Despite Democrats’ changes to the SAFE-T Act, Illinois’ sprawling criminal justice reform law, a Kankakee County judge could soon take the next steps in deciding the law’s fate.
Next week, Kankakee County Chief Judge Thomas Cunnington is scheduled to hold a hearing and potentially issue a decision on constitutional challenges brought against the SAFE-T Act by a group of more than 60 Illinois county prosecutors.
And the judge’s decision could turn on a key legal and constitutional question: When the Illinois state constitution established a right to bail, was that language primarily intended to protect criminal defendants or to protect others living in the state and in the community threatened by the accused’s alleged criminal conduct?
The decision could be the first step on a quick trip for the lawsuits to the Illinois Supreme Court, which may render the ultimate decision on the fate of the law.
This fall, 62 state’s attorneys from Illinois’ 102 counties, including a mix of Republicans and Democrats, have filed lawsuits asking the courts to strike down the SAFE-T Act as unconstitutional.
The law, a mammoth 764-page piece of legislation, was passed into law in January 2021, with the strong support of Illinois Democrats.
The law touched on virtually every aspect of law enforcement and criminal law in Illinois. Perhaps most notably, however, the law abolished cash bail in Illinois, making Illinois the first U.S. state to do so. Under the law, cash bail is scheduled to be outlawed beginning Jan. 1.
In its place, the law would create a system under which criminal defendants are presumed to be allowed to go free while they await trial, unless they are charged with a crime from a select list, or if a judge determines their continued freedom presents a clear threat to a specific person.
The law also generally forbids judges in Illinois from holding a criminal defendant for more than 90 days, as they await trial.
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.
Opponents, however, say the elimination of bail 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.
'Clarifying' the SAFE-T Act
This week, during their so-called veto session, the Democratic supermajority in the state legislature passed a measure making changes to the SAFE-T Act.
Supporters said the more than 300 pages of amendments to the original SAFE-T Act merely clarify the law’s original intent.
The amendments rewrote portions of the law to now allow judges to order someone charged with a violent crime to be held in jail, pending trial, if the judge determines the accused represents a threat to the community. Under the current version of the law, prosecutors and judges were limited only to determining if an accused violent offender represented a specific threat to a specific, identifiable other person.
The amended version of the SAFE-T Act also broadened the list of “forcible felonies” for which criminal defendants could be held in jail, without the possibility of pre-trial release.
Supporters also said the changes make clear, for instance, that police still have the power to arrest criminal trespassers and explicitly giving judges the power to issue arrest warrants for people who “willfully” refuse to show up in court.
Under the current version of the law, no one could be arrested for failure to appear in court unless sheriff’s deputies could first personally serve them with a so-called “order to show cause” issued by a judge, warning them of the risk of arrest for refusing to come to court to answer criminal charges against them.
Critics of the law had said the current version of the bill was not clear on whether police had the power to arrest people for simply trespassing on private property.
Even under the amended language, police must first issue a citation to trespassers, and wait to see if the trespassers leave before arresting, unless they make a determination that a trespasser represents a threat to property owners or others on the premises.
Who is bail for?
The amendments, however, did not address the most controversial aspect of the law: The abolition of cash bail.
At least 100 of the 102 state’s attorneys in Illinois have spoken out against the elimination of cash bail. They say the SAFE-T Act, while also endangering the public, will make it all but impossible to ensure many criminal defendants ever actually come to court to stand trial.
To stop the law from taking effect, state’s attorneys sued. The lawsuits were consolidated by the Illinois Supreme Court into a single action, to be heard in Kankakee County Circuit Court, where Kankakee County State’s Attorney Jim Rowe was the first to file suit.
In their lawsuits, state’s attorneys assert the law fails on several constitutional fronts.
They assert Democrats violated the state constitution in the way the SAFE-T Act was approved, and in the number of different subjects the law addresses. Under the state constitution, legislation can only cover a single subject, but the state’s attorneys say it stretches far beyond the subject of “criminal justice,” as suggested by attorneys representing the state’s top Democratic elected officials, including Gov. JB Pritzker, State House Speaker Emanuel “Chris” Welch and State Senate President Don Harmon.
But perhaps more significantly, the state’s attorneys argue the law has unconstitutionally rewritten the state constitution. Specifically, they assert the SAFE-T Act ignores language in the state constitution guaranteeing people a right to be considered for bail when they are accused of a crime, and guaranteeing that the safety and wellbeing of crime victims be considered when determining whether to jail criminal defendants before they stand trial.
Both sides have each submitted their briefs in support of their arguments. The judge is expected to rule using a process called summary judgment, which dispenses of the need for a trial.
Judge Cunnington is scheduled to hold a hearing on Dec. 6, when the judge will hear oral arguments and ask questions of both sides.
A ruling could soon follow.
In their most recent filings, the state’s attorneys and lawyers for the governor and legislative leaders sparred over the nature and intent of the constitutional right to bail.
The SAFE-T Act’s defenders say the law doesn’t run afoul of the state’s constitutional requirements.
They say the right to bail was meant as a protection for criminal defendants, to prevent people from being wrongly jailed while they await trial.
The elected officials argue the right to bail should not be read as a right for defendants to ask the court to allow them to essentially pay their way out of jail, pending trial.
“This bail provision (in the state constitution) confers a right on criminal defendants to access pretrial release (subject to certain exceptions) without requiring courts to impose monetary bail,” the elected officials wrote. “Plaintiffs’ interpretation would transform an important constitutional protection for criminal defendants into its exact opposite: a bail mandate that forbids release without payment.”
In response, however, the state’s attorneys said it is the SAFE-T Act’s defenders that are misinterpreting the state constitution.
They assert the purpose of the right to bail under the state constitution is “much broader” than simply a right afforded to people charged with crimes.
Bail exists, as it has for centuries, to balance a defendant’s rights with the requirements of the criminal justice system, assuring the defendant’s presence at trial, and the protection of the public,” the state’s attorneys wrote.
But the SAFE-T Act, they said, would remove from judges the authority to even consider the opportunity to grant bail to people charged with a range of crimes, even if judges and prosecutors determine those people pose no threat to the community and won’t attempt to flee before trial.
“… It is not that Plaintiffs (state’s attorneys) seek to require monetary bail in every case; instead, it is Defendants (elected officials) who seek to eradicate monetary bail as a judicial consideration in every Illinois case,” the state’s attorneys wrote.
Both sides asserted the other’s interpretation of the law, the state constitution, and the history of bail in Illinois was flawed and incorrect.
The state’s attorneys, however, noted the state constitution has been amended twice “to expand the categories of offenders who may be denied bail based on a judge’s determination of dangerousness.”
By eliminating the possibility of bail for a list of offenses that may differ from those in the state constitution, lawmakers have “improperly attempted to amend the Constitution” through legislation, rather than using the amendment process spelled out in the state constitution, the state’s attorneys argued.
The state's attorneys are represented in the case by a group of six state's attorney plaintiffs, including Rowe; Will County State's Attorney James Glasgow; McHenry County State's Attorney Patrick Kenneally; Vermilion County State's Attorney Jacqueline Lacy; Kendall County State's Attorney Eric Weis; and Sangamon County State's Attorney Dan Wright.
The state defendants are being represented in the case by attorneys from Raoul’s office, as well as Democratic attorneys Michael J. Kasper, Adam Vaught 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. Vaught also has a long history of working with Madigan and his political organization.
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.