Despite multiple prior constitutional referendums to change the way courts handle pre-trial release of accused criminals, lawyers for the state’s top Democrats told the state Supreme Court that Illinois lawmakers did not need to follow the same procedures when abolishing cash bail altogether, because lawmakers should be left free to define “bail” in whatever way they believe best fits the state’s policy goals.
On the other side, representatives of a group including more than half of Illinois’ county state’s attorneys told the state high court that the state’s Democratic legislative supermajority and Gov. JB Pritzker trampled the rights of Illinois voters by denying them the chance to weigh in on the controversial topic when including the bail elimination provisions in the sweeping criminal justice reform law known as the SAFE-T Act.
On March 14, the Illinois Supreme Court heard arguments from both sides of the debate concerning the constitutionality of the provisions within the state’s sweeping criminal justice reform law, known as the SAFE-T Act, which would make it illegal for judges to require any defendants to pay money to secure their release from prison while they await trial.
Kankakee County State's Attorney Jim Rowe
| Jim Rowe Kankakee County State's Attorney Facebook page
A hearing was a last stop before a final decision from the high court.
State officials, including Pritzker and the state’s two top legislative leaders, House Speaker Emanuel “Chris” Welch and State Senate President Don Harmon, are seeking to overturn a ruling from a Kankakee County judge, who declared the cash bail abolition provisions unconstitutional.
In that ruling, Kankakee County Chief Judge Thomas Cunnington found the state in abolishing cash bail through the SAFE-T Act had trampled both the powers granted to the judicial branch of state government and had essentially rewritten the state constitution “by legislative fiat.”
The ruling backed the contentions of the state’s attorneys, who had asserted the law and the way it had been approved had violated numerous sections of the state constitution. Notably, however, they contended the lawmakers and governor had essentially written bail out of the state constitution, even though the state’s charter document guarantees a system of bail and assumes the existence of bail amounts that can be set, denied or otherwise “fixed” in a different amendment guaranteeing certain rights to crime victims.
In declaring the law unconstitutional, the judge issued an order keeping the longstanding system of cash bail in place in the counties whose state’s attorneys and sheriffs had filed suit. The Illinois Supreme Court then issued an order to keep cash bail in place statewide pending appeal, after Democratic state and county leaders still moved ahead with abolishing cash bail, as planned in the rest of the state’s counties.
Because Cunnington’s decision declared the law unconstitutional, Illinois Attorney General Kwame Raoul appealed the decision directly to the Illinois Supreme Court.
The seven justices – five Democrats and two Republicans – peppered both sides with questions throughout their presentations.
Justice Lisa Holder White, a Republican, opened questioning from the bench, interrupting Illinois Deputy Solicitor General Alex Hemmer about one minute in. She noted past state legislatures turned to the people to amend the constitution when seeking to expand the list of offenses for which bail could be denied, or otherwise altering the conditions under which bail could be administered by the courts.
Holder White asked if the state’s current Democratic lawmakers should have done so this time, too.
Hemmer said voters had no place in the process. While the state constitution requires the state to maintain a system by which all accused criminals are “bailable” through “sufficient sureties,” Hemmer said that language should be read only to guarantee general rights to criminal defendants to be released before they stand trial
Hemmer further said the inclusion of the phrase “by sufficient sureties” does not mean the state is required to maintain a system of cash bail. He called that a “narrow and artificial” reading of the so-called “bail clause.” Rather, he said “sufficient sureties” should be able to mean whatever lawmakers say the phrase should mean.
“That clause grants criminal defendants a qualified right to seek pretrial release, it makes them bailable,” Hemmer said. “It doesn’t require the state to maintain any particular method of obtaining pretrial release…
“The elimination of monetary bail is thus consistent with the bail clause because it safeguards defendants’ rights to seek pretrial release.”
On the other side, state’s attorneys have argued that interpretation, in turn, is too narrow, as it does not include any recognition of the powers and duties given to courts and prosecutors to ensure criminal defendants can’t continue to commit crimes while they await trial, flee, or otherwise ignore the charges against them altogether.
Several Democratic justices repeatedly interrupted arguments from Kankakee County State’s Attorney Jim Rowe and Special Assistant Will County State’s Attorney Alan Spellberg, sharply questioning numerous aspects of their case, including whether the county prosecutors should have been allowed to sue in the first place.
Chief Justice Mary Jane Theis launched into Rowe seconds into his arguments, demanding to know how state’s attorneys and sheriffs can possibly claim to be harmed by the elimination of cash bail. She cited court precedent saying only those whose rights have been violated or who suffer some personal harm have standing to sue.
Theis questioned whether the court must wait until the state is sued by criminal defendants or crime victims who claim their rights have been violated by the elimination of cash bail.
Rowe said sheriffs and prosecutors stand in a unique position, as they are the only officials allowed to petition judges to deny bail to criminal defendants, and often are the only office allowed to petition the court to act in the interests of crime victims to keep criminal defendants behind bars pending trial.
“The alternative to this forum and pursuing it in this case would be we would have to stand by, we would literally have to sit on our hands and wait for a victim’s constitutional rights … or a defendant’s constitutional rights to be violated,” Rowe said. “I go to work every day to prevent that sort of injury.”
Rowe contended state’s attorneys “absolutely” had standing to challenge the law on behalf of the public whose safety he said it was their duty to help protect. He said state’s attorneys also had an obligation to challenge a law they believed was unconstitutional, rather than simply enforcing it without question.
Theis, however, questioned whether allowing the state's attorneys to sue in this case would all but open the door to any lawyer in the state to also sue to challenge state laws they don't like, as all lawyers take essentially the same oath as state's attorneys and judges, to "support" the Illinois state constitution.
Spellberg further argued the abolition of cash bail also trespasses on the constitutional authority of courts to ensure those charged with crimes stand trial.
Hemmer argued the abolition of cash bail places no more burden on the courts than laws that mandate certain sentences for certain crimes or set conditions judges must consider when granting or denying bail.
Again adopting the state officials’ framing, Theis strenuously questioned Spellberg’s argument, wondering where the difference may be between the legislature taking away judges’ power to set bail and judges’ discretion in setting sentences.
Spellberg asserted the abolition of cash bail crosses a constitutional line by “mandating an outcome.”
Even for defendants who may qualify to still be held without bail pending trial, Spellberg said the law further sets a deadline to bring that defendant to trial within 90 days, or they must be released, unless prosecutors can make a compelling case for why the defendant must still be held.
He said the removal of cash bail – the threat of economic loss to defendants or others who posted bond on their behalf – stands as the only real kind of guarantee that courts can enforce to make sure those charged with crimes ultimately stand trial.
The panel of justices hearing arguments included the court’s two newest, Justices Elizabeth Rochford and Mary K. O’Brien. Both justices were elected last November, thanks in large part to hefty support from the state’s Democratic establishment, including Pritzker, who donated $1 million to each of their campaigns.
The justices opted to hear the case in which Pritzker is named as defendant, despite questions over whether the campaign contributions should prompt them to recuse. Pritzker had blasted such questions as “ridiculous.”