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AG Raoul files SAFE-T Act appeal with Illinois Supreme Court

Thursday, Jan 26, 2023 - Posted by Rich Miller

* The appeal is 59 pages long. I’ve excerpted some of the highlights, but there’s a lot more so click here to read it all

This appeal concerns a facial constitutional challenge to the Safety, Accountability, Fairness and Equity-Today (“SAFE-T”) Act, a statute passed in 2021 by the General Assembly and signed into law by Governor Pritzker. […]

Plaintiffs are the state’s attorneys (and, in some cases, the sheriffs) of 64 Illinois counties. […]

The circuit court issued an opinion rejecting plaintiffs’ challenges to the Act as a whole but declaring the pretrial release provisions facially unconstitutional. […]


    1. Whether the Illinois Constitution prevents the General Assembly from eliminating monetary bail, because monetary bail is required by either (a) article I, section 9 (which makes criminal defendants “bailable,” subject to certain exceptions), or (b) article I, section 8.1 (which guarantees certain rights to crime victims).

    2. Whether the Constitution prevents the General Assembly from enacting statutes governing the circumstances under which courts may detain individuals pending trial. […]

(T)he proper reference point for the meaning of the bail clause is the early nineteenth century, when the [constitutional text as essentially remains today] was drafted. […]

And in the early nineteenth century, “bail” did not mean monetary bail—i.e., the practice of allowing a defendant to be released pretrial only upon payment. Rather, the term “bail” referred to pretrial release more generally, granted on conditions designed to ensure the defendant’s appearance at future court appearances—i.e., “sufficient sureties.” Indeed, monetary bail was all but unknown at the time the 1818 Constitution was drafted. At that time, as one court has explained, “‘bail’ in criminal cases relied on personal sureties”— individual guarantors, including friends or relatives, who agreed to “guarantee the defendant’s appearance at trial and, in the event of nonappearance, a sum of money.” … “In the English tradition of bail that influenced early American practice, the pledge did not require any upfront payment” at all. Holland, 895 F.3d at 290. Today’s system of monetary bail “appear[s] to have emerged in the mid-to-late Nineteenth Century,” id. at 293; accord Nat’l Inst. of Corrections, Fundamentals of Bail 26 (2014), 12 decades after the bail clause was enacted as part of the 1818 Constitution. […]

Dictionaries from this era further refute the claim that “bail” means monetary bail specifically. Samuel Johnson’s dictionary of 1755 defines “bail” as “the freeing or setting at liberty [of] one arrested or imprisoned . . . , under security taken for his appearance,” 1 Samuel Johnson, A Dictionary of the English Language (1755),13 a definition reprised in the 1818 version, published the year the bail clause was enacted … Even later dictionaries preserve this basic meaning, defining bail as “the means of procuring the release from custody of a person charged with a criminal offense . . . by assuring his future appearance in court,” James A. Ballentine, Ballentine’s Law Dictionary 119 (William S. Anderson ed., 3d ed. 1969),16 or even “the process by which a person is released from custody,” 1 Webster’s Third New Int’l Dictionary 163 (1971) (def. e).

To be sure, defendants released before trial, or “bailed,” historically were released with conditions, both monetary and non-monetary, meant to assure their appearance at trial. But the Act’s pretrial release provisions permit a court to do just that. See 725 ILCS 5/110-5(c), 5/110-10. A court may require a defendant to submit to electronic monitoring to ensure his or her appearance at trial; it may require a defendant to remain at home, with or without the supervision of the Pretrial Services Agency, to ensure that he or she does not flee the State; it may require a defendant to report to the court, or to a third party, as frequently as it deems necessary; and it may impose any other “reasonable conditions” that it believes are needed to ensure the defendant’s appearance. Id. 5/110-10(b). These non-monetary conditions of release, just like monetary bail, allow a court to ensure that a defendant will return, and so constitute “sufficient” sureties within the scope of the clause. […]

The legislative history of the 1970 Convention also refutes plaintiffs’ reading of the clause, which would protect not defendants’ liberty interests but instead the institution of monetary bail. Indeed, the convention drafters expressly discussed the possibility that the General Assembly might at some future point abolish monetary bail, and agreed that doing so would not violate the bail clause. […]

This Court has also considered and rejected a version of plaintiffs’ argument before—namely, that the bail clause requires a particular kind of “surety.” As discussed, supra p. 6, the Code of Criminal Procedure of 1963 contained provisions designed to eliminate or reduce defendants’ reliance on professional surety companies, an industry the General Assembly viewed as predatory. The statute thus permitted a defendant for whom monetary bail was set to obtain release by furnishing only 10% of the amount, but imposed more onerous burdens on professional surety companies, requiring them to furnish a cash deposit for 100% of the amount. … The Court rejected the defendant’s argument that the bail clause required the State to maintain a particular kind of surety system—there, the prior system under which professional surety companies put up unsecured bonds. … It explained that the legislature had determined that such a method “does not accomplish the purpose of bail”—namely, “to give the accused liberty until he is proved guilty, but yet have some assurance that he will appear for trial”— and the Court would defer to that decision. […]

Even if the circuit court were correct that the bail clause’s reference to “bail” should be read to refer to monetary bail, it would not follow that section 110-1.5, or the pretrial release provisions generally, violate the clause. That is because, no matter how it is read, the bail clause plainly confers a right on criminal defendants only—that is, it establishes a constitutional floor, under which a defendant is entitled to be released at least upon furnishing monetary bail. […]

To start, the text and structure of the bail clause demonstrate that it confers rights on criminal defendants, not on law enforcement officers or on courts. … That the bail clause secures the rights of criminal defendants, and does not confer any entitlement on courts or law enforcement officers, defeats plaintiffs’ claims, no matter the scope of the right the clause confers. For one, it means that plaintiffs lack standing to advance a claim based on an alleged deprivation of rights under the bail clause. […]

B. Section 110-1.5 does not violate the crime victims’ rights clause. […]

First, plaintiffs lack standing to invoke the crime victims’ rights clause, because that clause grants rights only to crime victims, not to law enforcement officers like plaintiffs. […]

Second, and relatedly, the clause cannot be read to require a monetary bail system, as plaintiffs suggest and the circuit court held. See A16. The purpose of the clause, as this Court has explained, was to “serve as a shield to protect the rights of victims,” People v. Richardson, 196 Ill. 2d 225, 231 (2001) (cleaned up), not to enact sweeping changes to the State’s criminal justice system. But under plaintiffs’ account, even if the bail clause does not require the existence of a system of monetary bail, the crime victims’ rights clause independently has that exact same effect. Plaintiffs, in other words, contend that Illinois voters in 2014 agreed to amend the Constitution to mandate the existence of a monetary bail system under the auspices of a provision securing procedural rights to crime victims. But the drafters of proposed constitutional amendments, like legislators, do not “hide elephants in mouseholes,” and plaintiffs identify no evidence that the amendment was understood to make such a monumental change to the State’s criminal justice system. Indeed, courts have repeatedly rejected arguments that the clause made any substantive changes to the criminal justice system that exceed the narrow procedural rights given to crime victims by its plain text.

Finally, and in any event, section 110-1.5, and the pretrial release provisions more broadly, comply with the clause. The clause requires only that courts consider the safety of victims and their families “in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.” Ill. Const. art. I, § 8.1(a)(9). The pretrial release provisions do just that: They require a court to consider the “nature and seriousness of the real and present threat to the safety of any person or persons that would be posed by the defendant’s release,” including crime victims and their family members, “as required under” the Rights of Crime Victims and Witnesses Act. See 725 ILCS 5/110-5(a)(4). Consistent with the clause, the provisions also require the court to give notice to crime victims before holding a pretrial release hearing, before revoking a condition of pretrial release, and in a range of other contexts. See id. 5/110-5(a)(j); 5/110- 6(h); 5/110-6.1(m). The pretrial release provisions thus secure, rather than contravene, the rights guaranteed by the clause, in that they require the court to consider the safety of victims at every stage at which the court determines whether and on what conditions a defendant should be released. […]

The detention provisions do not violate separation-of- powers principles. […]

Although this Court in Hemingway recognized an inherent judicial authority to detain defendants pending trial, the Act’s detention provisions do not unduly infringe upon that authority by regulating the circumstances under which it may be exercised. And even if there were cases under which the detention provisions do infringe upon that authority, plaintiffs cannot show that they do so in every case, as their facial challenge requires. […]

The separation-of-powers clause provides that “[t]he legislative, executive, and judicial branches are separate,” such that “[n]o branch shall exercise powers properly belonging to another.” Ill. Const. art. II, § 1. But the clause “was not designed to achieve a complete divorce among the three branches of government; nor does it prescribe a division of governmental powers into rigid, mutually exclusive compartments.” […]

Hemingway, then, establishes that courts have an inherent authority to detain defendants pending trial under certain circumstances. But Hemingway did not hold, or even suggest, that the legislature was generally precluded from regulating courts’ exercise of that authority. To the contrary, the Court repeatedly emphasized with approval various ways that the Code of Criminal Procedure set out standards for courts to apply in achieving the “appropriate balance . . . between the right of an accused to be free on bail pending trial and the need of the public to be given necessary protection.” […]

In the decades since Hemingway, the General Assembly has repeatedly revised the section of the Code of Criminal Procedure that governs pretrial release, establishing detailed and comprehensive regulations for courts to apply in determining whether and on what conditions to release a defendant pending trial. Indeed, the legislature has amended section 110-5 of the Code over 20 times, setting out an increasingly detailed list of factors that courts are required to consider in “determining the amount of monetary bail or conditions of release” in any given case. […]

Indeed, were the circuit court correct, the bail provisions enacted in 1963 and applied without controversy for decades since would be unconstitutional en masse—a result that cannot be squared with common sense, history, or, for that matter, Hemingway itself, which discusses at length the importance of “the sections of the Code of Criminal Procedure” regulating pretrial release.


  1. - H-W - Thursday, Jan 26, 23 @ 2:39 pm:

    Good stuff here. Thanks for sharing this excerpt.

  2. - Norseman - Thursday, Jan 26, 23 @ 3:02 pm:

    Now this is how a rational brief is done. Plaintiff’s arguments were so weak, I’m betting on the SAFE-T Act getting ok’d by the SC.

  3. - JoanP - Thursday, Jan 26, 23 @ 3:43 pm:

    = Whether the Constitution prevents the General Assembly from enacting statutes governing the circumstances under which courts may detain individuals pending trial. […] =

    If that were the case, as the brief rightly points out, a significant portion of the Code of Criminal Procedure is unconstitutional. And yet in all my years practicing law, no one ever noticed that.

  4. - workingfromhome - Thursday, Jan 26, 23 @ 3:44 pm:

    Love the history lesson.

  5. - very old soil - Thursday, Jan 26, 23 @ 4:00 pm:

    But if we use the “in common use” test favored by SCOTUS and Todd, it is clear that bail means a tool to hurt poor people, especially people of color.

  6. - Lincoln Lad - Thursday, Jan 26, 23 @ 5:03 pm:

    I hope the AG ran this argument by Sheriff Mendrick first…

  7. - Original Anon - Thursday, Jan 26, 23 @ 8:46 pm:

    It doesn’t seem like it should take 59 pages to explain why the lower court was wrong. First time I came across Hemingway case, I wondered how the state Supreme Court had inherent authority to do something not otherwise permitted by the state constitution. This actually explains why it was done at least.

Sorry, comments for this post are now closed.

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