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* Illinois Supreme Court Chief Justice Mary Jane Theis began the court’s SAFE-T Act ruling by pointing out the obvious: The top court itself was originally behind the move to eliminate cash bail…
In 2017, this court established the Illinois Supreme Court Commission on Pretrial Practices (Commission) and charged it with “conducting a comprehensive review of the State’s pretrial detention system” and with making recommendations on potential reforms to that system. Ill. S. Ct. Comm’n on Pretrial Practices, Preliminary Report 4 (2018), [https://perma.cc/S8VA-83S9]. In 2020, the Commission issued its final report, listing more than 50 recommendations to reform pretrial practices to “ensure defendants are not denied liberty solely due to their inability to financially secure their release from custody.” Ill. S. Ct. Comm’n on Pretrial Practices, Final Report 22 (2020), [https://perma.cc/Y4FU-GJKL]. The Commission observed that the General Assembly bore responsibility to amend the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/100-1 et seq. (West 2020)) in that regard, and it urged the legislature to ensure that “conditions of release will be non- monetary, least restrictive, and considerate of the financial ability of the accused.” Ill. S. Ct. Comm’n on Pretrial Practices, Final Report 69 (2020).
The following year, such reform occurred. In 2021, the General Assembly passed, and the Governor signed, Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act.
That court commission was rarely mentioned outside of this website, but I thought it was central to the discussion because it explained why eliminating cash bail was within the legislature’s constitutional purview by defining it this way…
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.
* OK, on to the opinion. First up, standing. It’s doubtful that the sheriffs and state’s attorneys actually had standing to sue. But, the majority opinion notes a government brief…
Standing is typically a threshold determination, but this case is anything but typical. In its opening brief, the State referred to the “unusual circumstances of this case” and acknowledged “the public interest would be served by the adjudication of [the] plaintiffs’ claims on the merits.” We turn to those claims and their merits.
* To the meat. Cash bail..
The trial court agreed with the plaintiffs and held that the pretrial release provisions violate the bail clause, but the court’s reasoning is difficult to follow. The trial court acknowledged the defendants’ position that “the bail provision exists to confer a right on criminal defendants,” but it asserted the purpose of that provision is “much broader.” The court continued, “Bail exists, as it has for centuries, to balance a defendant’s rights with the requirements of the criminal justice system, assuring the defendant’s presence at trial, and the protection of the public.” Noting that the Act “eradicates monetary bail as a judicial consideration in every Illinois case,” the trial court concluded that, “under the Act, *** ‘persons are no longer bailable by sufficient sureties’ pursuant to the pretrial release provision of the Act because ‘sufficient sureties’ does involve monetary bail as one the conditions of bail which is abolished with the Act.”
We reject the trial court’s uneven reasoning for three reasons.
First, the trial court ignored the plain language of the constitution. The bail clause does not include the term “monetary,” so it did not cement the practice of monetary bail, however long-standing and prevalent across Illinois, into our constitution. “Sufficient sureties” is not limited to sufficient monetary sureties, and we cannot append or supplement the constitutional text.
Second, the trial court correctly recognized that the bail clause strikes a finely constructed balance between the interests of criminal defendants in pretrial release and the interest of the State “obtaining the greatest possible assurance” that the defendant will appear for trial (People ex rel. Gendron v. Ingram, 34 Ill. 2d 623, 626 (1966)), as well as the State’s interest in public safety, but the court incorrectly assumed that abolishing monetary bail undermines the State’s interests. The court appeared to believe that monetary bail is the only way to assure a defendant’s presence and to protect the public. In doing so, the court elevated the system of monetary bail over the plain language of the bail clause. While the clause establishes an individual constitutional right to bail, that right is not absolute (see Hemingway, 60 Ill. 2d at 80) but conditioned by “sufficient sureties” and, more importantly, by exceptions intended to keep the most serious, and potentially dangerous, offenders in custody after a hearing to establish they pose a real and present threat.
The Act’s pretrial release provisions complement the bail clause in that regard by allowing the State to seek, and the trial court to order, pretrial detention of certain criminal defendants. See 725 ILCS 5/110-2, 110-6.1 (West 2022). The Act requires the 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.”
Third and relatedly, the trial court misapprehended what the drafters of the bail clause actually did. The drafters consciously chose to leave the clause largely identical to the 1870 Constitution, which was largely identical to the original 1818 Constitution. See 1 Record of Proceedings, Sixth Illinois Constitutional Convention 699 (describing the current bail clause as a “minor rephrasing” of the 1870 version, leaving “[t]he substance *** unchanged”). Thus, the historical antecedent for the meaning of “bailable by sufficient sureties” is the meaning of bail in 1818.
As the State correctly observes, “monetary bail was all but unknown at the time the 1818 Constitution was drafted.” A dictionary published that year defined bail as “the freeing or setting at liberty one arrested or imprisoned *** under security taken for his appearance” but did not mention money as the sole or even primary means of providing that security. Monetary bail emerged later in the mid-to-late nineteenth century.
The drafters were cognizant of the legislature’s foray into that area, which included section 110-8 of the Code and outlawed professional suretyship by bail bondsmen. The drafters clearly understood that Illinois’s approach to pretrial release had evolved since the State was established and clearly understood that approach would continue to evolve, and they used language that would allow that. Delegate Bernard Weisberg offered a minority proposal that would have allowed all criminal defendants to remain at large until convicted, unless there was a judicial determination that confinement or bail was necessary to assure a defendant’s presence at trial. That proposal was ultimately rejected […]
Legislative latitude in regulating pretrial release, thus, was a fundamental underpinning of the bail clause. The legislature has once again engaged in the process of bail reform, and its efforts are consistent with the drafters’ intent. The plaintiffs’ bail clause claim fails
* Regarding the Crime Victims’ Rights Clause of the Illinois Constitution…
Count IV of the plaintiffs’ first amended complaint alleges that the pretrial release provisions violate the crime victims’ rights clause. Initially adopted in 1992 and since amended, article I, section 8.1, of the Illinois Constitution sets out the constitutional rights of crime victims in Illinois and now includes 12 explicitly defined “rights” that crime victims “shall” have. Ill. Const. 1970, art. I, § 8.1. The crime victims’ enumerated rights include, inter alia, “[t]he right to have the safety of the victim and the victim’s family considered in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.”
The trial court agreed with the plaintiffs. The court stated that “the plain reading” of “fixing the amount of bail *** clearly refers to the requirement that the court consider victims’ right in the setting of the amount of monetary bail.” The trial court continued that, by removing that method of ensuring victims’ safety, the legislature improperly removed the discretion constitutionally given a trial court by the clause. According to the trial court, the Act leaves a court with no “amount of bail” to fix, impairing its ability to protect victims and their families.
We reject the trial court’s reasoning for three reasons.
First, the trial court again ignored the plain language of the constitution. The crime victims’ rights clause mentions the “amount of bail,” not the amount of monetary bail. The word “amount” connotes quantity and does not only mean a quantity of money but rather, consonant with the bail clause, a quantity of sufficient sureties.
Second, the trial court appeared to forget that the pretrial release provisions of the Act expressly take crime victims into account. As we have already mentioned, those provisions 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. 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. Thus, the pretrial release provisions 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.
Third, the trial court failed to grasp that, like the bail clause, the crime victims’ rights clause is part of the bill of rights. Both are equally important and work in concert. The bail clause concerns the individual rights of criminal defendants, but in its “real and present threat” exception, it acknowledges the State’s interest in public safety. The crime victims’ rights clause, initially adopted in 1992, not only bolstered that interest but created a new and watershed structure of individual rights for crime victims. The latter clause was adopted with only one focus, victims. We believe that it would dilute the purpose of that clause to hold that it had another, tangential purpose—namely, to mandate a system of monetary bail for criminal defendants across Illinois. Nothing in the crime victims’ rights clause’s plain language indicates such an intent to upend suddenly, after 174 years, the constitutional history of bail in Illinois.
* Separation of powers…
Count V of the plaintiffs’ first amended complaint alleges that the pretrial release provisions of the Act violate the separation of powers clause. Article II, section 1, of the Illinois Constitution provides, “The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.”
The trial court agreed with the plaintiffs. According to the trial court, this court has held that the legislature is expressly prohibited from exercising judicial power, and statutes that undermine traditional and inherent judicial roles violate separation of powers. Relying upon Hemingway, 60 Ill. 2d at 79, the trial court concluded that the authority to deny or revoke bail to preserve the orderly process of criminal procedure is an administrative matter inherently entrusted solely to the courts. The trial court added that, by encroaching on that authority in abolishing monetary bail, the legislature violated the separation of powers clause.
We reject the trial court’s reasoning and, particularly, its overreading of Hemingway. […]
Our conclusion is consistent with other areas of criminal procedure. For example, this court has held that sentencing is exclusively a judicial function but has also held that “ ‘the legislature may restrict the exercise of judicial discretion in sentencing, such as by providing for mandatory sentences’ ” The plaintiffs’ separation of powers claim fails.
* Conclusion…
The Illinois Constitution of 1970 does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public. Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims. The Act’s pretrial release provisions set forth procedures commensurate with that balance. For the reasons that we have stated, we reverse the circuit court’s decision to grant summary judgment in favor of plaintiffs.
On December 31, 2022, this court granted a supervisory order staying the effect of pretrial release provisions in Public Acts 101-652 and 102-1104, along with various amendments to Illinois Supreme Court rules that facilitated the implementation of those provisions. See People ex rel. Berlin v. Pritzker, No. 129249 (Ill. Dec. 31, 2022) (supervisory order). Sixty days after the filing of this opinion, on September 18, 2023, this court’s stay of pretrial release provisions in Public Acts 101-652 and 102-1104 shall be vacated. On that date, the circuit courts are directed to conduct hearings consistent with Public Acts 101-652 and 102-1104, and Illinois Supreme Court Rules implementing those pretrial release provisions shall become effective.
Justice Mary K. O’Brien concurred and wrote about the standing issue.
* Justice David K. Overstreet also addressed the standing issue, but ultimately concluded that the statute violates the Crime Victims’ Rights clause. Justice Lisa Holder White concurred.
In the end, it was 5-2. A partisan split.
I often point out that three numbers are paramount to getting anything done: 60, 30 and 1; majorities in the legislative branch and the governor’s signature. Add to that the number 4, which is a majority of the Supreme Court.
posted by Rich Miller
Tuesday, Jul 18, 23 @ 9:56 am
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It is always fun to watch the “conservatives” flee from Original Intent when it does not suit them.
They believe that “Original Intent” started in 1963 when Illinois adopted the Criminal Code, not in 1818 when the first state Constitution was adopted, its Bail Clause put in place, and 50 years before cash bail even existed.
As the Court noted, Illinois has had ample opportunity to insert the word “monetary” into the Bail Clause and never did.
It’s a well reasoned opinion.
Comment by Thomas Paine Tuesday, Jul 18, 23 @ 10:14 am
O’Brien actually said the opposite but with a lot of negatives, so it was a bit confusing. See ¶ 62, “Accordingly, I cannot say that defendants have carried their burden of proving plaintiffs’ lack of standing.”
Comment by the 647 Tuesday, Jul 18, 23 @ 10:18 am
== That court commission was rarely mentioned outside of this website, but I thought it was central to the discussion because it explained why eliminating cash bail was within the legislature’s constitutional purview ==
Rich, you are right on point. The commission spent a long time and went to great lengths to review the law and prepare documents that lay out the processes and procedures for the state. They have dozens of documents and held a bunch of hearings and seminars.
Comment by on point Tuesday, Jul 18, 23 @ 10:31 am
Veto, the legislature will need to figure out how to make this work fiscally.
Comment by Holding Back Tuesday, Jul 18, 23 @ 10:34 am
Camera cuts to Oswego Wily solemnly adding “4″ to his usual “60, 30, 1″ comment
Comment by historic day Tuesday, Jul 18, 23 @ 10:34 am
===Camera cuts to===
I’ve tried to avoid cameras… plus I can’t think of a soul that would wanna watch me do anything.
You could try to comment on the post…
Comment by Oswego Willy Tuesday, Jul 18, 23 @ 10:37 am
===how to make this work fiscally.===
Why, because of the practices of some jurisdictions?
Please explain outside a sentence, for clarity.
If the point is that the fiscal well-being is predicated on the necessity of bail…
Comment by Oswego Willy Tuesday, Jul 18, 23 @ 10:48 am
So,they want a strict adherence to the Constitution.
Looks like 5 judges said “Ok,here you go.”.
Comment by btowntruth from forgottonia Tuesday, Jul 18, 23 @ 10:51 am
Who knew “Originalism” was “Woke” ?? /s
Comment by Anyone Remember Tuesday, Jul 18, 23 @ 10:57 am
===So,they want a strict adherence to the Constitution.===
Overstreet’s analysis (aside from the standing issue) focuses almost solely on the meaning of the word “amount” in a constitutional amendment. Talk about parsing.
Comment by Rich Miller Tuesday, Jul 18, 23 @ 11:10 am
Like it or not, the majority of court system relies on cash bond to run the court system. The legislature will need to figure out another funding mechanism.
Comment by Holding Back Tuesday, Jul 18, 23 @ 11:28 am
===the majority of court system relies on cash bond to run the court system. The legislature…===
Don’t you mean local taxes? Start there, then go to the legislature?
How much more money do small counties need from “She-Caw-Go” and Cook, DuPage…
Unless you’re saying smaller counties are getting monies already from “She-Caw-Go” and not the other way around.
Comment by Oswego Willy Tuesday, Jul 18, 23 @ 11:31 am
=The legislature will need to figure out another funding mechanism.=
The county court will need to figure something out of that is really the case. It isn’t the states problem. These counties can always raise revenue through their levy, but then they can’t dry about taxes anymore.
Comment by JS Mill Tuesday, Jul 18, 23 @ 11:33 am
Wasn’t the argument that bail is about safety, not about funding courts?
I don’t recall any ad that talked about funding, only about safety.
Comment by Oswego Willy Tuesday, Jul 18, 23 @ 11:35 am
I actually learned something from Proft. He used “kakistocratic” in his tweet. It was…quaint (I’m not as good with words).
Comment by Proud Sucker Tuesday, Jul 18, 23 @ 11:45 am
Cook County eliminated cash bond before this. Somehow the courts are still running. If Cook county can fund its courts seems like other counties can, too. I mean, if those counties actually believe that the need to have a court system exceeds the need to have lower taxes.
Comment by cermak_rd Tuesday, Jul 18, 23 @ 11:51 am
==Cook County eliminated cash bond before this.==
That would have been nice, if true
Comment by Stephanie Kollmann Tuesday, Jul 18, 23 @ 12:05 pm
It’s doubtful that the sheriffs and state’s attorneys actually had standing to sue.
Not sure this is correct. The majority punted on this issue but the dissent pretty clearly identifies strong precedent that the SA’s do indeed have standing.
Comment by Wut Tuesday, Jul 18, 23 @ 12:26 pm
==That would have been nice, if true==.
Its not?
Comment by low level Tuesday, Jul 18, 23 @ 12:32 pm
===Its not? ===
The county did, in fact, do so at the end of 2022 https://www.wbez.org/stories/cook-county-ending-cash-bail-sunday-despite-ruling/d229ba0c-a33b-414b-b2c8-125d24d5b090
Comment by Rich Miller Tuesday, Jul 18, 23 @ 12:35 pm
===It’s doubtful that the sheriffs and state’s attorneys actually had standing to sue.
Not sure this is correct.===
Isn’t this a moot point now?
Comment by Oswego Willy Tuesday, Jul 18, 23 @ 12:36 pm
The Court is correct. This is obviously Constitutional. Is it good policy? This needs to be monitored and reevaluated after a year and then subsequently as well. Hopefully (but I doubt it) the politics can be taken out of it and its positive or negative effects honestly evaluated.
Comment by unafraid Tuesday, Jul 18, 23 @ 1:15 pm
Hi Rich, that story was about Cook County’s intent to move forward. But then the Court issued a statewide stay to prevent different laws in different jurisdictions pending this decision. Cash bail will end in Cook County when it does in the rest of the state, in September
In the meantime, people have very much been receiving money bonds, some of which are unaffordable (despite a court rule to the contrary) and resulting in detention due to lack of funds.
Comment by Stephanie Kollmann Tuesday, Jul 18, 23 @ 2:00 pm
Story on stay:
https://abc7chicago.com/illinois-supreme-court-pre-trial-fairness-act-no-cash-bail-safe-t/12635593/
Comment by Stephanie Kollmann Tuesday, Jul 18, 23 @ 2:01 pm
Example of $400k bond
https://abc7chicago.com/miraj-nightclub-shooting-in-niles-illinois-mark-asber-alan-kettina/13184624/
Comment by Stephanie Kollmann Tuesday, Jul 18, 23 @ 2:02 pm
Stephanie is right. Should never have doubted her
Cook County Resumes Implementation of the Pretrial Fairness Act and Ending Money Bond
Comment by Rich Miller Tuesday, Jul 18, 23 @ 2:35 pm
Isn’t this a moot point now?
Sure. As to this case. But going forward, it is pleasant to read that SA’s retain the right to challenge laws the see as unconstitutional. That’s the process. They were a proper party. And they lost.
Comment by Wut Tuesday, Jul 18, 23 @ 2:53 pm
===Sure. As to this case.===
That’s all that matters… in this case.
Comment by Oswego Willy Tuesday, Jul 18, 23 @ 2:55 pm
=== Example of $400k bond ===
So in the case that resulted in a $400k bond, what would have happened if the SAFE-T act was in effect is that the defendant would have been held without bond . This is a murder case.
Comment by Hannibal Lecter Tuesday, Jul 18, 23 @ 3:06 pm
===They were a proper party.===
If that’s what your think, I guess, but you also typed this…
===The majority punted===
So punted now means accepted?
Hmm.
Comment by Oswego Willy Tuesday, Jul 18, 23 @ 3:07 pm
The Court’s skipping over standing will be used by lawyers to argue for a broader view of standing in future cases - right up until an appellate court says no.
Comment by Original Anon Tuesday, Jul 18, 23 @ 3:45 pm
=== Veto, the legislature will need to figure out how to make this work fiscally. ===
Stop it. That is not how it works.
Opponents lost in the House, the Senate, the Governor’s Office, the statewide elections, and the Supreme Court.
They do not get to go to Public Safety Approp hearings now and demand millions to replace the gravy train.
In fact, the General Assembly ought to reply to any shake down effort by making grants available to sheriffs and state’s attorneys to reduce racial profiling and collect the thousands of unlawful guns out there. Plenty of work to be done.
When Republicans vote against the grant programs, Democrats can accuse them of voting to defund the police, wont that be fun?
Comment by McGruff Tuesday, Jul 18, 23 @ 3:56 pm
If they wanted to kill standing they could have. Hmmmm
Comment by Wut Wednesday, Jul 19, 23 @ 10:39 am
===If===
It was moot.
When you have the constitution as the rationale, the rest is… well, the rest.
That’s what the ruling was about, no?
Comment by Oswego Willy Wednesday, Jul 19, 23 @ 10:42 am