Sheriffs and prosecutors from 64 of the state's 102 counties, want the Illinois Supreme Court to rule the criminal justice reform SAFE-T Act should have gone before voters in a referendum, and unconstitutionally reduces the power of judges to protect the public from crime.
"The legislation presents numerous constitutional infirmities" and is an "unbridled overreach," the state's attorneys claimed in a new brief.
Arguments against the SAFE-T Act were filed Feb. 17 with the state high court by the state's attorneys, led in the action by James Rowe, of Kankakee County; James Glasgow, Will County; Jacqueline Lacy, Vermilion County; Patrick Kenneally, McHenry County; Eric Weis, Kendall County; and Dan Wright, Sangamon County. These prosecutors are representing the 64 counties.
Attorney General Kwame Raoul
| Courtesy photo
Rowe and Glasgow are Democrats and Lacy, Kenneally, Weis and Wright are Republicans.
The SAFE-T Act was signed into law in February 2021. Among other provisions, the Act notably eliminated cash bail for defendants, unless they are facing a limited range of more serious charges or if a judge decides the defendant is a danger to him or herself or to others.
Opponents of the law claim the bail elimination provisions will let criminals stay on the streets. But in the case before the Supreme Court, they argue the elimination of cash bail violates the Illinois state constitution. In September 2022 in Kankakee County Circuit Court, State's Attorneys Rowe and Glasgow, as well as Kankakee County Sheriff Michael Downey, filed suit to have the Act declared unconstitutional.
Kankakee County Chief Judge Thomas Cunnington declared it so in December.
"Had the Legislature wanted to change the provisions in the Constitution regarding eliminating monetary bail as a surety, they should have submitted the question on the ballot to the electorate at a general election," Cunnington determined.
Cunnington's ruling was limited only to the counties that had filed suit.
Illinois Attorney General Kwame Raoul then appealed to the Illinois Supreme Court.
The state's attorneys, in countering Raoul, are contending the Act was stillborn, because legislators went about it the wrong way.
"The failure to seek a referendum amending the constitution and to seek input from the voters to convert Illinois from a traditional bail state to a risk assessment-based system doomed its attempt," the state's attorneys said.
The state's attorneys added: "In its haste to fundamentally change Illinois’ pretrial detention system, the General Assembly bypassed the critical step of allowing the voters to weigh in on these significant changes to the bail provision of the Illinois Constitution through a legislatively referred constitutional amendment."
The state's attorneys pointed out that changes to the bail provisions in the state constitution were made in 1982, 1986 and 2014, but only after the proposed changes were presented to voters through referendums. The changes restricted certain defendants' eligibility for bail. The prosecutors pointed to these amendments as proof the cash bail system was enshrined in the state constitution, and cannot be removed simply a vote of the Illinois General Assembly.
Further, the prosecutors said the SAFE-T Act flies in the face of the Crime Victims' Rights provision of the constitution, which requires judges to consider the safety of victims and their families when setting bail.
In this connection, the state's attorneys argued, "The General Assembly has unduly encroached upon a court’s inherent powers by divesting the judiciary of its discretion to consider all the available tools provided under the constitution to balance a defendant’s liberty interest with the societal interests of ensuring a defendant’s appearance in court and protecting the public."
In usurping judicial powers, the SAFE-T Act crosses the line of the separation between the legislative and judicial branches, according to the state's attorneys.
The Illinois Attorney General's office has argued the state is not eliminating the right to bail, but only taking away the ability of judges to order criminal defendants to pay money to get out of jail while they await trial. They have further argued the right to bail in the state constitution is a right reserved exclusively for people charged with a crime, and has nothing to do with the public's right to be kept safe from criminals.
Further, they have argued the state's attorneys lack the ability to challenge the law at all. Instead, they said, that challenge can only come from someone who can claim they may have been wrongly held without the ability to be freed by paying bail.
The SAFE-T Act's cash bail elimination provisions had been scheduled to take effect on Jan. 1. However, those provisions were placed on hold by order of the Illinois Supreme Court to avoid potential chaos statewide after the state's Democratic leadership refused to voluntarily delay enforcement of that law in the portions of the state not covered by Cunnington's ruling, until after the court challenges to the law were decided.
The state of Illinois is represented by Raoul, Illinois Solicitor General Jane E. Notz and Deputy Solicitor General Alex Hemmer.
The Illinois Network for Pretrial Justice, which is composed of 426 organizations and individuals, have filed friend-of-the-court arguments in favor of the SAFE-T Act. The Network's members include academics, elected officials, lawyers, criminal justice reform supporters, clergy, unions, mental health advocates and others.
Jonathan Bilyk contributed to this report.