The SAFE-T Act, Illinois’ sweeping criminal justice reform law which eliminates cash bail in the state, would unconstitutionally trample the authority of judges to decide whether to hold violent criminals before they stand trial, and would hamstring courts’ ability to ensure those charged with crimes actually show up for hearings and other court dates, a group of 62 Illinois county prosecutors said in a recent court filing.
Lawyers for the Democrats who lead Illinois conceded the SAFE-T Act’s reforms do limit the power of courts, but said the changes are not “undue” and are needed to bring the state’s criminal justice system into line with a constitutional understanding that prioritizes the rights of the accused over the court’s ability to keep those charged with crimes in jail.
Early next month, a judge in Kankakee County is expected to render a decision in a court fight that could determine whether Illinois formally scraps its longstanding system of cash bail and other rules concerning pre-trial detention of accused criminal defendants.
Illinois Attorney General Kwame Raoul
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The decision would be the first step in what could be a quick trip to the Illinois Supreme Court over the fate of the controversial law, commonly known as the SAFE-T Act.
That is the name assigned to the mammoth, 764-page legislation quickly passed into law in January 2021 by Illinois’ Democrat-dominated General Assembly.
The law was authored and strongly supported by left-wing progressive politicians in Springfield, led by State Sen. Elgie Sims, D-Chicago, and other members of the General Assembly’s Black Caucus.
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 Illinois the first state in the U.S. to do so. Under the law, cash bail would be outlawed beginning Jan. 1.
That provision had long been a progressive dream, but was made possible by the political tailwinds generated by the massive public outcry following the death of George Floyd in 2020.
Supporters of the law 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.
The elimination of cash bail, in particular, has generated a storm of opposition, as critics say the provision will empty jails and allow criminals, even violent criminals, to roam free and continue to commit crime and hurt people as they await trial on other charges.
Prosecutors lawsuits
By some estimates, 100 of the state’s 102 state’s attorneys – county officials tasked by the state constitution with prosecuting those charged with crimes – have spoken out against the SAFE-T Act.
In recent weeks, 62 of those prosecutors, including a mix of Democrats and Republicans, have signed their names to lawsuits, asking courts to strike down the SAFE-T Act as unconstitutional. The first such lawsuits were filed by Kankakee County State’s Attorney James Rowe and Will County State’s Attorney James Glasgow. In the Chicago area, other state’s attorneys challenging the SAFE-T Act in court included McHenry County State’s Attorney Patrick Kenneally and Kendall County State’s Attorney Eric Weis.
Kane County State’s Attorney Jamie Mosser and DuPage County State’s Attorney Bob Berlin have spoken out against the law, but have not filed suit.
The law is supported by progressive Democrats Cook County State’s Attorney Kim Foxx and Lake County State’s Attorney Eric Rinehart.
The lawsuits name as defendants Illinois Attorney General Kwame Raoul, Gov. JB Pritzker, Illinois House Speaker Emanuel “Chris” Welch and State Sen. President Don Harmon.
The state defendants are being represented in the case by attorneys from Raoul’s office, as well as Democratic attorneys Michael J. Kasper and Luke Casson, each of Chicago.
Kasper has long served as a top Democratic lawyer, with longstanding ties to indicted former House Speaker Michael J. Madigan.
Casson, of the firm of Andreou & Casson, is an Oak Park Democrat, with political ties to Harmon. Casson led a political committee that spearheaded the effort to elect two new Democrats to the Illinois Supreme Court this fall.
On the state’s attorneys’ side, the prosecutors selected Rowe and Glasgow, with the state’s attorneys from McHenry, Kendall, Sangamon and Vermilion counties, to lead their case.
The prosecutors and the state defendants agreed to avoid a trial, and instead allow the judge to rule on the cases through a process known as summary judgment.
The judge directed the parties to submit written briefs. He would then hold a hearing on Dec. 6 to hear oral arguments, and render a decision as soon as Dec. 13.
The two sides each filed their initial briefs supporting their arguments on Nov. 9.
'Rewritten the Consitution'
They said the law violates several provisions of the Illinois state constitution, including sections in the state constitution that establishes a right to bail for the criminally accused, and which require courts to take into consideration the rights and safety of crime victims and potential witnesses when deciding who should be jailed, pending trial.
The prosecutors further assert the SAFE-T Act is an unconstitutional attempt to change the state constitution, without following the correct process of amending the state’s supreme legal document.
They specifically pointed to language in the state constitution which states courts can hold in jail anyone accused of a crime who is believed to represent a threat to “any person.” The prosecutors said the SAFE-T Act, however, ignores that phrase, instead declaring judges can’t hold someone in jail before their trial unless prosecutors can prove they are a flight risk, or pose a “specific, imminent threat of serious physical harm to an identifiable person.”
Further, they noted the SAFE-T Act clashes with prior amendments to the state constitution, approved in 1982 and 1986 to strengthen the ability of judges to hold accused violent criminals in jail.
“By requiring the release of certain defendants even where the Illinois Constitution expressly provides otherwise, the General Assembly has essentially rewritten this section of the Constitution,” the state’s attorneys wrote.
Prosecutors further assert the SAFE-T Act tramples on the separation of powers, as the legislature and the governor have teamed together to limit the power of the courts and the judicial branch to administer its own affairs.
They note prior legal doctrine and rulings have long held that the setting of bail, and the decision of how to ensure people charged with crimes are forced to actually stand trial, has been left to the courts.
And they pointed to a provision in the SAFE-T Act which requires courts to release any criminal defendant from jail, unless they can be brought to trial within 90 days.
They said this tramples on the courts’ constitutional authority, “within the constitutional and statutory limits of a defendant’s speedy trial rights, to administer its court calendar.”
“The setting of an ‘amount of bail’ and the accompanying discretion accorded the judge to ensure a defendant’s appearance in court and for the protection of victims and their families has been stripped away in violation of the Illinois Constitution,” the state’s attorneys wrote.
'Turn important protection on its head'
Attorneys for the state defendants, however, said the state’s attorneys have misinterpreted the state constitution and the law.
In their brief in support of their arguments, Kasper, Casson and Raoul argue the SAFE-T Act’s elimination of cash bail may trespass on the power of the courts, but does so in a way that fixes constitutional flaws in the state’s criminal justice system.
The state defendants assert the state’s attorneys’ arguments would “turn the important constitutional protection of pretrial release on its head,” by interpreting the state constitution to forbid the pre-trial release of people from jail “unless the defendant posts monetary bail.”
The state defendants argue the constitution’s bail provisions should be read to require pre-trial release for those accused of crimes, unless prosecutors can prove to a judge there is a compelling need to hold them in jail.
“Despite the long history of the Constitution’s bail provision, and its ubiquity in almost every other state, no court has ever interpreted it as plaintiffs now ask this Court to do - to restrict criminal defendants’ liberty interests by requiring monetary bail and thus limiting the opportunity to secure pretrial release far beyond its pre-SAFE-T Act contours,” Raoul, Kasper and Casson wrote.
While the state constitution requires bail, the state defendants said that doesn’t necessarily mean “monetary bail,” only “sufficient sureties,” which could include “any formal assurance” including a pledge to appear at trial.
Further, the state defendants argued a ruling in favor of the state’s attorneys would force the courts to also strike down much of the pre-trial release laws currently in effect, including laws allowing those accused of crimes to remain free on so-called “personal recognizance.”
The two sides also sparred in their briefs over constitutional questions concerning how the SAFE-T Act was approved.
State’s attorneys argued the law violated the state constitution’s requirements that no law cover more than a “single subject.” Instead, they said, the SAFE-T Act’s sprawling text changes a broad swath of existing laws, and touches on a range of subjects. These begin with the elimination of cash bail, but also include the broadening of the powers of the Attorney General to investigate and sue police officers accused of misconduct and how inmates in state prisons can be counted in the U.S. Census, among many other topics.
In their brief, the state defendants said all of the changes in the SAFE-T Act, however, are all tied to one subject: reforming the state’s criminal justice system.
State’s attorneys, however, said that subject is overbroad, and wouldn’t pass muster under prior court decisions on similar questions concerning the “single subject rule.”
“Even within the general category of ‘policing,’ the subjects covered by the (SAFE-T Act) range from collective bargaining over residency requirements in specific Illinois cities with populations over 100,000, to personnel and indemnification matters concerning certain police oversight boards, to military surplus equipment and access to information about police officers,” the state’s attorneys wrote. “This unconstrained Act, if allowed to stand, would render meaningless the single-subject clause of the Illinois Constitution.”
For their part, the state defendants further argued the state’s attorneys have no ability under the law to bring the lawsuit. They say only someone who has been charged with a crime and held in jail with no ability to pay bail or post bond to secure release pre-trial would be able to challenge the constitutionality of the elimination of cash bail.
The state’s attorneys have not yet responded to that assertion.
The parties have been directed by Judge Cunnington to file further briefs and responses by Nov. 23.