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In a roughly 50-minute hearing before the Illinois Supreme Court Tuesday, attorneys for prosecutors challenging the cash bail elimination provision in the controversial SAFE-T Act said the legislature circumvented the constitution when passing the law in 2021. But attorneys for Governor JB Pritzker, Attorney General Kwame Raoul, and legislative leaders say the law eliminating cash bail should stand.

The arguments Tuesday centered on two main points: whether the constitution requires bail to be monetary and whether the legislature was infringing on the authority of the judicial branch.

Deputy Solicitor General Alex Hemmer aid circuit court decision should be reversed for two main reasons, that the state is not required to use money as a condition of bail and the General Assembly had the right to change pre-trial bail laws and didn’t violate the Separation of Powers clause in the constitution.

Kankakee County State’s Attorney Jim Rowe, who filed the original challenge to the law, said the legislature could change the constitution by going to voters.

“The simple way for the legislature to accomplish all of these reforms [is to] take the question, put it on a ballot, pose it to the people and let ‘em vote on it at an election,” he said. “They are attempting to forego the will of the voters and they are attempting to drive this reform through mere legislation.”

Here’s a deeper look on the two main issues.

Bail clause

From the Illinois Constitution:

All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person. The privilege of the writ of habeas corpus shall not be suspended except in cases of rebellion or invasion when the public safety may require it.

Hemmer, the Deputy Solicitor General, said “sufficient sureties” don’t mean cash bail.

“Eliminating monetary bail doesn’t violate the bail clause because all the General Assembly has done is confer on criminal defendants a statutory right that exceeds the floor set by the constitution,” he said.

But Hemmer’s position was challenged by Justice Lisa Holder White:

Lisa Holder White: “In the past, we’ve seen where changes have been made with respect to who is entitled to bail, made through constitutional amendments,” she asked. “Why didn’t that happen here and should it have?”

Hemmer: “No, your honor, it should not have,” he said. “The General Assembly was not required to put these changes to the voters in a constitutional referendum.”

The two sides also sparred over a 2014 amendment to the state constitution known as the “Crime Victim Rights Amendment.”

“It doesn’t mean the amendment guarantees the existence of monetary bail, it just grants crime victims certain rights if monetary bail is set,” Hemmer argued. “The elimination of monetary bail doesn’t require that rule.”

Hemmer also argued the Crime Victim Rights Amendment only applied to victims of a crime and doesn’t apply to law enforcement or a prosecutor.

Chief Justice Mary Jane Thies immediately peppered Rowe with questions on whether he even had the right to challenge the law.

Rowe argued state’s attorneys were the proper authority to defend victims because they are responsible for filing criminal charges.

“The state’s attorneys are able to not only assert the rights of victims, but in many instances, we are required to,” Rowe said. “And we may be the only party that can assert that victim’s rights.”

Separation of Powers

From the constitution:

The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.

Chicago attorney Alan Spellberg, representing Will County State’s Attorney James Glasgow, argued the legislature was overreaching its authority by changing the way the court system is run.

“The judiciary has an inherent judicial authority to set bail, to deny bail, to control the proceedings before it, because it is necessary to maintain the administrative functions of the court [and] to maintain an orderly process of criminal procedure,” he said.

Justice Holder White again pressed Hemmer, this time on whether courts have the power to set cash bail.

Holder White: “This court specifically refers to the fact that the constitutional right to bail must be qualified by the authority of the courts and as an incidence of their power to manage the conduct of the proceedings. Aren’t you depriving the courts of that power?”

Hemmer: “I don’t think so, your honor,” Hemmer responded. “The provisions set out a range of conditions that a court can impose on a defendant who hasn’t been charged with a detention-eligible crime, including electronic monitoring, home confinement, check-ins with the court or with probation officers, and more. Those provisions do not violate the Separation of Powers principles that you described. ”

Holder White: “But a court cannot set bail? Monetary bail? The court cannot say ‘you need to post ten percent of this amount in order to be released.’

Hemmer: That’s true, your honor. Courts have a sort of narrow inherent power to detain a criminal defendant pending trial. The chief reason is the court has the power to kind of ensure that the defendant comes back to court for trial.”

But Hemmer continued to push that eliminating cash bail des not infringe on the rights of the courts.

The detention provisions do not conflict with any rule of this court. The only question is whether the detention provisions unduly infringe on judicial authority. The answer to that question is ‘no.’

At an unrelated news conference Tuesday, Governor Pritzker predicted victory.

“I watched a little portion of the proceedings at the Supreme Court as I was [in the car]. It was fascinating to listen to both sides. It’s clear to me there’s one side that has the much better argument on the SAFE-T Act and I think that will prevail,” Pritzker said.

We spoke on background with numerous prosecutors, attorneys, and other experts Tuesday, and there was a near consensus that they expect the court, especially with its Democratic majority, will uphold the law.

It could take a few months before the court issues a ruling.

Patrick Pfingsten

@pfingstenshow

patrick@theillinoize.com