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* From the Illinois Constitution…
All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person.
That passage is at the heart of the state’s attorneys’ lawsuit challenging the SAFE-T Act’s constitutionality…
Lawyers for the sheriffs and prosecutors have insisted in their briefs that, “The Illinois Constitution interprets bail, at its core, to include a monetary amount that, though it may take different forms, cannot be abolished altogether without running afoul of the Constitution.”
State lawyers say their opponents have misread the document. Lawmakers sought to clarify things earlier this month, changing the law to note that the “sureties” at issue are meant to be “nonmonetary in nature.”
Still, that doesn’t change the meaning “in the Constitution itself,” the opponents noted in their new brief. […]
“It doesn’t have to be money,” said [Ann Lousin, a professor of law at University of Illinois Chicago Law School who lectures and consults on the Illinois constitution], who also worked on the drafting of the 1970 state constitution. […]
Whether these questions are even hashed out before Cunnington remains to be seen. State lawyers argue the judge shouldn’t consider the sureties question on its merits. They argue that the constitution’s “sufficient sureties” requirement is a right bestowed on criminal defendants — meaning prosecutors and sheriffs can’t claim it as a violated right of their own.
* As I’ve told you before, the Illinois Supreme Court’s Commission on Pretrial Practices defined bail this way in its final report…
Bail: The process of releasing a defendant from custody with conditions set to reasonably assure public safety and court appearance. […]
“Bail” is often used to refer to the amount of cash that a defendant must post as a condition of release. “Bond” is sometimes treated as a synonym of “bail.” Understood properly, “bail” – which literally means, “release” – is a process of releasing a defendant from custody on conditions designed to assure both public safety and the person’s appearance in court. A “bond” occurs whenever a defendant enters an agreement with the court. The agreement may, but need not necessarily, include a financial condition, but can also or instead include a variety of other conditions such as electronic monitoring, curfews, supervised visits or appointments, etc.
posted by Rich Miller
Tuesday, Dec 13, 22 @ 1:51 pm
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How would prosecutors have standing to argue that eliminating bail would harm criminal defendants? It just seems like grasping at straws. First we heard that the law was not tough enough on crime and now it’s too tough?
Comment by Big Dipper Tuesday, Dec 13, 22 @ 1:56 pm
“As I’ve told you before, the Illinois Supreme Court’s Commission on Pretrial Practices”
Commissions even ones convened by the Illinois Supreme Court are regulatory in nature. They do not carry the weight of determining blackletter law that legislation would, nor do they carry precedence that a decided Supreme Court case would. The key here would be what is/was the meaning of the word “sureties” in relation to bail at the time of the 1970 Constitution.
Comment by Donnie Elgin Tuesday, Dec 13, 22 @ 2:12 pm
The police and prosecutors don’t want their ill-gotten, bail bond windfall to go away.
Unfortunately for them, Section 9 of the Illinois Construction explicitly grants rights to the accused, not to cops and SAs.
If the cops and SAs believe they have a constitutional right to their bail bond gravy-train, they’ll have to find it elsewhere.
– MrJM
Comment by @misterjayem Tuesday, Dec 13, 22 @ 2:12 pm
Pretty weak stuff by the State’s Attorneys.
Comment by charles in charge Tuesday, Dec 13, 22 @ 2:13 pm
Excessively proud SA’s wasting their respective county’s time and resources.
Comment by NIU Grad Tuesday, Dec 13, 22 @ 2:16 pm
So bail means release. So why didn’t the constitution say release when it said bail and vice versa. Unless the the constitution meant the language to be different. In the end it doesn’t matter. SCOTIL gonna do what SCOTIL gonna do.
Comment by Gfalkes Tuesday, Dec 13, 22 @ 2:18 pm
This may be a side issue, but in LaSalle County, one of the commonest arrests is failure to appear in court when scheduled.
While I agree with the idea that cash bail discriminates against the poor, if people are skipping court dates now, what will motivate them if cash bail is eliminated?
Comment by Streator Curmudgeon Tuesday, Dec 13, 22 @ 2:19 pm
so what was said during the Const.convention debate on sureties? what did they mean by sureties? anything said? and then there is the rest of the section on bail which sounds definitive on certain types of crime. the discussion of that would be illuminating.
Comment by Amalia Tuesday, Dec 13, 22 @ 2:21 pm
===Excessively proud SA’s wasting their respective county’s time and resources.
Especially after hearing how SAFE-T was going to make it impossible to keep up with the workload.
Comment by ArchPundit Tuesday, Dec 13, 22 @ 2:28 pm
I still can’t get past the admission by a state’s attorney that the bail question is largely about collections. Making defendants post cash before a trial means they can deduct fines before refunding the cash. And that’s why they want to lock up poor people.
Comment by Socially DIstant watcher Tuesday, Dec 13, 22 @ 2:28 pm
===the word “sureties” in relation to bail at the time of the 1970 Constitution===
And one of the top state constitutional experts gave you your answer, but you ignored it, as usual.
Comment by Rich Miller Tuesday, Dec 13, 22 @ 2:30 pm
“This may be a side issue, but in LaSalle County, one of the commonest arrests is failure to appear in court when scheduled.”
What percentage of those are traffic tickets?
Comment by Anyone Remember Tuesday, Dec 13, 22 @ 2:32 pm
===why didn’t the constitution say release when it said bail ===
Read: “bail” – which literally means, “release”
Comment by Rich Miller Tuesday, Dec 13, 22 @ 2:37 pm
“It claims lawmakers who passed the law violated a rule that requires them to read bills ‘on three different days’ in each legislative chamber.”
Think this is before my time in Illinois, but didn’t the Illinois Courts once refuse to invalidate statutory changes, refusing to say a “legislative day” was the same as a “24 hour day” ??
Comment by Anyone Remember Tuesday, Dec 13, 22 @ 3:01 pm
===why didn’t the constitution say release when it said bail ===
Also, that language carried over from the 1870 constitution, so that’s probably where to look for legislative history.
Comment by Anon Tuesday, Dec 13, 22 @ 3:35 pm
Don’t they teach children about ’synonyms’ no more?
– MrJM
Comment by @misterjayem Tuesday, Dec 13, 22 @ 3:50 pm
The wheels have already fallen off this lawsuit. After it was consolidated in October, it was first supposed to be decided on the claim for injunctive relief until the case was fully resolved, back in November. Then it was moved to the 1st week in December. Now the start has been moved to the 3rd week in December. I haven’t looked at the amended filing yet, but there doesn’t even seem to be any mention of seeking injunctive relief(TRO) anymore.
It’s pretty clear none of the SAs bothered to think ahead to an outcome of what happens when they lose. The majority of SAs in the state are going to be told, by a court, that they do not understand the state constitution. In a rational world, that would be a problem for their continuing to work in that office.
Comment by TheInvisibleMan Tuesday, Dec 13, 22 @ 3:50 pm
That oh that darn pesky constitution…
Comment by rtov Tuesday, Dec 13, 22 @ 3:51 pm
Regarding “bail” v “release”:
Bail is a *conditional* release. Just like the definition sez:
“Releasing … with conditions”
They are not synonymous; rather one is a subset of the other.
Parole is also a form of release—why do we call it parole, instead of just “release”??
Also: think the states attorneys pushing that elision are pulling a 2A type gambit—reading out “by sufficient sureties” has the same energy as reading out “well-regulated militia”.
Comment by Chris Tuesday, Dec 13, 22 @ 4:42 pm
==Think this is before my time in Illinois, but didn’t the Illinois Courts once refuse to invalidate statutory changes, refusing to say a “legislative day” was the same as a “24 hour day” ??==
The bigger roadblock to the SAs and sheriffs is that Illinois follows the enrolled bill rule. SCOTIL has upheld that on numerous occasions. I do think a large amount of the ongoing litigation relates to the fact that the suit was filed pre-election, when there was a hope that the Court would be majority Republican and willing to overturn the act. But at this point, a lot of these arguments serve no purpose beyond a desire of politicians (and yes, SAs and sheriffs are politicians) to bolster their bona fides with their constituents.
Somewhat interestingly, and tying this with the original topic of “sureties,” is this passage from an article by Michael Kasper in the Loyola University Law Review on using Article IV to challenge laws as unconstitutional:
“Practitioners should note that these claims should be omitted from constitutional attacks on legislation because their inclusion betrays that the party bringing the challenge does not fully comprehend the enrolled bill rule and its effect. Thus, the inclusion of a three readings claim is likely to raise suspicion, if not skepticism, regarding other challenges…”
Comment by Anon324 Tuesday, Dec 13, 22 @ 4:44 pm
Well, that’s a bat-guano insane reading of the constitution. That would make it a constitutional violation to release anyone on their own recognizance.
Comment by duck duck goose Tuesday, Dec 13, 22 @ 4:48 pm
===This may be a side issue, but in LaSalle County, one of the commonest arrests is failure to appear in court when scheduled.
While I agree with the idea that cash bail discriminates against the poor, if people are skipping court dates now, what will motivate them if cash bail is eliminated?===
There is oodles of research on how to reduce rates of failures to appear. The notion that fear of losing their bond money is the primary motivation for people to appear in court is misplaced as is the idea that most people accused of a crime will fail to appear without it. People are far more likely to miss because they can’t afford to skip work, secure childcare, lack transportation, or simply don’t remember or understand their responsibilities.
The statewide office of pretrial services should help bring things like clearly-written summons and text message alerts about court dates to every circuit. Pretty simple fixes can yield big results.
https://urbanlabs.uchicago.edu/programs/effective-policies-reduce-the-harm-of-failure-to-appear-fta
https://www.ojp.gov/pdffiles1/nij/grants/234370.pdf
Comment by The Opinions Bureau Tuesday, Dec 13, 22 @ 4:51 pm
@Donnie Elgin
Your preference and that of the States Attorneys and Sheriffs is a far cry more removed from the parsimonious interpretation and spirit of the 1970 Illinois Constitution, than that of the Court’s commission. Nothing in the language of our state constitution leads anyone to conclude money was assumed. It just isn’t there.
The State’s Attorneys need to stop wasting County taxes (the source of their actual wages filling a frivolous case. I hope county residents everywhere remember this tantrum when we elect them.
Comment by H-W Tuesday, Dec 13, 22 @ 4:55 pm