The union that represents Chicago Police officers has rolled into the legal fight over the future of cash bail, saying they wish to remind the state’s highest court of the negative real-world consequences of stripping judges of the power to use cash bail to keep accused criminals in jail while they await trial.
On Feb. 28, the Chicago Fraternal Order of Police union lodge filed an amicus, or “friend of the court” brief, with the Illinois Supreme Court, in support of the lawsuits lodged by Illinois state’s attorneys arguing Illinois Democratic lawmakers and Gov. JB Pritzker violated the state constitution by enacting the so-called SAFE-T Act, that would make Illinois the first U.S. state to abolish cash bail entirely.
“Setting aside the substantial constitutional flaws of the SAFE-T Act, … the Act sets forth a recipe for increases in crime, recidivism, dysfunction in the criminal prosecution system, and danger to police officers and the communities they serve,” the Chicago FOP wrote in their brief.
Chicago Fraternal Order of Police Lodge 7 President John Catanzara
The police union pointed to recent polling data, indicating large majorities of Chicago residents, and particularly Black Chicagoans, “do not feel safe for fear of crime.”
“We submit that a community facing these levels of daily fear cannot survive,” the police union wrote.
While supporters of eliminating cash bail assert there historically has been too much emphasis on policing to combat crime, the police union said other community goals, including increasing economic development and job opportunities in Chicago, are “severely hampered by the reality and perception of crime in Chicago.”
And eliminating cash bail will only make the situation worse, the police union warned.
“Removing the discretion from our judiciary to determine appropriate conditions, including monetary bail, upon the pretrial release of those accused of crime will only exacerbate the level of fear the residents of our community face as well as the dangers our members (police officers) must confront,” the FOP wrote.
The police union’s brief arrived two weeks before the Illinois Supreme Court is scheduled to hear arguments over the constitutionality of the SAFE-T Act’s provisions abolishing cash bail and rewriting traditional rules of pretrial detention and criminal justice in Illinois.
In December, a group of 64 state’s attorneys, led by Kankakee County State’s Attorney Jim Rowe and Will County State’s Attorney James Glasgow, won an order from Kankakee County Judge Thomas Cunnington declaring the Democratic supermajority in Springfield violated the Illinois state constitution in passing reforms forbidding courts from deciding whether criminal defendants should be required to post bond to be released from custody while they await trial.
In their challenge to the law, the state’s attorneys asserted cash bail is established under the Illinois state constitution, and cannot be simply wiped away by lawmakers without properly amending the state constitution by winning approval from a supermajority of voters.
State officials, led by Pritzker and Illinois Attorney General Kwame Raoul, appealed Cunnington’s decision directly to the Illinois Supreme Court.
In a brief filed with the Illinois Supreme Court on Feb. 27, Raoul, Pritzker and the state’s Democratic legislative leaders again asserted the state’s attorneys have misunderstood the state constitution.
While the state’s attorneys argue cash bail can be inferred in state constitutional language that declares judges have the power to order criminal defendants to post “sufficient sureties,” Raoul and his co-counsel argue the SAFE-T Act isn’t eliminating the right to bail. They are merely redefining it to strip judges of the power to require defendants to pay money.
Further, they argue the state’s attorneys have no power under the law to challenge the elimination of cash bail at all, because the right to bail is granted only to criminal defendants.
The state officials argue the right to bail expressed in the state constitution should not be read as a right for defendants to ask the court to allow them to essentially pay their way out of jail. Rather, they argue the constitution generally grants criminal defendants the right to be free from jail pending trial, unless prosecutors can prove to the judge that the defendant must be locked up under a limited number of exceptions.
Under this understanding of the so-called bail clause, the state officials argue state lawmakers are free to abolish cash bail, without violating the constitution, by simply redefining and limiting what “sufficient sureties” judges can accept.
In court filings, prosecutors and police officers said the state’s view on bail is too narrow.
The state’s attorneys argue bail exists to balance a defendant’s rights with the court’s duties of ensuring criminal defendants return to stand trial and the public is protected.
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.
The elimination of cash bail has been on hold statewide since Dec. 31, by order of the state Supreme Court, while the lawsuits play out.
That order was needed to prevent confusion and potential chaos across Illinois, after Democratic officials in Cook County and elsewhere indicated the state would move ahead with eliminating cash bail in many of the state’s counties, even after Cunnington ruled those provisions of the SAFE-T Act unconstitutional.
In their new filing, the police union warns of more potential dangers ahead for the entire state, should the Illinois Supreme Court side with Pritzker and his Democratic allies.
To illustrate their warnings, the Chicago FOP pointed to recent experiences in Cook County, where judges and prosecutors have worked under a court order since 2017 to reduce the use of cash bail to hold defendants before trial, even those the FOP said have been accused of “heinous or violent crimes.”
The police union pointed to a 2020 analysis conducted by the University of Utah of Cook County’s bail reform efforts. According the FOP filing, the county’s new pretrial release policies were followed by a 45% increase in crime committed by those released without bail. Violent crime increased by 33%, the report indicated.
They further pointed to crime statistics demonstrating sharp increases in many different kinds of violent crime in Chicago and Cook County since 2017, including murder, carjacking and assaults with guns.
“This data shows the distressing result of the increasingly dangerous trend of Illinois lawmakers to put criminals before law-abiding citizens and those that protect them,” the police union wrote.
“The implementation of the SAFE-T Act will undoubtedly result in more pretrial defendants being released as has occurred in Cook County.”
The police union argued, like prosecutors, that the SAFE-T Act unconstitutionally strips courts of the powers they need to ensure criminal defendants stand trial and that they are prevented from committing more crimes while they await trial.
At the same time, the brief also argues the SAFE-T Act has unconstitutionally trespassed on the ability of police officers to collectively bargain.
They note the law amends state labor laws by refusing to allow police officers employed in cities with more than 100,000 people to negotiate over residency requirements.
By including this provision, the SAFE-T Act violated the state constitution’s so-called “single subject rule,” which requires lawmakers to limit legislation to only one subject.
Lawmakers have argued the SAFE-T Act addresses the “single subject” of “criminal justice.” Since police officers operate within the criminal justice system, therefore the labor law changes don’t violate the single subject rule, the state has said.
The police union, however, said that is too large an exception.
“If any law that references peace officers is considered applicable to the criminal justice system, then the single subject provision of the Illinois constitution is meaningless, it is illusory in practice,” the FOP wrote.
The Chicago FOP is represented in the matter by attorney Timothy M. Grace, of Grace & Thompson, of Chicago.
The brief was co-signed by four Chicago city aldermen, including Nicholas Sposato (38th Ward), Anthony Napolitano (41st Ward), Brian Hopkins (2nd Ward) and Matthew O’Shea (19th Ward), as well as the leaders and counsel for other Illinois police unions.
Democrats control a supermajority on the court, as well, holding a 5-2 edge, thanks to the election of two new Democratic justices last November.
The court is scheduled to hear oral arguments in the state's attorneys lawsuit on March 14.