An appeals court said a Livingston County judge abused her discretion in refusing to grant pretrial release to a man accused of soliciting a child for sexual conduct online.
The ruling centers on Judge Jennifer Bauknecht’s statements questioning the Illinois law that abolished cash bail and the ability of the legal system to assess the risk a defendant presents to the public.
In October, Bauknecht ordered 24-year-old Brandin Atterbury of Springfield jailed before his trial. The Fourth District Appellate Court has ruled Atterberry deserves another hearing to decide whether he should be jailed before trial or released with conditions. Prosecutors accuse Atterbury of using social media to entice what he believed was a 14-year-old girl and then driving to Fairbury to meet her for sexual activity. The "girl" was, in fact, a police officer.
In her initial decision, Bauknecht wrote that even though Atterbury has no prior record and scored a zero on the pre-trial risk assessment, there is no way for the county pretrial services to verify Atterbury is not communicating with a child. She also wrote many similar cases she has seen involve defendants with no previous record.
“I do not think that the community and specifically all children under the age of 18 can, that their safety can be meaningfully achieved with any other conditions of pretrial release,” wrote Bauknecht.
She was critical of the Pretrial Fairness Act that abolished cash bond saying it took away judicial discretion. She noted the new statewide Office of Pretrial Services created under that law has five layers of bureaucracy yet many people linger in jails awaiting transfer to the Department of Human Services for mental health treatment.
“Monetary bond would have taken into consideration his ability to pay. The Defendant may or may not have been able to post that. However, that would have served as a very strong deterrent for the Defendant; and the risk of losing that bond money has historically proven to provide a good incentive for people to not continue to engage in criminal behavior,” said Bauknecht.
But appeals court justice Kathryn Zenoff wrote Bauknecht "failed to and refused to" consider some pretrial release conditions such as electronic home monitoring that could have safeguarded the public, and then rebuffed Bauknecht's critique of the law.
“The court included in its ruling a lengthy and biased commentary about the wisdom of Illinois’s recent bail reform. The wisdom of legislation is never a concern for the judiciary,” said the opinion. “Our role is not to judge the wisdom of legislation but only to determine when it offends the constitution.”
Justices Thomas Harris and Eugene Doherty joined the decision that stated detention decisions must be “individualized.”
“The court’s comments suggest it believed there are no conditions of release other than monetary bail that can mitigate the threat posed by anyone who is charged with the offenses at issue. That sentiment contradicts the spirit and purpose of the new laws governing pretrial detention,” said the justices.
They wrote judges don’t get to choose the law, they must only apply it.
“Where a law is passed by the legislature and upheld by our supreme court as constitutional, the role of the judge is to apply the law as it is, not as the judge might wish it to be,” the justices said.
When the law passed, advocates on both sides of the cash bail issue predicted there would be a number of cases and appeals needed to clarify standards judges should use in deciding what constitutes a danger to the public that requires detention.
