SPRINGFIELD — Illinois Supreme Court justices on Tuesday questioned attorneys arguing over whether a statewide measure to eliminate cash bail is constitutional, preparing for a decision that could affect criminal justice policy in Illinois for years to come.
The seven-judge panel took up the issue after hearing arguments in Springfield in a case that raised questions about the role of Illinois lawmakers in shaping the criminal process.
At issue is a pretrial provision that is part of the Safety, Accountability and Fairness Today Act, also known as the SAFE-T Act, which was passed by the Illinois General Assembly in early 2021 and signed shortly thereafter by Governor J. B. Pritzker. .
The high court is hearing Illinois Attorney General Kwame Raul’s appeal of a Kankakee County judge’s ruling that pretrial release decisions based on monetary considerations were unconstitutional. The December decision came less than two weeks before cash bail was lifted and caused confusion in courtrooms across the state.
The high court intervened hours before the measures were to take effect, halting enforcement until the high court rules on the matter “to preserve consistent pretrial procedures throughout Illinois.”
“The district court’s unprecedented decision … will tie the hands of the General Assembly for decades to come, barring it from determining public criminal procedure policy,” Deputy Solicitor General Alex Hemmer argued on behalf of the state.
The attorney general’s office rejected claims in a lawsuit filed by more than 60 state attorneys general, most from downstate, who argued that lawmakers should have put the question before voters as a proposed amendment to the state constitution.
Kankakee County State’s Attorney James Rowe says the state “made several unconstitutional turns” in drafting the legislation.
“Judges should have the tool that the people of Illinois put in the judge’s toolbox,” Roe told the judges, referring to the right to set cash bail.
Prosecutors who filed the suit also argued that the law violates the Constitution’s separation of powers clause, taking away powers from judges and infringing on the rights of crime victims.
The AG’s office disputes that the no-cash bail policy violates victims’ rights and argues that history and precedent give the General Assembly the right to play a role in shaping the pretrial criminal process.
In a statement, the AG’s office argued that the high court had “no compelling reason” to side with the prosecutors and argued that their position would “effectively prevent the General Assembly from ever reforming pretrial procedures in the state.”
If repealed, these provisions would dramatically change the way pretrial justice is administered in the state.
In addition to eliminating money as a factor in release decisions, the measure also outlines a new pretrial system in which defendants will appear for two hearings: an initial hearing, also known as a conditions hearing, and a custody hearing for those , who prosecutors are seeking to detain, is designed to give a more complete picture of whether someone should be released or jailed pending trial.
Pretrial provisions would allow judges to detain defendants for certain crimes if they are considered a flight risk, or for more serious crimes if they are considered a danger to the community.