News / The Fair And Just Journal

By Sofia Tagkaloglou 

When we talk about reforming the criminal legal system, there is a big difference between changing a policy on paper and changing practice in courtrooms. Although the US Constitution enshrines the right of public access to court proceedings, in states like Illinois, the judicial branch is not subject to the Freedom of Information Act (FOIA) nor is there a public commission on judicial performance. While the State Attorney’s Offices are subject to FOIA, public performance evaluations are not regularly produced, and one state’s attorney’s transparency efforts, such as the Cook County’s Prosecutorial Performance Indicators (PPIs) dashboard, can be easily reversed by the shifting priorities of a new administration. 

So, how do we know when reform is truly being implemented in court proceedings and whether individuals are experiencing different legal outcomes – especially during prolonged disruptions in the legal system, such as a pandemic?

Court-watching has been a tool for courtroom accountability used by community organizations, prosecutors, professors, and even elected officials who are concerned with efficiency, transparency, and fairness of legal outcomes since the Civil Rights Movement. Court-watching is the practice of systematically observing legal proceedings and recording specific pieces of information such as judicial and prosecutorial behavior and culture, general court functioning, and case outcomes. By recording and reporting on stories that are otherwise not available and data that are not captured in official records, court-watching projects offer an important level of oversight within court proceedings. Their observations can help identify patterns of bias, procedural inefficiencies, inconsistencies in sentencing, and issues with the implementation of policy reform. 

The data collected by court-watchers can offer prosecutors and policymakers a clearer picture of how justice is administered. We can look to Chicago for a rich legacy of court-watching efforts that have driven accountability in both judicial performance and bail reform implementation.

A Brief History of Court-Watching in Chicago

Court-watching projects originally began with the idea that the mere presence of an observer could potentially reduce verbal abuse and legal misconduct in the courts. An early recorded example of a reform-minded court-watching project emerged during the Civil Rights Movement, when the Illinois League of Women Voters initiated a program to observe whether procedural justice was being administered in several courts across the state. The program was funded by the Illinois Law Enforcement Commission and implemented by trained volunteers, resulting in several reports that were produced in collaboration with professors, local and state bar association members, judges, and community members. The research intended to address the lack of accountability in Illinois courts regarding procedural fairness and judicial conduct given the state’s lack of oversight for judicial performance, and was publicly disseminated for both reform advocacy and community education. Though the project was only funded for a few years, court-watching has remained a tool for judicial accountability in Illinois.

Since the mid-2000s, the Chicago Council of Lawyers (CCL) and Chicago Appleseed have been the dominant drivers of court-watching efforts in Cook County. In 2008, they started the Judicial Performance Commission of Cook County to increase accountability in judicial retention and used court-watching to supplement survey and interview data on judges. This work evolved into the program of annual state judicial evaluations that the CCL continues to produce today, demonstrating how legal professionals recognize the value of the first-hand, empirical perspectives that court-watching provides.

Coalition-Building for Bail Reform and Implementation

Chicago Appleseed has also utilized court-watching to monitor implementation of policy reforms. In 2010, Chicago Appleseed conducted court-watching at the Central Bond Court to determine what changes had been made since their 2008 policy recommendations were implemented. Through this effort, they found that bond court hearings were rushed – typically lasting less than two minutes – and that defendants often lacked legal representation and a meaningful way to present their case. 

In 2016, the Coalition to End Cash Bail was established by a variety of advocates including community organizations, faith leaders, social service providers, lawyers, and policy experts to advocate for bail reform in Cook County. Chicago Appleseed led the charge on a court-watching program to monitor the implementation and impact of the 2017 county court order that aimed to limit monetary bonds to amounts that people could afford to pay. The resulting report found that while pretrial release doubled and use of monetary bonds was halved, half of cases where bonds were issued had amounts above what the accused person could afford to pay. Judicial discretion also produced substantial differences in bail amount outcomes between judges. The need for statewide reform was clear, so the Coalition launched the statewide Illinois Network for Pretrial Justice in 2019, growing to over 100 organizations across the state. 

As the Covid-19 pandemic began in 2020, the Coalition to End Cash Bail in Cook County quickly mobilized to advocate for mass releases and used court-watching to assess legal outcomes. The pandemic brought awareness to an information gap in bond courts, in that there wasn’t any specific agency or court tasked with collecting consistent data in bond hearings. After requests from the mayor and the county board president, the Cook County Public Defender’s Office began collecting data, supplemented by the Coalition court-watchers. 

The data collection effort uncovered a wide disparity between the promises to release individuals and the actual rates of bond reductions. The Cook County State’s Attorney’s office promised to focus on violent offenses and dismiss low-level cases to battle the backlog, but data showed that Assistant State’s Attorneys declined to release in between 70% and 80% of people with bond reduction motions. It also found incidences of unaffordable bond amounts and release denials that disproportionately affected Black people. With the right to a speedy trial paused during the pandemic and over 90% of detained individuals awaiting trial, the Coalition raised public awareness about the overwhelming court backlog and the urgent need for pretrial reform.

These advocacy efforts and the largest civil rights protests in US history created the political conditions for the 2021 passage of the Illinois Pretrial Fairness Act, which made Illinois the first state to abolish cash bail. In anticipation of the policy going into effect in 2023, court-watchers who were part of the statewide Illinois Network for Pretrial Justice returned to bond courts in several counties to document how the courts functioned just before implementation.

Following implementation, volunteers began monitoring whether judges were adhering to the policy or circumventing the law through alternative methods to continue penalizing people. Court-watchers have also been gathering evidence to push back on opponents’ misinformation campaigns around increases in crime rates as a result of the policy. With bail reforms being challenged in other states, court-watching is helping advocates prepare for both successful policy implementation and to defend against legislative rollbacks. 

Takeaways

For transparent and effective criminal legal system governance, public entities must collect and make accessible data on case processing and outcomes. This would allow grassroots efforts to devote resources to evaluate which reforms are effective and what improvements can be made, instead of gathering case data that government entities are already positioned to collect and make available. Many prosecutors have already advanced transparency efforts by developing public-facing dashboards to release office data and statistics across a variety of variables. As reform-minded leaders look to build data capacity in their offices to identify inequities, they should consider how court-watching collaborations can complement their data analysis strategies to enrich their jurisdictions’ understanding of courtroom outcomes.

Court-watching has long been a powerful tool for holding the legal system accountable, and today, it has grown into a nationwide movement. Across the country, organizers are carrying forward the legacy of grassroots oversight, ensuring that courtroom proceedings are fair and transparent. On this path of accountability, prosecutors would do well to reckon with court-watching results with integrity, even when the findings may challenge their preconceived beliefs.

Sofia Tagkaloglou is a Program Associate in Operations and Research at FJP. She is also a volunteer court-watcher with the Chicago Appleseed Center for Fair Courts and a Legal Observer with the National Lawyers Guild Chicago.