IL Supreme Court hears on arguments on eliminating cash bail

PEORIA (25News Now) - The final say on what happens to cash bail in Illinois is now in the hands of the state Supreme Court.

The cash bail portion of the SAFE-T Act has faced challenges since it was passed in January 2021. More than 60 State’s Attorneys and sheriffs signed on to a lawsuit in opposition to eliminating cash bail. A Kankakee County judge declared it unconstitutional, prompting a swift appeal to the Supreme Court.

The oral arguments before the seven justices boiled down to two points: First, whether or not state lawmakers have the power to tell courts what to do. Second, if the states attorneys even have the standing to bring this case to the Supreme Court.

Deputy Solicitor General Alex Hemmer argued on behalf of the state’s top Democratic leaders, Speaker of the House Emanuel “Chris” Welch, Senate President Don Harmon, and Governor JB Pritzker. Welch was visible during the arguments. Pritzker was in Normal, promoting his proposed investments in higher education.

Hemmer argued the state legislature has imposed rules on the courts before, like mandatory minimum sentences in the Illinois Criminal Code. Eliminating cash bail would be similar to those situations in his mind.

The state also repeatedly referenced previous case law, relying on precedent to justify making the change. The justices must determine if this bail reform fits under those previous changes, or creates an overreach by the legislature.

“But a court cannot set bail [under the SAFE-T Act],” Justice Lisa Holder White said to Hemmer. “A court cannot say ‘you need to post 10% of this amount in order to be released.’”

“This court has never held that courts have inherent power to set monetary bail,” Hemmer said in response. He also addressed the argument that defendants must be “bailable” in the Illinois Constitution, interpreting it to say that it is a broad term meaning there must be something to incentivize defendants to return to court, which isn’t inherently monetary bail.

“The circuit court’s unprecedented decision rejecting both of those propositions would tie the General Assembly’s hands for decades to come, prohibiting it from setting public policy in the area of criminal procedure,” Hemmer continued.

Kankakee State’s Attorney Jim Rowe argued on behalf of his fellow county officers. He argued the SAFE-T has the power of a constitutional amendment without going through the process of bringing it to voters first.

“The simple way for the legislature to accomplish all of these reforms? Take the question, put it on the ballot, propose it to the people, let them vote on it at an election,” Rowe said.

However, most of his allotted time was spent debating if the attorneys have the legal standing to bring this case to the court.

“Each of us, each of Your Honors.” Rowe said addressing the bench, “we have all raised our right hand and wore a duty to uphold and defend the Constitution of the United States.”

Chief Justice Mary Jane Theis argued back and forth with Rowe, saying that the oath creates too broad a range of people who can object to the policy.

“Every lawyer and person who comes to be admitted in the bar of Illinois under the attorney’s act takes the same oath,” Theis said. “Are you saying every lawyer in the state of Illinois has the standing to challenge any statute they don’t like?”

Rowe and his colleagues still believe this elimination of cash bail creates a safety issue for both law enforcement and the community at large. He said in arguments he didn’t want to wait for a victim’s state constitutional rights to be violated before the SAFE-T act could be brought before the court.

“We feel very strongly there’s a serious public safety issue but at the same time, we want to work towards reforming bail,” Will County State’s Attorney Jim Glasgow said following the hearing. “We realize that’s an absolute requirement.”

A decision won’t be expected for some weeks, the Supreme Court rarely has a quick turnaround after arguments are heard. Following the hearing, Attorney General Kwame Raoul (D) said he was pleased with Hemmer’s arguments, and felt the point was clear.

“I think the most compelling argument is that there’s no language in the constitution that says you have to have monetary bail, there’s no language,” Raoul said.

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