Will County’s chief prosecutor has sued Gov. JB Pritzker, the state’s Attorney General Kwame Raoul and Illinois’ two top Democratic lawmakers, accusing them of violating the state constitution when they passed the sweeping criminal justice reform measures that are roiling the state and dominating discussions in the race for Illinois governor.
On Sept. 16, Will County State’s Attorney James Glasgow filed suit in Will County Circuit Court against the state’s top elected officials, asking a court to declare the so-called SAFE-T Act unconstitutional and to block the law’s abolition of cash bail from taking effect January 1.
“It is my sworn duty as Will County’s State’s Attorney to protect the people of Will County and the State of Illinois. To put it in plain and simple terms, this is not about politics; it is about public safety,” Glasgow said in a press release announcing the lawsuit.
“Sadly, I have received veiled threats over my opposition to this legislation, but I must put the safety of my constituents first. On this issue, I’ll grab a line from Tom Petty – ‘You can stand me up at the gates of Hell, and I won’t back down.’
“The passage of this enormous piece of legislation – a bill that grew from 7 pages to 764 pages in a couple days, and was presented in the wee hours of the morning without an opportunity for lawmakers or stakeholders to read let alone comprehend the full text – violated fundamental constitutional provisions designed to ensure our system of governance functions transparently and serves the people it was established to protect.”
The lawsuit also asks the court to declare an end to a longstanding legal doctrine and practice, under which courts automatically presume laws have been passed constitutionally, simply because the Speaker of the House and the president of the State Senate say so.
The lawsuit takes aim at the so-called SAFE-T Act, a massive package of criminal justice reforms passed by the Democrat-dominated General Assembly in January 2021 and signed into law quickly by Gov. JB Pritzker, also a Democrat.
The law touched on virtually every aspect of law enforcement and criminal justice in Illinois. Principally, however, the law abolished cash bail in Illinois, making the first state in the country to do so.
The law has been amended three times to fix perceived deficiencies in the quickly enacted legislation, and Pritzker and other Democratic leaders have indicated more changes may be coming soon, as well. They have not publicly discussed which parts of the law they may be seeking to change.
However, Pritzker and other prominent Illinois Democrats have steadfastly defended the decision to eliminate cash bail. They say that change in the law is needed to address systemic racial discrimination. They assert the cash bail system has particularly harmed Black and Latino populations, by forcing people of color who come from low income households and have been charged with crimes to remain in jail while they wait months or years for their case to be sent to trial.
Under the SAFE-T Act, judges would be required to evaluate individual cases, to determine if the facts of the case and the charges, as presented by prosecutors, should require defendants to be locked up pending trial.
According to the law, that would be determined by whether the defendant “poses a specific, real and present threat to a person, or has a high likelihood of willful flight.”
Otherwise, under the law, those charged with offenses for which they might receive probation will most likely be allowed to remain free, pending trial and sentencing.
The law also generally forbids police from holding people in jail for most charges that are not included on a specific list of so-called “forcible felonies,” which include first and second degree murder, criminal sexual assault, robbery, arson, burglary, kidnapping and aggravated battery, among others.
The reforms have been widely blasted by county state’s attorneys and law enforcement professionals throughout the state, asserting the law will up end the criminal justice system, releasing dangerous criminals back into the population and making the state less safe.
Even though the law allows judges to order certain offenders charged with heinous crimes to be held in jail pending trial, critics of the SAFE-T Act say its provisions effectively make it significantly more difficult for prosecutors to keep even some of the most brazen violent criminals in jail and away from the community.
Glasgow has been among the reform law’s most vocal critics.
Glasgow’s lawsuit does not attack the reforms directly, as matters of policy.
Multiple constitutional violations?
Rather, the lawsuit asserts its Democratic drafters and supporters improperly passed the legislation in the dead of night, violating multiple provisions within the Illinois state constitution in the process.
Glasgow’s suit asserts the General Assembly cannot abolish cash bail simply by passing a law.
Rather, Glasgow said Democrats who wish to abolish bail can only do so by amending the state constitution, as Glasgow asserts cash bail is required under the current constitution.
He points to language in the state constitution requiring those charged with crimes post bail “by sufficient sureties.” Glasgow said that phrase should be read as a money bond that is large enough to reasonably believe a defendant won’t simply forfeit the money by fleeing before trial.
Glasgow further pints to language in the Crime Victim’s Rights portion of the state constitution, which says: “The right to have the safety of the victim and the victim’s family considered in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.”
He said those passages make money bond “an unambiguous feature of bail" under Illinois' constitution.
By abolishing money bail, Glasgow said the SAFE-T Act essentially ignores the seemingly clear language of the state constitution.
Glasgow’s suit further takes aim at the way the SAFE-T Act was approved.
In his complain, Glasgow says the law’s lead sponsor State Sen. Elgie Sims, D-Chicago, and State Sen. President Don Harmon, D-Oak Park, substantially altered the bill that became the SAFE-T Act in the overnight hours on Jan. 13, 2021.
While the state constitution requires all legislation to receive readings on three different days before it can be approved, Glasgow said Harmon instead simply gave the measure readings on the same day, even as Sims and others added hundreds of pages of new text to the bill, touching on a broad range of criminal justice subjects and other topics.
Further, Glasgow asserted the bill also violated the constitution’s requirement that legislation deal with only a single subject.
In his lawsuit, Glasgow noted supporters of the SAFE-T Act said on the floor of the state House that the bill addressed “seven critical components.”
In addition to abolishing cash bail and imposing a host of new restrictions and requirements on police officers, Glasgow noted the law also specifically grants new powers to the Illinois Attorney General’s office, which is a constitutional office.
Glasgow identified five specific different subjects the SAFE-T Act addressed, including: “policing and criminal law;” elections; “Expanding the Partnership for Deflection and Substance Abuse Disorder Treatment Act to include first responders other than police officers;” “Granting the Attorney General increased power to pursue certain civil actions, some newly created;” and “Expanded whistleblower protection.”
Glasgow, however, said the law likely covers even more subjects than that.
“As whistleblower protection and abolishing cash bail cannot accurately be said to remotely touch the same subject, a single subject violation exists and the (SAFE-T Act) must be struck down,” Glasgow wrote.
Glasgow further contends the law will trespass on the power of the judicial branch, by stripping from judges the ability to order certain offenders detained or to set bond.
Glasgow concedes Democratic officials are going to defend the passage of the SAFE-T Act, at least in part, by pointing to the so-called “Enrolled Bill Doctrine.” Under this doctrine, courts have generally given legislators the benefit of the doubt when presented with claims a law was approved without following the constitutionally required procedures.
Essentially, the courts accept certifications from the Speaker of the House and Senate President that the requirements have been met.
Glasgow asked the court to strike down the Enrolled Bill Doctrine.
He noted the Illinois Supreme Court has previously warned lawmakers that it could choose to “revisit” questions over the doctrine.
“To allow (the doctrine) to stand, would be to allow the General Assembly to skirt the Constitution by certifying, with no standards, penalty, or review, that they have in fact complied with the Constitutional requirements,” Glasgow wrote.
The passage of the SAFE-T Act, Glasgow said, “provides the perfect example of why the courts must revisit the Enrolled Bill doctrine.”
“A simple and likely uncontroversial bill was gutted and replaced by a final product that bore no resemblance to the original material, delivered to Senators at 4:30 in the morning during a lame duck session, and read twice in one day at the Senate, and then simply passed in the House,” Glasgow wrote.
Glasgow has asked the court to declare the SAFE-T Act unconstitutional, and issue an injunction barring its provisions, including the abolition of cash bail, from taking effect, as scheduled.