Cook County State’s Attorney Eileen O’Neill Burke’s recent calls for legislative changes to how pretrial release works — and criticism of the judges making those decisions — is deeply disappointing.
The presumption of innocence and due process are foundational principles of our legal system, so it is troubling to see O’Neill Burke, a former prosecutor, criminal defense attorney and judge, attacking these concepts and the judiciary’s independent decision-making.
The Pretrial Fairness Act requires judges to consider the unique facts of each case and person when deciding whether someone should be detained.
O’Neill Burke says she supports the law’s removal of the role of money in those decisions, but then suggests that the seriousness of the allegation alone should require detention.
Judges already account for the severity of the allegations when determining pretrial release, and requiring incarceration based on the charge alone would be both unconstitutional and a disaster in a county where 1 out of 3 people charged with a felony is ultimately found not guilty or has their case dismissed.
Take our client Vanessa Sanders, who was charged with first-degree murder after she stabbed her abusive boyfriend in a clear act of self-defense.
Citing the prosecution, media initially covered Vanessa as a woman who killed her boyfriend because “he pulled her hair.” In reality, Sanders had her hair ripped from her scalp before she defended herself.
Like the vast majority of people facing a murder charge, Vanessa was detained. She spent over seven years in jail awaiting trial at the snail’s pace of the Cook County courts. When finally released on electronic monitoring, Vanessa was present for every court hearing, hoping to clear her name. Earlier this summer, it took a jury one hour to find her not guilty. But a person who is acquitted never gets that time back and never gets restitution for the years of freedom they were denied.
When the question is asked, “Why are some people charged with serious offenses like murder sometimes released pretrial?” the answer is often that their cases look like Vanessa’s.
Vanessa should never have been jailed.
Despite the seriousness of her charge, the fact that Vanessa had a strong self-defense claim and the deceased was an intimate partner with a history of physical abuse shows she was not a danger to the public.
Clearly, prosecutors don’t always get it right when it comes to charging.
Giving the state’s attorney the power to effectively determine who gets locked up simply by choosing what charges to file doesn’t just undermine judicial discretion, it risks rigging the system so prosecutors control both the accusation and its consequence.
Our pretrial system, where judges make decisions based on the evidence and strength of a case after listening to prosecution and defense arguments, accounts for the fact that these are only allegations.
The prosecution’s detention requests are approved twice as often as they are denied. O’Neill Burke’s blanket policies to seek detention in many cases have caused the jail population to be higher now than before the Pretrial Fairness Act took effect. That’s apparently not enough detention, even though crime rates are at historic lows and have consistently fallen over time, despite an uptick during COVID-19.
It is also worth noting an area where O’Neill Burke has done almost nothing to hold people who commit violence against the public responsible for their actions: employees of the federal government.
The sole prosecution O’Neill Burke has undertaken since Operation Midway Blitz is a misdemeanor charge against an off-duty U.S. Immigration and Customs Enforcement agent who attacked a senior citizen filming him at a gas station — despite the option to charge a felony based on the victim’s age. The state’s reasoning was simply that a misdemeanor was “more appropriate.” In contrast, our clients who are not law enforcement officers are consistently charged with the highest possible offense.
Notably, O’Neill Burke also didn’t complain about the lack of pretrial detention in that case or demand incarceration for the agent as part of his guilty plea.
And while the state’s attorney has not acted on the staggering violence ICE has directed at community members responding to the detention of their neighbors for civil immigration violations, she has prosecuted more than 100 people for protesting that violence.
O’Neill Burke has supported important reforms, but her actions over the last 18 months have raised questions about the consistency of her commitment to fairness in the criminal process.
The presumption of innocence requires individualized decisions regarding pretrial release, and law enforcement officers deserve to be held to a higher standard — not let off easier than the public.
Sharone R. Mitchell Jr. is the Cook County public defender.