SPRINGFIELD, IL — The future of monetary bail and pretrial detention rules for people accused of criminal offenses is set to be determined by the Illinois Supreme Court.
Justices heard oral arguments Tuesday in an appeal of a Kankakee County circuit judge’s Dec. 28 ruling finding the pretrial release provisions of the SAFE-T Act criminal justice reform package were an unconstitutional violation of inherent judicial authority and the principal of separation of powers.
Since that ruling was only effective in the 64 counties where elected state’s attorneys challenged the law, the Supreme Court paused adoption of the act — itself amended three weeks before it was due to take effect.
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That kept current cash bail procedures in place while the state’s highest court considers an appeal from Attorney General Kwame Raoul, Gov. J.B. Pritzker, House Speaker Chris Welch and Senate President Don Harmon.
During questioning Tuesday, members of the court’s Democratic majority indicated they were sympathetic to arguments from Democratic lawmakers that the elected prosecutors lacked the standing to sue and that the act does not violate any inherent judicial authority.
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Deputy Solicitor General Alex Hemmer argued on behalf of the offices of the attorney general, governor and legislative leaders.
Hemmer said the state supreme court has never held that judges have an inherent power to set cash bail. Instead, he said it has found that courts have “a sort of narrow, inherent power to detain a criminal defendant standing trial.”
The portion of the SAFE-T Act that eliminates cash bail, The Pretrial Fairness Act, as amended in the final version of the bill, includes clauses that maintain that judicial authority, Hemmer said.
“They are consistent with the inherent judicial power to detain a criminal defendant pending trial in almost every case in which that power would be used. They permit detention on either flight risk or public safety ground of anyone charged with virtually any serious felony in the state,” Hemmer said.
It would be giving the prosecutors too much, he said, to strike down the whole bill “just because there might be some hypothetical case in which a court would want to detain a low-level misdemeanant and lacked the statutory authority to do so.”
The deputy solicitor general also noted that lawmakers already mandate certain decisions from judges, from laying out factors that must be considered when setting bail to mandatory sentencing enhancements for certain crimes.
“And the same is true here,” he said. “The circuit court’s contrary decision is clearly wrong on the law. The circuit court reasoned that the General Assembly is expressly prohibited from regulating in this area. Even plaintiffs don’t defend that holding, and for good reason, that holding would call into question six decades of legislative reform in this state.”
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Hemmer said that, because the state constitution does not expressly require monetary bail, there is no reason that a constitutional amendment must go before voters in a statewide referendum, as the prosecutors and sheriffs have suggested.
“Plaintiffs argument, if accepted, would bring down not only the pretrial release provisions enacted by the SAFE-T Act, but also the entire scaffolding of legislative regulation of pretrial release in Illinois that existed for 60 years before the SAFE-T Act’s enactment,” Hemmer argued.
He asked justices to find that the state’s attorneys and sheriffs challenging the law have not met their high burden of establishing the law would be unconstitutional in every circumstances, even if the court were to conclude all portions of the SAFE-T Act are constitutional.
Kankakee County State’s Attorney James Rowe faced questioning from Chief Justice Mary Jane Theis over whether he and his fellow prosecutors have standing to challenge the law in the first place.
Rowe suggested, because prosecutors are the only people able to ask judges to hold someone without bail ahead of trial, the bill had an adverse impact on his rights.
The state’s attorney also said prosecutors have an inherent interest in moving people through the court systems and sheriffs, who could be required to serve additional notices to defendants, are tasked with ensuring the safety of their employees and detainees.
“We’ve now doubled the numbers of instances where law enforcement is going to come into contact with, perhaps, a fugitive or very dangerous individual, so plaintiffs squarely believe that prosecutors and sheriffs have standing to pursue these matters,” Rowe said.
Rowe said elected county prosecutors are also tasked with asserting the rights of crime victims, though Theis questioned whether such authority extended beyond individual criminal cases. A clause in the Illinois Constitution grants the “right to have the safety of the victim and the victim’s family considered in denying or fixing the amount of bail.”
The Kankakee County prosecutor said Illinois lawmakers should follow the lead of their counterparts in New Jersey and New Mexico in order to pass comprehensive bail reform. Both states passed referendums to change their rules around pretrial release.
“The simple way for the legislature to accomplish all of these reforms: take the question, put it on a ballot, propose it to the people, let them vote on it at an election,” he said. “It quite simply is that easy.”
Rowe also brought up a pair of Illinois referendums from the 1980s which expanded the list of nonbailable criminal offenses. But in the case of the SAFE-T Act and its Pretrial Fairness Act provisions, lawmakers sought to abolish monetary bail as “surety” through legislation alone.
“They literally tried to drive the reform by filing 764 pages of directions at 4 a.m. in the middle of the night, in the dark, with an hour to get there,” Rowe said. “And unfortunately they took a few unconstitutional turns along the way.”
Alan Spellberg, a special assistant state’s attorney from Will County appearing on behalf of the appellees, argued that mandatory sentencing laws differ from courts inherent authority to set bail comes down because sentencing is a “concurrent” authority between judges and lawmakers.
Spellberg said that contrasts with setting or denying of bail to control court proceedings, which must be left to the discretion of individual judges.
“That is what is lacking in these provisions which are at issue. Because under the provisions that have been adopted in the SAFE-T Act and the follow-up amendatory provisions, every judge in the state of Illinois is prohibited from considering a monetary component of pretrial release,” Spellberg said.
“And in fact, in some instances, the judges are prohibited from holding a defendant or imposing bail even if they believe there are no set of conditions which are available to safely ensure the defendant’s return for trial,” he added. “That is why the trial court found the statutes violate the separation of powers and that is why the court should affirm.”
Democrats, who sponsored the challenged legislation, hold a 5-2 majority on the state’s highest court, with the two newest justices having been assisted to the bench with $2 million in contributions from Gov. Pritzker, who described as “ridiculous” the notion that they might recuse themselves due to the donation.
The Supreme Court is considering the case on an expedited schedule, but there is no deadline for justices to issue a decision.
Watch: Full Video of March 14, 2023, Illinois Supreme Court Oral Arguments : Rowe v. Raoul
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