The state’s Supreme Court justices peppered attorneys with questions Tuesday during arguments over a controversial provision of the landmark SAFE-T Act that would make Illinois the first state in the nation to abolish cash bail.
The provision was to go into effect Jan. 1 under the wide-ranging criminal justice reform bill, but it was challenged by a flurry of last-minute lawsuits by roughly 60 sheriffs and state’s attorneys.
In December, Kankakee County Chief Judge Thomas Cunnington agreed with the groups and ruled the cash bail provision unconstitutional. An appeal by Attorney General Kwame Raoul sent the matter to the Supreme Court.
For nearly an hour Tuesday morning, justices questioned the meaning of bail in the state constitution, whether the elimination of cash bail should be brought to voters in a ballot question and whether the legislation unduly restricted judges’ authority to set conditions of release for people accused of crimes.
“Aren’t you depriving the courts of that power?” Justice Joy Cunningham asked Deputy Solicitor General Alex Hemmer in a line of questions about the separation of powers between the legislature and the courts.
Hemmer conceded the SAFE-T Act eliminated the ability of judges to set a monetary bail but argued that “this court has never held that courts have an inherent power to set monetary bail.”
Judicial precedent gives the court the authority to detain people for specific reasons, Hemmer argued, but legislators have “always” set the specific rules governing pretrial release.
“The only question is whether the detention provisions unduly infringe on judicial authority, and the answer to that question is no,” Hemmer stated.
Pointing to mandatory sentencing laws passed previously by legislators for certain offenses, Hemmer noted the court has ruled they don’t violate judges’ authority “even though those laws restrict courts’ discretion.”
Earlier in the hearing, Hemmer contended that the state constitution never defines bail specifically as monetary in nature when it holds that defendants be able to seek pretrial release through “sufficient sureties.”
The constitution “doesn’t require the state to maintain any particular method of obtaining pretrial release, including the system of monetary bail,” Hemmer said. “The elimination of monetary bail is thus consistent with the bail clause because it safeguards defendants’ rights to seek pretrial release.”
“So the SAFE-T Act did not amend the constitution?” Justice P. Scott Neville Jr. asked.
“No, it did not,” Hemmer held.
Kankakee County State’s Attorney Jim Rowe stated in his opening statements that his “oath and the interest of public safety” compelled him and other prosecutors and sheriffs to oppose the act.
He quickly faced questions on whether the prosecutors and sheriffs who brought the suits had standing to do so.
“I’m going to stop you right there,” Chief Justice Mary Jane Theis interjected first. “How does this statute adversely impact the rights of elected state’s attorneys and sheriffs?”
Rowe argued prosecutors would be harmed by being prohibited from seeking monetary bail, and that sheriffs could be harmed in their ability to keep their deputies safe because it “doubled” instances when law enforcement would possibly come into contact with “a very dangerous individual.”
Further, Rowe said, prosecutors are tasked with protecting the rights of victims in criminal cases.
“We would have to stand by — we would literally have to sit on our hands — as we wait for a victim’s constitutional rights to be violated, or defendant’s constitutional rights to be violated,” Rowe said. “I got to work every day to prevent that very injury.”
He maintained that lawmakers had a clearer path to purse changes in the bail system. “Take the question, put it on a ballot, propose it to the people, let them vote on it at an election,” he said.
Rowe cited ballot questions in New Jersey and New Mexico that achieved “comprehensive and significant bail reform.” By contrast, he said, the Illinois legislature passed their reforms “in the middle of the night.”
Justice Cunningham pressed Rowe, “What is the purpose of setting monetary bail?” and asked “Is money the only way to achieve those ends?”
Rowe conceded it wasn’t the only way to ensure a defendant’s appearance at trial but insisted, “The judge should have that tool that the people of Illinois have put in that judge’s toolbox, and that’s the ability to impose a monetary condition of bail.”
Criminal justice reform advocates argue that elimination of cash bail will improve public safety and be fairer than a system that determines release based on a person’s ability to post money. Opponents have argued it will lead to an increase in crime.
Studies of jurisdictions that have nearly eliminated cash bail have shown no significant increase in crime generally, nor by defendants released while awaiting trial. In some cases, defendants were more likely to return to court.
The court’s newest members, Elizabeth Rochford and Mary O’Brien, both elected last fall amid heated arguments over the SAFE-T Act, did not ask any questions during the hearing Tuesday.
The justices did not indicate when they will announce their decision, but a spokesman for the court previously said a ruling could take several months.
