Sweeping reforms to Illinois’ criminal justice system, including provisions to abolish cash bail, trampled the state’s constitution in multiple ways, and ultimately disenfranchised the people of Illinois by denying them their rights to vote on changes to the state constitution, state’s attorneys told a Kankakee County judge.
Lawyers for the state, however, argued the law doesn’t violate the state constitution. But even if those arguments could be made, county prosecutors tasked by the constitution with prosecuting criminal defendants cannot be the plaintiffs arguing against changes that would make it easier for criminal defendants to avoid going to jail before they stand trial.
The lawyers for the state asserted the county prosecutors’ arguments against the so-called SAFE-T Act are mere policy disagreements dressed up as a constitutional challenge to a law passed by the state legislature, in a bid to invalidate portions of the reforms that may make their job of prosecuting criminal defendants more difficult.
Illinois Attorney General Kwame Raoul
On Tuesday, Dec. 20, the two sides squared off in court in Kankakee, before Kankakee County Circuit Judge Thomas Cunnington.
The judge declined to rule at the hearing. Cunnington said he planned to issue a written ruling by Dec. 28.
At stake in the case, potentially, is the fate of the SAFE-T Act entirely, or at least the provisions in the law that would make Illinois the first state in the U.S. to abolish monetary bail, should the law take effect on Jan. 1, as currently scheduled.
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 SAFE-T Act.
This fall, led first by Kankakee County State’s Attorney Jim Rowe, a Republican, and Will County State’s Attorney James Glasgow, a Democrat, 64 of Illinois’ 102 elected county state’s attorneys signed their names to lawsuits arguing the SAFE-T Act is unconstitutional and should be struck down by the courts.
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 or that they are highly likely to try to flee to avoid trial.
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.
The state’s attorneys lawsuits named as defendants Illinois Gov. JB Pritzker, Attorney General Kwame Raoul, and the state’s two most powerful lawmakers, House Speaker Emanuel “Chris” Welch and Senate President Don Harmon. All are Democrats, and all have strongly supported the SAFE-T Act, and particularly the abolition of cash bail.
While 64 state’s attorneys filed suit, 100 Illinois state’s attorneys have spoken out against the abolition of cash bail, saying they believe it will make all but impossible for the courts to ensure many criminal defendants – particularly, those who have committed particularly heinous crimes or who have shown particular disregard for the law – return to court to stand trial.
The lawsuits were consolidated by the Illinois Supreme Court into a single action, to be heard in Kankakee County court, where State’s Attorney Rowe was the first to file suit.
The state’s attorneys and lawyers for the Illinois state elected officials all filed briefs in November, each asking Judge Cunnington to grant them “summary judgment,” or a quick decision based solely on legal arguments, in place of a trial.
The hearing on Dec. 20 marked the only in-person hearing scheduled in the case.
Whose 'hand on the gavel?'
Rowe, who presented on behalf of the state’s attorneys, hammered away at many of the points already extensively discussed in the parties’ written arguments.
He said the state’s attorneys shared a desire with the state defendants for the “noble” goal of criminal justice reform in Illinois to address perceived systemic shortcomings.
However, Rowe said the SAFE-T Act took those “most noble of goals” and instead produced “the most unconstitutional of outcomes.”
The state’s attorneys argued, as before, that the Illinois General Assembly approved the law unconstitutionally, asserting the law violates state constitutional provisions requiring laws to address only a single subject, and that lawmakers rushed the mammoth legislation through “under the cover of darkness,” and violated the constitutional requirement that all laws receive at least three readings before they are approved.
On the single subject question, the state’s attorneys assert the SAFE-T Act addresses a myriad of different topics, including the way in which the state draws legislative districts; powers granted to the Illinois Attorney General to pursue civil actions against police officers accused of misconduct; residency requirements for police officers; and rules governing when insurance companies can terminate people’s auto insurance policies, among many others.
Darren Kinkead, of the Illinois Attorney General's office, argued the law covers the single subject of the “criminal justice system," because every topic within the law relates back to the criminal justice system.
The state’s attorneys, however, said this kind of rationale - creating a "single subject" under as broad of an umbrella as possible - would render the single subject rule all but “meaningless.”
The state’s attorneys also argued the law unconstitutionally veered into legal ground delegated by the state constitution to the judicial branch.
Rowe asserted the law represents a move by lawmakers in Springfield to “place their hand on the gavel” of judges statewide.
Rowe noted the SAFE-T Act forces all courts to release all criminal defendants if they cannot be brought to trial within 90 days.
He said this would be the case even if a criminal defendant were to stand in open court and tell the judge they intend to kill a witness when they are released.
Lawyers for the state did not counter this assertion during the hearing.
Further, Rowe said the law would allow any judge anywhere in the state the authority to quash another judge’s bench warrant. Should such a measure be upheld, Rowe warned of future legislation to further limit judges' power.
He asserted such moves run afoul of the separation of powers under the state constitution. He pointed to past rulings from the state Supreme Court, striking down laws passed by the General Assembly to limit the dollar amounts juries could award through lawsuits, because those laws wrongly interfered with the power of juries and the courts.
He said the SAFE-T Act represents the same kind of legislative overreach, this time aimed at criminal courts, rather than civil cases.
Who is bail for?
Attorneys for the state have conceded the SAFE-T Act would infringe on the traditional power of the judiciary.
However, they continued to argue the infringement should be allowed as long as the infringement is not “undue.” Rather than usurping the power of the courts, they asserted the law represented an “overlap” of power, in which lawmakers are restoring a balance to the criminal justice system, to bring it 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.
On this point, the two sides clashed over the meaning and purpose of the Illinois constitution’s language guaranteeing a right to bail.
State’s attorneys have argued that language is there for two purposes: To protect the rights of the accused, to generally grant them the right to avoid jail while they await trial, but also to give the courts power to protect the community from violent offenders and to ensure criminal defendants return to stand trial.
Kinkead, however, argued the right to bail is included in the state constitution solely for criminal defendants. He asserted it is an individual right, akin to the freedom of speech or the right against warrantless searches and seizures of property.
Kinkead argued this should block Rowe and his fellow state’s attorneys from continuing with their challenge to the SAFE-T Act, because, as prosecutors, they have no legal standing from which to challenge the law. Such a challenge to the elimination of cash bail can only come from someone who may be able to claim their right to bail was violated – meaning, criminal defendants.
He said the allegedly misplaced challenge in this case is "particularly perverse" since the challenge comes from prosecutors who are "on the opposite side" from the criminal defendants the state seeks to protect in the law.
Kinkead said the lawsuits are largely rooted in the prosecutors' disagreement with how the new policy under the SAFE-T Act will "impact how they (prosecutors) do their jobs."
Rowe, however, said this charge was “absurd," since the law affects everyone in the state.
He said the provision requiring criminal defendants to be released after 90 days is "crucial" in the challenge, noting again that it ties the hands of judges and forces them to release even violent offenders after three months, unless they somehow can stand trial first.
"If this law is constitutional, then everyone is getting out (of jail)," Rowe said.
The state’s attorneys said the law represents an attempt by Illinois’ Democratic supermajority to rewrite the state constitution without following the proper amendment procedure.
In so doing, Rowe said the Democrats sidestepped the people, who would normally be guaranteed the right to vote on constitutional amendments in a referendum.
He noted Democrats have advanced such amendments to the people in each of the last two general elections to address tax and labor laws in Illinois.
Yet in the SAFE-T Act, Rowe and the state’s attorneys said, state lawmakers and Pritzker have decided to ignore state constitutional provisions appearing to not only guarantee criminal defendants the right to seek money bail, but also to guarantee crime victims the right to a place in the discussion over those very decisions.
In court Tuesday, Rowe said those lawmakers and Pritzker “ignored” and “disenfranchised” the people of Illinois, denying them their right to vote on potential changes to their rights under the state constitution.
During the arguments, Cunnington gave no indication on how he might rule. He asked few questions of the lawyers, limiting his queries mainly to concerns over how prior Illinois Supreme Court decisions could limit his ability to rule in the case.