recorded in Jury Trial Update reports by the Office of the Trial Court Administrator. See Table D-1 in Appendix D for more details. 38 For a model continuance policy designed to avoid the problems illustrated in Figure 12, see Appendix F. National Center for State Courts Page 30

39 Figure 12. Negative Feedback Loop between Trial Scheduling Practices and Continuance Practices Jury Waivers. The data reflected in Figure 11 show that defendants waived the right to trial by jury in about one case in seven (14.1%) of the matters set for jury trial. In the best of circumstances, a jury waiver would result in a bench trial on or soon after the date that the waiver was granted. Such a bench trial might be a full contested evidentiary hearing, at the conclusion of which the judge makes findings of fact and imposes sentence if the defendant is guilty. Or it might be what some call a slow plea, with the prosecution making an offer of proof to establish a prima facie case for conviction and the judge then imposing sentence. In either case, a jury waiver results in a disposition. Data provided by the Office of the Trial Court Administrator demonstrate that this is not always the case in Winnebago County. As Figure 13 below indicates, only about a third (34%) of the jury-waiver cases was set for a bench trial to be held on some other date. The largest portion (39%) involved cases that were continued for a subsequent plea hearing. The remaining outcomes were less certain set for a 402 conference, a status hearing, a possible plea, or a 39 Source: Maureen Solomon, Caseflow Management in the Trial Court (Chicago: American Bar Association, 1973), p. 50. National Center for State Courts Page 31