• Ben Szalinski
    MAR 15, 2023


    State’s attorneys ask Supreme Court to preserve cash bail as state argues General Assembly’s changes are consistent with the constitution

    Kankakee County State’s Attorney Jim Rowe holds a copy of the SAFE-T Act as he argues in front of the Illinois Supreme Court Tuesday. [Blue Room Stream] 

    The fate of Illinois’ proposed elimination of cash bail is now in the hands of the Illinois Supreme Court after state’s attorneys and the Attorney General’s Office squared off in front of the Democrat-controlled court. 

    The case comes to the state’s high court following an injunction by the court on Dec. 31 that blocked the law from taking effect on Jan. 1 just days after a Kankakee County judge ruled the law was unconstitutional. State’s attorneys from Will, Kankakee, McHenry, Sangamon, Kendall and Vermilion Counties successfully temporarily defeated the law. In the Dec. 28 ruling, Kankakee County JudgeThomas Cunnington ruled it was unconstitutional for lawmakers to eliminate cash bail via the SAFE-T Act and bail should be left up to the courts. 

    On Tuesday, the state’s attorneys defended the Dec. 28 ruling arguing eliminating cash bail is above the powers of the General Assembly because bail is guaranteed in the Illinois Constitution.  

    “The simple way for the legislature to accomplish all of these reforms: take the question, put it on a ballot, propose it to the people, let them vote on it in an election,” Kankakee County State’s Attorney Jim Rowe told the court.  

    Deputy Solicitor General Alex Hemmer argued the Illinois Constitution doesn’t require bail to be monetary, rendering Rowe’s argument for a referendum moot.  

    “The General Assembly was required to put this to voters and amend the constitution only if the constitution currently requires the state to maintain the institution of monetary bail and for all the reasons we’ve discussed, it doesn’t,” Hemmer said.  

    Hemmer also argued the state’s attorneys’ argument was far more broad than seeking to block the implementation of cash bail and changes to the state’s pretrial procedures.  

    “If plaintiffs are right that provisions like that violate separation of powers principles, suddenly we’re not just talking about the SAFE-T Act,” Hemmer said. “We’re talking about six decades of legislative regulation of pretrial practices that are all called into question by plaintiff’s expansive reading of judicial power and their narrow reading of legislative power in this area.”  

    Rowe was immediately peppered with questions from Chief Justice Mary Jane Theis, a Democrat, on if state’s attorneys and sheriffs even had legal standing to challenge the law in court.  

    “How does this statute adversely impact the rights of elected state’s attorneys and sheriffs?” Theis asked.  

    “Was the language prescribed [in] the [oath] that we support the Constitution of the United States and the Constitution of the State of Illinois? Isn’t that the same oath that every lawyer, every person who comes to be admitted into the bar of Illinois under the attorney’s act takes the same oath? So are you saying everyone, every lawyer in the state of Illinois, has standing to challenge a statute they just don’t like?” she further asked.  

    Rowe contended the law directly regulates state’s attorneys, giving them standing to sue over the law.  

    “We would be asked to enforce a rule that plaintiffs believe is unconstitutional,” Rowe said.  

    The state’s attorneys also argued the SAFE-T Act’s changes to pretrial procedures violate separation of powers between the legislative and judicial branches because the law restricts judges from using monetary bail and sets additional regulations on judges’ power to detain someone before trial.  

    Will County special assistant state’s attorney Alan Spellberg argued the law “prevents the court from exercising its historic and well-settled discretion.” 

    However, Republican Justice Lisa Holder White challenged Hemmer on the SAFE-T Act’s limitations on what kinds of bail a judge can impose, specifically monetary bail.  

    “A court cannot say ‘you need to post 10 percent of this amount in order to be released,’ under the SAFE-T Act, White said.  

    Hemmer responded by saying prior rulings by the Supreme Court have found courts’ responsibility before trials is not specifically to set a monetary bail condition, but rather to “detain” a defendant before trail, largely to ensure the defendant returns to court.   

    Related: Deciphering the Pretrial Fairness Act: What the law does and where changes could be made   

    Under the law, people charged with misdemeanors and some felonies can be released with a ticket for a court appearance without having to go to jail and post bond. State’s attorneys can petition the court to hold people charged with forcible felonies in jail while they await trial. If the judge rules a person should be held, they will not be able to bond their way out of jail.    

    The law does not list non-detainable or detainable offenses, but rather lists forcible felonies, including domestic violence, stalking and any crime with a firearm. Prosecutors will have to convince a judge a person is a threat to society or a flight risk if they are released from prison before trial, most often following forcible felony charges. People charged with nonviolent felonies such as retail theft or drug possession will be more likely to be released under the changes.  

    Some justices were not convinced the SAFE-T Act was a greater infringement on the separation of powers between the courts and the legislature than other types of criminal justice reform routinely passed by lawmakers.  

    “How is this any different… then automatic add-ons for weapons or 15-year enhancements or minimum mandatories or automatic sentences that have been imposed by the General Assembly for which [judges] have no discretion?” Justice Mary Kay O’Brien, a Democrat, asked the state’s attorneys.  

    Hemmer, arguing for the state, agreed the legislature was within the boundaries of the constitution to change pretrial proceedings.  

    “The General Assembly is entitled to amend its statutes,” Hemmer said. “The General Assembly didn’t purport to amend the constitution because it didn’t need to. The constitution does not constrain the General Assembly in the way that the plaintiffs suggest.”  

    “It’s undeniable that the pretrial release provisions… made to the pretrial release by the SAFE-T Act were motivated by public policy concerns,” he added.  

    A ruling on the case could still be months away as the justices usually take several months to reach a conclusion. Proponents of the SAFE-T Act have expressed confidence the 5-2 Democrat-controlled court will vote to uphold ending cash bail.  

    House Speaker Chris Welch (D-Hillside), Attorney General Kwame Raoul, and Will County State’s Attorney James Glasgow attended Tuesday’s oral arguments.  

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