On Party Lines, Illinois Supreme Court Upholds Law Ending Cash Bail
The Illinois Supreme Court chamber in Springfield.
NOTE: This story was originally posted for subscribers only. To receive subscriber-only newsletters and content, click here.
In a 5-2 party line decision Tuesday, the Illinois Supreme Court upheld the controversial SAFE-T Act, the law ending cash bail in Illinois courts.
From the ruling by Chief Justice Mary Jane Theis:
The Illinois Constitution of 1970 does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public. Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims. The Act’s pretrial release provisions set forth procedures commensurate with that balance. For the reasons that we have stated, we reverse the circuit court’s decision to grant summary judgment in favor of plaintiffs.
Sixty days after the filing of this opinion, on September 18, 2023, this court’s stay of pretrial release provisions in Public Acts 101-652 and 102-1104 shall be vacated. On that date, the circuit courts are directed to conduct hearings consistent with Public Acts 101-652 and 102-1104, and Illinois Supreme Court Rules implementing those pretrial release provisions shall become effective.
Republican Justice David Overstreet dissented:
[T]he legislature’s abolishment of monetary bail is in direct violation of the plain language of our constitution’s bill of rights and, more specifically, the vested rights of crime victims set out in article I, section 8.1, of the Illinois Constitution. Ill. Const. 1970, art. I, § 8.1(a)(9). Therefore, this court has an absolute obligation to declare the pretrial release provisions of the Act to be invalid and unenforceable no matter how beneficial the abolishment of monetary bail may be.
The people of Illinois exercised their ultimate sovereign power in 2014 when they vested crime victims with constitutionally protected rights. They did so by amending the bill of rights in our state constitution, setting out specific enumerated rights to be enjoyed by all crime victims in this state. Those enumerated rights include the explicitly defined right to have their safety and the safety of their families considered by the courts in “denying or fixing the amount of bail.”
This constitutionally protected right is, without question, a limitation on the General Assembly’s authority.
Reaction came from all sides.
Governor JB Pritzker:
“I’m pleased that the Illinois Supreme Court has upheld the constitutionality of the SAFE-T Act and the elimination of cash bail. We can now move forward with historic reform to ensure pre-trial detainment is determined by the danger an individual poses to the community instead of by their ability to pay their way out of jail. My thanks to Attorney General Raoul’s office and the many people who worked tirelessly over the last months to defend these important reforms. I look forward to continuing to work with the General Assembly and our many other partners as we transition to a more equitable and just Illinois.”
Speaker Chris Welch:
“Today the Supreme Court upheld the legislature’s promise to create a more equitable and fair criminal justice system — a system that can now better protect victims and will no longer allow violent offenders to buy their way out of jail. Today’s decision is a win for the people of this state, but also for our democracy. As duly elected representatives, we have the privilege and responsibility of creating policy that reflects our values as Illinoisans. Our state’s highest court rightfully ruled that frivolous lawsuits cannot and will not stop the legislative process.”
Attorney General Kwame Raoul:
“I am pleased – although not surprised – that the Illinois Supreme Court has upheld the constitutionality of the SAFE-T Act. The court’s decision today holds – as my office has consistently advocated – that the General Assembly had the authority to eliminate cash bail and replace it with a system in which people are detained pending trial only if they pose a threat to the public or are a flight risk. And it rejects the plaintiffs’ argument that courts must retain the authority to set cash bail free of legislative regulation – an argument that would have called into question decades of criminal justice reforms in our state.
“Someone’s experience with the criminal justice system should not vary based on their income level. The SAFE-T Act was intended to address pervasive inequalities in the criminal justice system, in particular the fact that individuals who are awaiting criminal trials – who have not been convicted of a crime and are presumed innocent – may spend extended periods of time incarcerated because they cannot afford to pay cash bail. The law ensures that the decision about whether people are detained pending trial is not based on whether they can afford to pay for their release.
“With the court’s decision today, the elimination of cash bail will soon take effect. Other parts of the act, not challenged by the plaintiffs, also remain in effect and will have a positive impact within the state. This includes my office’s authority to conduct pattern-and-practice investigations of civil rights violations by law enforcement and improvements to the police officer certification process that create uniformity for departments across the state, promote professionalism in law enforcement and increase transparency.
“Attorneys from my office have spent many months defending the SAFE-T Act’s constitutionality in courtrooms throughout Illinois against meritless challenges. I am proud of their dedication and appreciate their service to the people of Illinois.”
Illinois FOP President Chris Southwood:
“Today’s ruling by the Supreme Court confirms Illinois’ status as the state of lawlessness and disorder. The court ignored the pleas of nearly every prosecutor in the state of Illinois, Democrat and Republican, that the elimination of cash bail will put dangerous criminals back on the street, instead of keeping them in jail or forcing them to post cash bail as they await trial. Many of those offenders will commit crimes again within hours of their release. And who will have to arrest those offenders again and again? The police officers whose jobs have been made immeasurably more difficult by all of the new anti-law enforcement measures that are in place. Today’s ruling is a slap in the face to those who enforce our laws and the people those laws are supposed to protect.”
House GOP Leader Tony McCombie (R-Savana):
“Politically compelled public policy has never been in the best interest of the people. The liberal court’s decision today is not surprising, and this decision will undoubtedly hurt families and businesses around the state. Anyone that is familiar with the court system knows that this is not about the ability whether an offender can post bail, but a progressive movement to decriminalize crime and promote an environment for repeat offenders.
This policy is not about bail reform, but about elevating criminals. The Illinois House Republicans will join families around the state to bring light to the failings of the liberal imbalance of the General Assembly. We know there is an approach to address comprehensive criminal justice reform, but that must start with offenders being held accountable for the crimes they commit.
I look forward to working with victim advocates and our law enforcement partners to bring forth changes that ensure safe neighborhoods, thriving business districts and most importantly protect victims of crime.”
Senate GOP Leader John Curran (R-Downers Grove):
“The legislature should finally heed the concerns of law enforcement, judges and their communities and immediately return for a special session to properly address the SAFE-T Acts’ negative impact on the public before this ill-conceived statute goes into effect in 60 days.
“While no person should be held in jail or let free because of their economic circumstances, the SAFE-T Act handcuffs law enforcement and judges making it more difficult for them to combat violent crime.
“It is possible to reform our cash bail system while keeping our communities safe and the legislature should return immediately to ensure that public safety is in no way jeopardized by the implementation of this reckless legislation before it takes effect.”
A special session has about as much chance of happening as the Cardinals winning the World Series. [Sorry not sorry.]