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Supreme Court justices spar with lawyers during SAFE-T Act hearing

Tuesday, Mar 14, 2023 - Posted by Rich Miller

* Associated Press account of today’s Illinois Supreme Court hearing on the SAFE-T Act

[Jim Rowe, the state’s attorney for Kankakee County] faced several questions about whether prosecutors and sheriffs have legal standing to bring the case.

* Please pardon all transcription errors, but here’s an excerpt of SA Rowe’s opening arguments

Rowe: I’m the state’s attorney for Kankakee County and my oath in the interest of public safety compel me to contest the defendants’ Act in this regard.

Chief Justice Mary Jane Theis quickly interrupted to point out that a party only has standing to challenge the constitutionality of a statute “only insofar as it adversely impacts his or her own rights.” So, she asked, where’s your standing?

Rowe: Your honor, with regard to standing, plaintiffs - sheriffs, state’s attorneys - are absolutely proper parties to this litigation. Each of us - your honors, the sheriffs as well - we have all raised our right hand and we have sworn a duty to uphold and defend the constitution of the state of Illinois.

Justice Theis then reminded Rowe about the actual oath that they both took

I do solemnly swear (affirm) that I will support the Constitution of the United States, and the Constitution of the State of Illinois…

Emphasis added, and this explains why

Theis: Wasn’t the language prescribed in the statute that we support the Constitution of the United States and the Constitution of the State of Illinois? And isn’t that the same oath that every lawyer, every person who comes to be admitted into the bar of Illinois under the Attorneys Act takes the same oath? So are you saying that everyone, every lawyer in the state of Illinois has standing to challenge a statute they don’t like?

Rowe: I’m not arguing that, your honor. I’m saying that state’s attorneys and sheriffs stand in a very unique position. For instance, state’s attorneys are the only ones that can go into a courtroom and file a petition under the Defendants Act to deny bail to someone.

Theis: Isn’t that true now?

Rowe: That is true, your honor. Except in this instance, we would be asked to enforce a rule that plaintiffs believe is unconstitutional. I think under Lujan, this court found that if we are regulated by the Act, we are a proper party to that litigation. And plaintiff state’s attorneys and sheriffs are certainly regulated under that Act.

Theis: There’s an adverse impact on your rights, is that it?

Rowe: There absolutely is. As the circuit court found, state’s attorneys, prosecutors have an inherent interest in ensuring that we can move cases through the court system, that we can secure a defendant’s appearance at trial, the sheriff has an inherent interest to…

Theis: Why don’t you continue to have that right? A constitutional right, I’m not sure what. You say you have a right to ensure that defendants appear or to continue to appear. Doesn’t that continue under this Act?

Rowe: Well, the Act abolishes the opportunity for a state’s attorney to even request a monetary bail as a sufficient surety. And for the sheriff, the sheriff has to ensure effectively the safety of every law enforcement officer under his charge. This Act requires them to serve, for instance, notice to appear and then a warrant and two occasions, we’ve now doubled the number of instances where law enforcement is going to come into contact with perhaps a fugitive or a very dangerous individual. So plaintiffs squarely believe that prosecutors and sheriffs have standing to pursue these matters. And we further believe that the Act is unconstitutional.

It goes on, but you get the drift.

* OK, back to the AP

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.

Chief Justice Theis quoted from a statute that has been around for many years, “In determining the amount of monetary bail or conditions of release, the court shall take into account” and noted that it then goes on to list 36 different factors that the court must consider

Theis: Isn’t that statute unconstitutional, because it interferes with the court’s inherent authority to determine sufficient surety?

Spellberg: No, your honor, it’s not, because while the legislature has listed a series of factors to be considered…

Theis: Shall be considered. [Cross talk] Dictated. The court must take, shall take into consideration these factors. Isn’t that the legislature working with, or maybe interfering with the court’s…

Spellberg: Your honor, I respectfully disagree. And the reason why is because even though the legislature has mandated that certain factors should be considered, absolutely, it has not mandated the outcome, has not mandated the determination that should be made after the consideration of those factors.

In summary, the state’s lawyer, Deputy Solicitor General Alex Hemmer, said he believed Chief Justice Theis’ question was “exactly right”

Plaintiffs’ argument, if accepted, would bring down not only the pretrial release provisions enacted by the SAFE-T Act, but also the entire scaffolding of legislative regulation of pretrial release in Illinois that’s existed for 60 years before the SAFE-T Act’s enactment. Plaintiffs have no effective response to that.

* One other point. Justice Lisa Holder White pointed out that in a “facial challenge,” the plaintiffs must “demonstrate that there is no set of circumstances that this would be constitutional.” She then asked if they’d done that. Spellberg’s answer was no yes, but then went on to say that the court had never before applied that demand to a separation of powers case.

Hemmer, the state’s lawyer, argued that “plaintiffs have not come anywhere close to meeting their burden”

They admit that none of those cases establishes the exception that they are seeking. And in most of these cases, the issue simply wasn’t raised. And so there’s no reason to read these cases’ silence as kind of a precedent that establishes a separation of powers exception to the ordinary rule.


…Adding… Capitol News Illinois

But opponents argued the constitution’s mentions of “bail” essentially serve as a requirement that the state maintains a system of monetary bail.

In particular, the prosecutors argued that the Crime Victims’ Bill of Rights was brought to voters as a constitutional amendment in 2014, which was the proper avenue for such a change.

Kankakee County State’s Attorney James Rowe argued that lawmakers put amendments to the voters in the 1980s when looking to expand the list of nonbailable offenses in the constitution. He contrasted that effort with the January 2021 passage of the SAFE-T Act which moved quickly through the legislature and came for a vote in the middle of the night.

Hemmer countered that the constitution has multiple references to institutions that no longer exist.

“The bail clause itself refers to capital offenses, but there are no more capital offenses in Illinois,” he said. “No one would argue, I think, that the bail clause requires the state to maintain capital offenses simply by referring to it and the same is true here.”


  1. - Candy Dogood - Tuesday, Mar 14, 23 @ 1:48 pm:

    This is like watching a child lose an argument over whether or not they have brushed their teeth when they are presented with their dry toothbrush.

    Some of these counties would be better served by electing someone that knows enough about the law to avoid embarrassing themselves so completely in our State’s highest court.

  2. - Norseman - Tuesday, Mar 14, 23 @ 1:48 pm:

    Good rundown of the hearing. I missed Hemming’s opening presentation but heard the rest of them. I was unimpressed with plaintiffs’ arguments. It appeared the justices weren’t as well.

    I’ll put my chips on lower courts getting overruled.

    Now rule quickly so we can get to overruling the ridicules gun ban rulings.

  3. - Demoralized - Tuesday, Mar 14, 23 @ 1:52 pm:

    ==Except in this instance, we would be asked to enforce a rule that plaintiffs believe is unconstitutional.==

    Except that’s not your role Mr. State’s Attorney. That’s why you’re standing in front of the justices of the Illinois Supreme Court. They tell you what is and isn’t constitutional. You’re there to enforce the laws as they are written, not how you would like them to be written

  4. - Arsenal - Tuesday, Mar 14, 23 @ 1:52 pm:

    If these excerpts are representative of the hearing as a whole, the challengers are in trouble.

  5. - JS Mill - Tuesday, Mar 14, 23 @ 2:06 pm:

    So we THINK it is unconstitutional but offer no evidence to that effect.

    Classic jurisprudence. I am thinking some of these folks should request debt forgiveness of their law school loans.

  6. - Give Me A Break - Tuesday, Mar 14, 23 @ 2:08 pm:

    But, but, but, the boys down at the grain elevator and local greasy spoon all agree I’m right.

  7. - Jocko - Tuesday, Mar 14, 23 @ 2:13 pm:

    I wish Spellberg and Rowe would just channel their inner Helen Lovejoy and ask, “Won’t somebody think of the prison industrial complex?

  8. - TheInvisibleMan - Tuesday, Mar 14, 23 @ 2:17 pm:

    –Plaintiffs have no effective response to that.–

    I’ve seen better pro se cases than what these SA’s have filed.

    All of these SAs are starting to get a taste of the world outside of the small kingdoms they’ve appointed for themselves.

    It’s going to get far worse for them when electronic monitoring gets brought up.

  9. - chitruth - Tuesday, Mar 14, 23 @ 2:19 pm:

    Hardly surprising, given the Court’s ideological composition. But regardless of whether the Act is constitutional, if it goes into effect, crimes committed by those released onto the streets will go up by some unknown percentage, as as happened in a few other jurisdictions.

  10. - Lucky Pierre - Tuesday, Mar 14, 23 @ 2:20 pm:

    Counting chickens before they hatch is never a good idea

  11. - Appears - Tuesday, Mar 14, 23 @ 2:24 pm:

    If the Act is constitutional then some who are currently granted bail following arrest for serious crimes and then go on to commit other crimes (since most only have to put down a 10% payment on their bail), would be denied release from jail until trial.

  12. - Not So Innocent Bystander - Tuesday, Mar 14, 23 @ 2:27 pm:

    I watched the video, and Spellberg actually told Justice Holder White that “Yes” the plaintiffs had established that the statute was facially unconstitutional in all instances, but that under the court’s case law it was not actually necessary to do so as part of a separation of powers analysis

  13. - TheInvisibleMan - Tuesday, Mar 14, 23 @ 2:28 pm:

    –crimes committed by those released onto the streets will go up by some unknown percentage–

    negative 10 is an unknown percentage. Is that the number you were looking for?

  14. - Big Dipper - Tuesday, Mar 14, 23 @ 2:33 pm:

    It’s scary how many prosecutors know so little about the law.

    LP, we’ll come back to your wisdom when the decision is released.

  15. - Bourbon Street - Tuesday, Mar 14, 23 @ 2:35 pm:

    A ruling by the Illinois Supreme Court that the plaintiffs lack standing would not resolve the issue of the constitutionality of the elimination of cash bail provisions of the statute. Such a ruling would probably indicate that those who do have standing are criminal defendants because their rights are affected. If that’s the case, then we will be waiting for a ruling on the constitutionality of the statute for a while because the provisions need to take effect before a criminal defendant can challenge the statute.

  16. - We’ll See - Tuesday, Mar 14, 23 @ 2:35 pm:

    Maybe Rowe could’ve gained a bit more traction if he simply stated that Don Harmon trounced him in a 2006 race and his feelings are still hurt.

  17. - Former Downstater - Tuesday, Mar 14, 23 @ 2:36 pm:

    Prediction: Court rules Plaintiffs don’t have standing. Remands the case for dismissal based on this. Does not rule on the constitutional aspects.

    As a result, we will do this all over again when someone denied bail under the new laws sues.

  18. - Big Dipper - Tuesday, Mar 14, 23 @ 2:36 pm:

    Also, Spellberg had a public falling out with his former boss Kim Foxx and she supports the SAFE-T Act so this seems personal.

  19. - Red Ketcher - Tuesday, Mar 14, 23 @ 2:45 pm:

    Monetary impact, unargued, but a motivator for challenging the Act.
    Cash Bail application is a prime way Counties collect fines, fees, and Court Costs.
    County Boards worried about how to pay for the system. Sheriffs and State’s Attorneys react and can show, win or lose , they tried .

  20. - Just Me 2 - Tuesday, Mar 14, 23 @ 2:49 pm:

    Thanks for a great post. I learned a lot reading it. Stupid question here - if prosecutors do not have standing then who does?

  21. - Big Dipper - Tuesday, Mar 14, 23 @ 2:52 pm:

    ==because the provisions need to take effect before a criminal defendant can challenge the statute.==

    You think a defendant is going to argue that a judge was wrong to release him without requiring bail?

  22. - Arsenal - Tuesday, Mar 14, 23 @ 2:53 pm:

    ==Such a ruling would probably indicate that those who do have standing are criminal defendants because their rights are affected.==

    Probably not, because your rights can’t just be “affected”, you actually have to have lost something that a court can either return to you or give you money to compensate for.

    ==someone denied bail under the new laws sues==

    How is that someone going to prove that they would’ve been granted bail under the old law?

  23. - Donnie Elgin - Tuesday, Mar 14, 23 @ 2:53 pm:

    Assuming the act is upheld and put into place, this has the potential to be a legal win but a long-term political loss. The Dems will own the “No Bail” ground.

  24. - BCOSEC - Tuesday, Mar 14, 23 @ 2:55 pm:

    The oral arguments are on the Illinois Supreme Court’s website. About 50 minutes total. Probably better to watch the whole thing than to just discuss a few snippets.

  25. - Arsenal - Tuesday, Mar 14, 23 @ 2:58 pm:

    ==You think a defendant is going to argue that a judge was wrong to release him without requiring bail?==

    Presumably we’re talking about someone who is jailed pending trial under the SAFE-T Act, but since the terms who can be held pending trial line up very closely with the Constitution…well, as the President says, “Good luck in your senior year.”

    Also, just imagine the cognitive whiplash on that, the law-and-order types would have to get behind someone arguing that they should be released, lol.

  26. - JB13 - Tuesday, Mar 14, 23 @ 3:18 pm:


    “The state constitution requires bail.. ”

    “Yes, but we define what “bail” means…”

    “Excellent point, Mr. Solicitor General”

  27. - Candy Dogood - Tuesday, Mar 14, 23 @ 5:25 pm:

    ===The Dems will own the “No Bail” ground.===

    The status quo in Illinois for many years has been people who couldn’t afford bail would sit in jail until their court date. Removing cash bail from the process would result in States attorneys needing to actually decide whether or not an accused individual actually poses an immediate risk to their community, etc, and should not be released rather than making it socioeconomic issue.

    At some point someone will also use the court data to demonstrate that certain prosecutors are wildly racist in their approach to holding defendants which will result in a new judicial standard where instead of letting rich criminals out of jail where they can theoretically re-offend, it will be based off of the crime that is committed.

    Our society wasn’t founded on a principle that an accused rapist with money is a better person than an accused rapist without money. That’s just been how our principles have been applied. Republicans hoping that this program will cause a crime wave that they can win elections on are wasting their time.

    I hope they hold their breath.

    The Chicago Police have already intentionally reduced the quality of their policing in response to public demands that they stop murdering people. With an end to cash bail families and careers won’t be destroyed before the state has been required to meet a minimum burden of proof.

    We live in a state where prosecutors used to frame people as a matter of practice in order to win re-election to such an extent that so many innocent people were on death row we had to stop executions. Now prosecutors are trying to prevent our judicial system from making it so that they can’t keep people locked up for months and years without any due process or without any compelling evidence of their guilt.

    The States Attorneys who brought this case and who want to keep cash bail every bit as bad as George Wallace in their efforts to defend a judicial system that has harmed so many people. When they lose this case I hope they will find the public decency to resign or announce they will not run again.

    They are on the wrong side of justice. They are on the wrong side of history. They are on the wrong side of the law.

    They are an embarrassment to their profession. These Horace Gilmers are undeserving of the public trust.

  28. - Bourbon Street - Tuesday, Mar 14, 23 @ 7:43 pm:


    If the ILSC rules that the prosecutors and the sheriffs don’t have standing, then someone has to have it. The logical answer to that is the criminal defendants, specifically, those who are held under the SAFE-T Act.

  29. - Annon3 - Wednesday, Mar 15, 23 @ 8:29 am:

    Red Ketcher nailed it, the fines collected pay for the local court system and the interest earned on those accounts goes into the county general revenue fund. It’s about the money.

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