Illinois lawmakers' effort to end cash bail is in the state Supreme Court's hands after justices heard arguments Tuesday on behalf of top Democrats, and a group of prosecutors and sheriffs who are challenging the law.
The state Supreme Court ordered in January that the provision would not take effect as anticipated and agreed to an “expedited” review following a Kankakee County judge's ruling that the General Assembly's elimination of cash bail was unconstitutional.
Brief arguments before the Supreme Court's seven justices in Springfield on Tuesday largely centered on whether lawmakers have the authority to make such a sweeping change to pretrial procedures.
The clampdown on courts that require a monetary payment before a defendant can be released from jail ahead of a criminal trial is part of a criminal justice package that Illinois Democrats wrote following the killing of George Floyd by Minneapolis police in 2020.
The package, dubbed the SAFE-T Act, passed the General Assembly in January 2021 — and was later amended to increase the type of offenses still eligible for cash bail as the change came under intense criticism from some law enforcement officials and Illinois Republicans.
Deputy Solicitor General Alex Hemmer, representing Attorney General Kwame Raoul and Democratic legislative leaders, argued that the legislature has set policy for decades that affect the pretrial process for Illinois criminal defendants. The previous ruling overturning the law was “clearly wrong on the law,” he argued.
If the Supreme Court struck down the change, Hemmer said it would call 60 years of legislative work on bail law into question. He also compared it to lawmakers frequently crafting laws that set mandatory jail sentences tied to certain convictions.
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Upholding the local court's decision would “tie the General Assembly's hands for decades to come, prohibiting it from setting public policy in the area of criminal procedure," he said.
Several justices questioned whether the law impeded judges’ ability to manage their courtrooms.
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Jim Rowe, the state's attorney for Kankakee County, argued that judges should have the option to set a cash bail as “a tool in the toolbox” to ensure that defendants come to the courthouse for trial.
Rowe faced several questions about whether prosecutors and sheriffs have legal standing to bring the case. Other justices questioned how the SAFE-T Act changes to cash bail differ from lawmakers' ability to set minimum criminal sentences or a list of factors that judges should consider when determining bail.
Alan Spellberg, a state's attorney representing Will County, argued that the elimination of cash bail differs from those examples. In the case of cash bail, he argued that lawmakers have “mandated the outcome.”
“We know from history, monetary components are an important incentive for ensuring that a defendant appears for trial,” Spellberg said.
The justices gave no timeline for when a decision in the case will be released.
