only be made after a full blown adversary hearing the issue here in this case is not simply whether a person has the right to be admitted into the cook county sheriff's electronic monitoring program but whether the sheriff has the unilateral authority to override a person's factual question about the record your opponents say that they have looked at the various orders that the cook county circuit court entered and many of them don't say anything about sheriff dart's electronic monitoring program in the that there are under state law three other programs which are under the authority of the courts but if it doesn't specify then that's a problem and the other thing  i'm not clear about is why a federal court is the right body to be assessing whether sheriff dart is in effect in contempt of court of with respect to  order of the cook county circuit court you sets essentially what you're saying you're saying he got this order from the state court he fled currently refused to abide by it and that somehow we as a federal court should is this is not about holding the sheriff in contempt of court it is about the constitutional rights of the individual p detained for three went to a policy which we contend does fall wearily with and the federal courts purview under nine hundred and eighty three maybe i'll go back to the st question it would help me a lot i couldn't find it maybe it's just that i wasn't looking in the right place but i couldn't find actual copies of the individual orders in these cases and it's my understanding that the circuit court of cook county was not issuing unconditional release orders it was issuing release orders that said you can be released if you're under electronic monitoring or electronic  and williams order is quite clear in telling the thing that this is for the sheriff and if the sheriff doesn't put her in the program for some reason he needs to remand or to the court within seventy two hours there's a different form for the somebody else that's in the record but the but the williams order is very specific about t about the share yes and thank you for for reminding me of that and i would say that one thing that the function of the cook county circuit court criminal system is that not every judge does everything exactly the same the way that the with the condition that they be on electronic monitoring they are intending them to be on the sheriff's electronic monitoring program and that the sheriff understands them to be doing that there are what why do you know why do we know that it's the sheriff's monitoring number one and why taking the language that judge hamilton has helpfully mentioned why doesn't that actually show that the court recognizes that the sheriff has discretion there's the seventy two hour they were not notified themselves their lawyers were not notified so they were not referred back to the court they were just detained indefinitely and it wasn't until individual people took individual actions and on the filing the lawsuit that ultimately people were  for one we contend that you know when there's a policy going on that that is a perfect you know the perfect remedy of havingness i don't court stepped in and the injunction that we've sought because it just is impractical to have individual defendants seeking individual relief on individual cases in this manner but what i would say is that whether or not it's explicitly written in the order from understanding what happens as a criminal attorney which i am as well it's very clear that courts put people on the sheriff  has identified and this is a disputed issue that there are other programs that would take these individuals but that is simply not borne out by the fact this sheriff is the chief judge the program is extremely limited they have an extremely limited number of bands and the who physically do not have a home to be put on so i agree that there is some discrepancy on the written order but our position is that that is sort of a red herring or a discrepancy only on the plea for and that you know what will be borne out by the of release i'm not sure where we see a power in the court to require the sheriff to have somebody on monitoring maybe there's a power in the court to require the sheriff to make a decision yes i'm going to accept you know i'm not going to accept you and maybe there's a power in the court to enforce the seventy two hour window or maybe give reasons or something but i don't know where you find the the just the basic power to say as soon as the court says you can be released if you post bond and you are put under electronic monitoring that the sheriff in a ministerial sense has to just add them it does indicate that he must comply with court order and it also indicates that the court this is the statue of the plea that the sheriff referred to that the court may impose other conditions such as the following and they list non exclusive with conditions including that someone remain in the custody of a person organization agreeing to provide a really i understand in the case that the sheriff after the fact is not agreed to superbike these individuals and this away however he had agreed to be the supervising body for this discussion about what subject to means and so on is correct order says not we're just releasing you on your own recognizance or some more liberal form of release we're willing to release you if you can be put in a court in a in an acceptable electronic monitoring program then i don't know that the sheriff has been told by the court he has to put them in electronic monitoring he's just told you know if you can then this person is entitled to be on release so it really depends i read the court order just as much as it depends on the sheriff's action i think your question it's a good point and i would say that uniformly and we would have davus and the fact of the case and what we plead is that these individuals were ordered by the court to be placed on the sheriff's electronic monitoring as what we call a special condition of bond and we would contend that that was clear to the sheriff and that that was clear from the judge and that also that one of the argument that we make is that special conditions of bond of which there can be other than additions electronic monitoring for example a stay away order or zero tolerance to drugs and alcohol or various other conditions are subservient to the overall issue of fun in other words there are many subsequent conditions the bond that that someone might have to comply with after they are released so if the court is inclined to say that the fear does not have to comply with the orders which we can  do as it relates to putting them on the electronic monitoring program we contend that they then must at least release them pursuant to the binder they posted and paid and if there is some other agency which really doesn't exist that would need to put them on the court then decide to change their conditions of bond at their next court hearing that is similar to someone being released and being told you have to be out of say away order you cannot go to this location as a condition of your vile and other factors so our position  court orders are clear that that person is to be placed on the sheriff's electronic monitoring program and that the sheriff understood that and then unilaterally without providing any information to the court without having the case for me and it without taking any action to preserve the constitutional rights of the person who had been given a bond and posted bond let them remain in the county jail and we can pound that even if they are not required in the state law to accept them into the program that they can't then just keep and there it says unilaterally necessary at the time to certify it and that the constitutional issues which are the main issues of the case for example something to do process can be decided without that you're talking about is almost you've got to be there to know the  situation between the relationship between the courts in chicago and the state's attorney's office and notwithstanding as the of the fact  sheriff's office that's an independent constitutional office in the state of illinois what happens you know that's that's a legal issue is there indeed a legal obligation on the sheriff to spend as much money as he needs to spend in order to run an electronic monitoring program that is extensive as the court wants it to be or is it really up to the sheriff to decide you know i'd really rather have people charged with nonviolent offenses here i don't want to get into who was ultimately acquitted and who's going to be making a decision or stand your position to be that also implied in the th amendment is the expectation of one force that will comply with the judge's decision yes so i think that those things be that if a judge warders electronic monitoring the sheriff test to make a decision and do so promptly and that the sheriff's practice repeatedly fully up his  supreme court's decision and well you know some of the th and then it still turns on whether or not there is valid probable cause in this case the plaintiff had made no allegation that there was no valid probable cause for them to be therefore there is no fo with regard to are we talking about the bond ordered by the court your honor let's take it one step at a time suppose the judge had simply ordered release upon the payment of bond without  the condition about electronic monitoring just said you know pay a bond of whatever amount of money and the person pays the bond and the sheriff is now required to release them pending trial right sheriff yes we are a lot of actually decided that was a bad idea the sheriff would be reported under those circumstances to release an individual if they posted bond but that's not the facts that we have here in this case the judges have ordered as a condition of bond electrical monitoring but you know i've thought about the whole point i've thought about the fact that he could shut it down tomorrow but until he shuts down why has he not required when a judge has said you know this person can be released if this extra safeguard electronic monitoring is put in why does he not need to make that program available to those people until he shuts it down reminds me of the law about appell states aren't required to provide appellate review but as long as they do they have to allow people nondiscriminatory and open access to it sure and i would address that again by beginning with this would be a procedural due process question as to whether or not the sheriff is justified or has in the gym it right or a rational basis for continued detention and that's how the supreme court has done these analyses with regard to pretrial detention more pointedly your honor when you say why is he not required to release and then it's because the electronic detention you know monitoring law specifically states the legislature granted the sheriff and the supervising authority the right to set terms and conditions person or offender with an electronic device with within with outside their home under the terms and conditions of stablish by the supervising authority and in this definition section the sheriff is included as one of those in numerated supervised authorities so therefore again we would reiterate that the legislatively granted right to set terms and conditions necessarily includes the right to exclude somebody from his program should the sheriff even choose to operate an electronic home monitoring and i want to say that pretrial services or of court services with the office of the chief judge saree though she says that there really is no program in those offices that's true those those answer to that is simply this if this court does not need to answer in either would be illinois supreme court would not need to answer the statutory interpretation question related to an illinois circuit court's authority to order sheriff to put somebody in dropped so they don't have the syrians or the th amendment so that at at the moment of the bond hearing when they're told you can go free and then they don't wind up on electronic monitoring they're in effect receive their seized again and kept in detention based on the for them to distill probable cause and that's not the issue here the correct constitutional analysis for the present case is procedural due process and that claim has been abandoned by the plate to say the district court with the facts before it but it says th amendment reason the detention is on a lawful and actually if you take that one step further the court and a number of ways have been saying you know once you've been convicted and you're in prison it would be the th amendment that would speak to unlawful continued detention after your sentence is over one occasionally see such cases but in the pretrial stage it's the th amendment they're telling us that we turn to if there is  most pointed without getting into the points that plate of council was making about what everybody understood about more vague orders what troubles me most is the alleged pattern of in essence like to see it the sheriff did not silently disagreeing with court orders there was a procedural issue that the sheriff has and that's that he doesn't have standing at the time that the bond orders are entered or even after the denial and what i mean office that they didn't have standing to object to the court's assigning them to pretrial detainees and they were asking the state's attorney's office to object and the state attorney's office did not want to get involved and would not  object on behalf of the sheriff after the sheriff then denied individuals into his electrical monitoring program he still did not have standing to bring that to the court and ask the court for a review the conditions of bond example the cook county sheriff on a daily basis provided the courts the state's attorney's office and the public defender's office with a list of people but it was rejecting from its him to put them on notice that this was happening to get people who had stand in happening in the in the circuit courts was that we had several different judges issuing several different orders and the threat against the sheriff was content and these contempt orders were not friendly contempt there were many who wanted people put in custody for defining their orders that didn't have a choice to let one of these issues go through the state court to hear it it would have resulted in somebody being held in contempt and moreover even if he did not want to go through for this issue to be addressed by the courts it wouldn't have made the district courts and continue to order people more and more of these issues would have popped up and more threats of contempt so that all sounds like a pretty good reason turns on whether or not a fundamental right has been implicated and i think that we've already addressed that this is not a fundamental right and it's properly therefore addressed under procedural due process which is that abandoned by the plaintiffs to their own detriment and that leaves t county's county code monitoring in a pretrial detention setting as i said in the beginning to reiterate he can shut the program down tomorrow so that creates an interesting question about what sort of right is due to any detainee receives electric monitoring as a condition of bond moreover to interpret the statutes the way that we provided to this court again there's no violence to the online bill statutes and district courts still have the authority to order their own agencies to place individuals explicitly requires anybody who is going to monitor somebody is released to explicitly agreed to supervise that release and any circumstances the sheriff is not there for your honour's we would ask that in a single exhibit provided by the plaintiffs sheriff dart provides the demographic breakdown of the inmate the cook county jail as well as the demographic breakdown of those put on electrical monitoring publicly on its legs and we say to that in our brief he's been doing this for about two years because this year believes in transparency which means that the plaintiffs didn't have to cherry pick this particular exhibit all of the data was available to the to the plaint on electrical monitoring has been ordered to be on electrical monitoring and the statistic you're asking for if we look at the publicly available information is that seventy to eighty percent of them program is comprised of african americans so therefore we have the answer to to your question percent plus by the point this is insufficient to sustain an equal protection question it doesn't show in and of itself that there is a discriminatory purpose as i said we would have to know from there are statistics what the percentage of individuals place many of them was not just the percentage of those that were denied so that claim facially doesn't meet the necessary requirements moral grounds and so there is publicly available information that they chose not to use that this court can  the case then that might be but my understanding from the public data and you know is that it simply says that the overall jail population which is you know fluid and changing as that seventy to eighty percent not with the big doesn't specifically address those other individuals on the electronic monitoring program and so at this point you know we did actually file a motion for discovery in the district court seeking justice information a list of who was it was not permitted on the electronic monitoring program pursuant to the policy and the just record denied our request for that the vast majority of those based on what we could determine from the public record of course additional discovery would be needed to determine those individual races from something other than the sheriff determination or our determination and the proper comparative or when we place that with the statement that were made by the sheriff and his policy officer related to this decision you know we believe we have enough to state that claim you know i would also note that court has instructed us many times to be very careful about defaulting to substantive due process particularly i think if there is a different part of the constitution that seems to speak more directly to the problem that issue here i would say the  amendment would be that other of the constitution it seems like a risky strategy whether it's shocks the conscience or whether it's fundamental aspect of ordered liberty and so forth the