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Judges review constitutionality of pretrial detention provisions of SAFE-T Act | News


Deputy Solicitor General Alex Hemmer of the Attorney General’s Office argues before the Illinois Supreme Court Tuesday in Springfield.

SPRINGFIELD — The state’s highest court heard arguments Tuesday in a case that could dramatically change the legal landscape for defendants in jail awaiting trial.

It’s the latest development in an ongoing legal challenge to the pretrial detention provisions of the criminal justice reform SAFE-T Act, which the Supreme Court put on hold in December hours before it was set to take effect.

The case pits the Illinois attorney general, legislative leaders and the governor, who want to support pretrial detention reform, against state attorneys, including Jacqueline Lacey of Vermilion County and Kate Watson of Douglas County, as well as sheriffs representing 64 counties. who say the Legislature should have taken the constitutional amendment to the voters if they wanted to make such a change.

If the Supreme Court allows pretrial detention changes to take effect, judges will no longer be able to hold defendants awaiting trial simply because they can’t afford bail. The system, which replaces cash bail, would allow a judge to order custody based on the defendant’s level of risk of recidivism or absconding.

But the law would also create a list of lower-level, non-violent offenses for which a defendant cannot be tried unless he has already been released from custody at the time of the alleged offense or is proven to be a “willful flight” risk.

The case was appealed to the state Supreme Court after a Kankakee County Circuit Court judge ruled in December that parts of the law were unconstitutional. The court must decide whether the state constitution gives the judiciary a “right” to assess cash bail and whether the legislature overstepped its bounds by enacting a law that infringes that “right.”

Opponents of the law based their claims of unconstitutionality on two references to “bailable” in the state constitution. Section 9 states that “all persons” charged with offenses “shall be released on bail by sufficient sureties” except in certain specified circumstances. And Section 8.1 of the Crime Victims’ Bill of Rights states that a crime victim’s right to safety must be taken into account “when bail is denied or set.”

In oral arguments Tuesday, Deputy Solicitor General Alex Hemmer of the attorney general’s office argued that if the district court’s ruling is upheld, it would severely limit the General Assembly’s future powers.

The high court, Hemmer argued, has consistently allowed the General Assembly to regulate pretrial practices, including setting sentencing requirements, prohibiting the use of unsecured commercial liens, and prohibiting detention under certain circumstances.

“We’re talking about six decades of statutory regulation of pretrial practice being called into question by plaintiffs’ broad interpretation of judicial authority and narrow interpretation of legislative authority in this area,” Hemmer said.

The constitution’s reference to bail and “sufficient sureties” does not imply a monetary nature, he argued. He said the language comes from the state constitution of 1818, which was passed at a time when the modern money bail system was “unknown.”

“Bail simply meant the right to be released on conditions set by the court,” he said.

Judges retain the power to set release conditions under the new law, he added.

But opponents argued that the constitution’s reference to “bail” essentially served as a requirement that the state maintain a cash bail system.

Specifically, prosecutors argued that the Crime Victims’ Bill of Rights was submitted to voters as a constitutional amendment in 2014, which was the proper course for such a change.

Kankakee County State’s Attorney James Rowe argued that lawmakers passed the amendment to voters in the 1980s when they sought to expand the list of non-bailable offenses. He contrasted those efforts with the passage of the SAFE-T Act in January 2021, which quickly passed through the Legislature and was brought up for a vote in the middle of the night.

Hemmer objected that the constitution contained several references to institutions that no longer existed.

“The bail clause itself applies to felonies that are punishable by the maximum penalty, but there are no more such felonies in Illinois,” he said. “Nobody would argue I think the bail clause requires the state to support capital crimes just by reference to it, and the same is true.”

Each side faced questioning from the court, which has a 5-2 majority of justices who ran as Democrats.

Roe was only one sentence into his opening statement, saying his “oath to the public safety” compelled him to challenge the law when Chief Justice Mary Jane Theis intervened.

“So, I’m going to stop you right there,” Tice said, before questioning whether state attorneys had the legal authority to file a subpoena.

“This court has stated that a party has standing to challenge the constitutionality of a statute only to the extent that it adversely affects his or her rights. …How does this statute adversely affect the rights of elected state attorneys and sheriffs?” she asked.

Roe responded that the group had a right because they had sworn to uphold the constitution. They replied that judges and lawyers also take such an oath.

“Are you saying that every lawyer in Illinois has the right to challenge a law they don’t like?” she asked.

Rowe said no, but that state attorneys “are in a very unique position” because they are “the only ones who can come into a courtroom and make a motion … to deny someone bail.”

He added that prosecutors “have an inherent interest in us being able to move cases through the court system so that we can ensure that the defendant appears in court.”

“Why shouldn’t you continue to have that right?” Theis put in. “If you say it’s a right—a constitutional right, I’m not sure—but you say you have a right to enforce the appearance of the accused … doesn’t that continue under this Act?” she asked.

“Well, the law eliminates the ability for the state’s attorney to even request cash bail as sufficient security,” Roe said. “And for the sheriff, the sheriff must effectively ensure the safety of every law enforcement officer under his authority.”

Roe argued that requiring the sheriff to serve a notice of appearance and a warrant in two cases doubles the risk of harm. And he later added that prosecutors should be able to advocate on behalf of the victim.

“Therefore, the plaintiffs are fully convinced that the prosecutors and sheriffs have the authority to pursue these cases. And we also consider this act unconstitutional,” he said.

The court ordered the case to be heard on an expedited basis, and a decision is expected later this year, although the court did not set a specific time frame.


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