What you need to know as cash bail goes before IL Supreme Court

PEORIA (25News Now) - The embattled elimination of cash bail will go before the Illinois Supreme Court Tuesday to decide whether or not it violates the Illinois constitution.

More than 60 state’s attorneys and some sheriffs filed a lawsuit against the law late last year. Kankakee County Judge Thomas Cunningham declared it violated the state constitution, prompting a swift appeal to the Supreme Court level by Attorney General Kwame Raoul, representing Speaker of the House Emanuel “Chris” Welch (D - Hillside), Senate President Don Harmon (D - Oak Park), and Governor JB Pritzker.

Professor of Politics and Government and former attorney Tom McClure suspects the high court will focus on three arguments for the constitutionality of the SAFE-T Act.

Bail is required by the state constitution

Section 9 of the Illinois Constitution states “all persons should be available by sufficient sureties,” which leads opponents of the SAFE-T act to argue eliminating cash bail would directly violate language in the constitution.

“The clause that guarantees the defendants the right to bail except in some cases,” McClure said. The argument is that eliminating bail would deny defendants the right to bail.

However, the language doesn’t specifically say bail should be monetary. Certain serious offenses forbid bail before trial, like capital offenses or crimes that require a life sentence.

The state also argues that if the law violates the right of a defendant, then State’s Attorneys don’t have the legal standing to bring the case forward.

State leaders arguing for the elimination of cash bail believe the law doesn’t violate the Constitution at all. Rather, it upholds the court’s right to determine whether or not someone should be detained before their trial using the same criteria: whether the offender is likely to re-offend, if they’re a flight risk, or if they threaten the safety of a person.

The Maryland Policy Institute’s Sean Kennedy wrote the courts in support of keeping cash bail in place, arguing it is a necessary resource to protect the community and reduce the chance of re-offending. The group believes equity isn’t an issue, as judges take the defendant’s finances into consideration when setting bonds.

“Judges in Illinois already take case-specific circumstances into account related to the risk of flight and dangerousness including financial means, social ties, offense severity, and future safety risk,” the brief reads.

Eliminating bail violates victim’s rights

Opponents of the elimination of cash bail also argue the provision violates the rights of victims and their families.

Section 8 of the Illinois Constitution exclusively gives rights to victims of crime and their families. They’re provided the right to being treated with dignity, the right to advance notice of any and all hearings pertaining to their crime, as well as the right to know when the perpetrator is convicted or released from jail.

What’s under debate is one specific paragraph, listed below.

The parties arguing to keep bail in place believe this means bail is required in order to protect the rights of the victims and their families. Proponents for removing cash bail argue this doesn’t specifically require bail but instead requires the needs of the family and victim to be considered when setting bail.

More than 400 community groups across the state wrote a brief in support of removing cash bail.

“Abolishing monetary bail is likely to improve the safety of victims as well as the public,” the brief reads.

Separation of powers

Lastly, the court will decide if the Illinois General Assembly has the power to tell the courts what to do.

The state’s attorneys argue they do not, and the law infringes on the court’s power to decide how and when to use bail. The state argues the law provides more power to judges, as they have the final say in who will be detained before their trial based on the same framework of flight risk, risk of harming others, and the safety of the victim.

When a decision may come down

The Illinois Supreme Court is unlikely to pass down a decision after oral arguments Tuesday. The decision is likely to come down in April or May after the justices have been able to mull the decision over.

There’s speculation politics may play into their decision. The first suit was heard before a Kankakee county judge, while Tuesday’s arguments will go before the mostly Democratic Supreme Court. Judges are supposed to act impartially, holding the interpretation of the law above political alliances.

“Reasonable minds differ, that’s why it came up the system, I would suspect that it will not be on political factors. I think the legal issues are so clear here and they’re highly technical that you’re not necessarily going to see that,” McClure said. McClure said since the case is over specific legal questions and definitions, it may avoid the influence of politics.

The defendants/appellants are Democratic leaders in the legislative and executive branches. However, the lead attorney for those against the SAFE-T Act, Kankakee State’s Attorney Jim Rowe, identifies as a Democrat as well.

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