SPRINGFIELD — Kankakee County State’s Attorney James Rowe on Tuesday was making his argument for why a law eliminating cash bail violates the state constitution when Illinois Supreme Court Chief Justice Mary Jane Theis cut in with questions about his lawsuit’s legal standing.
“How does this statute adversely impact the rights of elected state’s attorneys and sheriffs?” Theis asked Rowe during the roughly 45-minute hearing in a packed courtroom.
Rowe, one of about 60 prosecutors statewide to sue over the law, said the plaintiffs have standing because of an oath they took to “uphold and defend the constitution of the state of Illinois.”
“Was that the oath we took?,” Theis asked him, noting that all lawyers take the same oath for entry to the state bar. “Or was the language prescribed in statute that we support the constitution of the United States and the constitution of the state of Illinois. … So are you saying every lawyer in the state of Illinois has the standing to challenge the statute?”
“I’m not arguing that your honor,” Rowe said. “I’m saying the state’s attorneys and sheriffs stand in a very unique position.”
The exchange took place during a hearing on the state’s appeal of a lower court ruling that sided with prosecutors and put an abrupt hold on the state’s plan to end cash bail.
In their argument, lawyers for the Illinois attorney general’s office contended that nothing in the state constitution requires cash bail as a method of ensuring a defendant will show up for court, and that lawmakers have long held the right to shape criminal justice policies.
The high court’s decision, which could impact the landscape of criminal justice policy in Illinois for years to come, isn’t expected for weeks.
The pretrial provisions are part of a 764-page law known as the SAFE-T Act, which was signed into law by Gov. J.B. Pritzker in early 2021. A Kankakee County judge’s ruling in December siding with the plaintiffs came less than two weeks before cash bail was set to be abolished and led to confusion in courtrooms across the state.
The state Supreme Court stepped in hours before the measures were to take effect on New Year’s Day, halting implementation until it rules on the matter.
On Tuesday, justices asked Kwame Raoul’s office about why lawmakers did not seek to eliminate cash bail via a referendum to voters, as the plaintiffs argued should have happened. The justices asked the plaintiffs how the elimination of cash bail is different from legislative policies that require judges to impose certain sentences — such as mandatory minimums — for specific crimes.
“The circuit court’s unprecedented decision … would tie the General Assembly’s hands for decades to come, prohibiting it from setting public policy in the area of criminal procedure,” Deputy Solicitor General Alex Hemmer argued on behalf of the AG’s office.
Prosecutors have contended the SAFE-T Act law violates the constitution’s separation of powers clause by taking away power from judges, and also infringes on the rights of crime victims.
Justice Joy Cunningham cut to the heart of the issue, asking Rowe: “What’s the purpose of setting monetary bail as you see it?”
Rowe replied that cash bail balances defendants’ interest in liberty with “society’s interest in securing and ensuring the defendant does appear for trial to participate in the court process.”
“Is money the only way to achieve those ends?” Cunningham asked Rowe.
“I don’t believe the plaintiffs are arguing money is the only way,” Rowe answered. But, he added, “Judges should have that tool that the people of Illinois have put in the judges’ toolbox.”
In response to arguments from the state, Justice Lisa Holder White asked Hemmer whether the law’s provisions deprive judges of power to manage proceedings. He responded that the law still allows courts to detain some defendants, and lays out a range of conditions for release such as electronic monitoring and home confinement.
“Those provisions do not violate the separation of powers of principles that you described,” he said.
“But a court can’t set bail,” Holder White countered.
“That’s true your honor. But I want to be very clear that … this court has never held that courts have an inherent power to set monetary bail,” he said.
After the hearing, Raoul said there’s nothing specific in the state constitution that mandates cash bail “as an official surety.”
“I think the plaintiffs could not overcome that,” Raoul said. “There’s no language in the constitution that says you have to have monetary bail. … That is something that any lay person can sit and read (in) the constitution and know that sufficient sureties can refer to a wide range of things.”
The attorney general’s office has pushed back on the argument that lawmakers should have put the matter before voters as a proposed amendment to the state constitution.
“It could arguably be considered but it wasn’t necessary. That’s the point,” said Raoul, a former state senator. “During my 14 years in the legislature, I affected policy on a great number of things. … The legislature still sets mandatory minimums and maximums and that happens all the time. We don’t put it up to referendum (for the voters).”
Will County State’s Attorney James Glasgow, one of the plaintiffs in the lawsuit, stressed after the hearing that maintaining a cash bail system is crucial in helping law enforcement fight crime.
“We feel very strongly that it’s a serious public safety issue but at the same time, we want to join in the fight toward reforming bail. We realize that that’s an absolute requirement,” Glasgow said. “But there are also situations where the courts have to have the ability to control in cases of violence, and that’s our main concern here.”
Pritzker at an unrelated news conference in Normal, said he watched portions of the arguments on a video feed while traveling.
“My view is the SAFE-T Act is actually keeping people much safer,” Pritzker said, speaking as if the pretrial provisions were not on hold. “And what it’s doing is keeping violent criminals in jail, not allowing them to have bail, but taking nonviolent criminals and saying that there’s no reason for us to have to pay for you to sit in jail when you can’t afford the few hundred dollars to get out of jail.”
The pretrial provisions would allow judges to detain defendants for some crimes if they’re deemed a flight risk or, for more serious crimes, if they’re considered a danger to society.
Buckley reported from Chicago. Chicago Tribune’s Rick Pearson contributed.
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