Criminal law

The fate of bail reform in Illinois


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Update: On July 18, 2023, Illinois Supreme Court to rule That the pretrial release provisions of the SAFE-T Act that end the use of cash bail are constitutional and ordered to be implemented on September 18, 2023.

The Court held that the SAFE-T Act did not violate the bail clause of the Illinois Constitution or the Crime Victims’ Rights Clause because none of these provisions provide for the use of cash bail, unlike other release clauses. It also held that the SAFE-T did not violate Illinois’ separation of powers requirement because the legislature may regulate the state’s bail system—and has historically done so—without impermissibly encroaching on the power of the judiciary.

every day, Hundreds of thousands of people wait in prison for their cases to be heard by a judge or jury. Many of them are being held not because of any danger they pose, but because they cannot post bail. Several states have reformed their pretrial practices to eliminate this unnecessary detention, citing a growing body of evidence about how harmful it is. the peoplecommunities, and Public Safetywith disproportionate effect on people of color.

Illinois is one such state. Continuing a series of reforms that began in 2017, state lawmakers have passed the bill Safe-T RepresentIt was originally scheduled to go into full effect on January 1, 2023. The new batch of laws would overturn Cash bail and changing procedures to make it easier for people to live and work in their communities while awaiting trial. However, judges can still decide to detain people who are considered an escape risk or a danger to society. But in late 2022, a group of state attorneys and sheriffs challenged the law, and a Kankakee County judge challenged the order. is found That the parts that voided the cash bail in the vast majority of cases could not be enforced. The judge explained that because Illinois Constitution If bail is mentioned twice, any change in the meaning of “bail” must be made through a constitutional amendment. illinois Constitutional amendments are allowed through legislationBut only after following a strict set of rules and voting in the general election. None of these procedures are followed for the SAFE-T.

Illinois, represented by the state attorney general, appealed the decision. Now the Illinois Supreme Court has stepped in banned Implementation of bail provisions, leave thousands of people in prison and who was eligible for release. The court heard oral arguments on March 14 to consider whether the legislature had indeed acted outside its power. The session focused on two questions: Are the guarantee provisions valid laws or a convincing constitutional amendment? Are they violating the separation of powers clause of the Illinois Constitution by narrowing judicial options in decisions of release and pretrial detention?

Regardless of these substantive questions, the court has raised a procedural glitch that could end the case and allow the full law to take effect. People can only bring a lawsuit if they have “standing” – that is, if they have suffered or were liable to suffer a separate injury that is within the court’s power to compensate. Political objections to legislation are not given a general standing, because harm is not isolated.

The court sharply questioned whether the plaintiffs in the original lawsuit, which was brought by a coalition of attorneys and sheriffs led by Kankakee District Attorney James Rowe, had the power to bring this case. Among other things, Rowe said the state’s attorney’s job is to speak on behalf of crime victims, who could be harmed if the law goes into effect. The court seemed skeptical of his arguments. Without direct and apparent harm to the plaintiffs themselves, the case could simply be dismissed.

The court also raised another hurdle. This lawsuit is challenging “My Face”: an argument in There is no default example Can the law be constitutional? (By contrast, an appeal if applied means that the law is unconstitutional in a given context.) It is possible to file appeals before the law comes into force, but it is more difficult to prove them.

If the court does not decide the case on either of these two grounds, the substantive questions remain intertwined. In defense of the SAFE-T Act, Illinois Deputy Attorney General Alex Himer points out that the drafters of the original draft of the Illinois Constitution of 1818 did not understand “guarantee” to mean monetary Bail, which was not common practice until nearly a century later. As a result, rescinding the cash bail would not violate the language or intent of the Constitution. When the Constitution was rewritten in 1970, the drafters specifically debated whether or not to leave the Constitution Bail clause. It also would allow the state to cancel the cash bail in the future – and it concluded it would. Hemmer added, further, that the legislature has concurrent constitutional power to regulate pretrial proceedings, and has done so for at least 60 years.

But there is another mention of bail in the Constitution, added much later. In 2014, Illinois amended its constitution to add a problem A formula called “Marcy’s Law,” which is the result of a nationwide campaign to add provisions to state constitutions that give crime victims and their families input into judicial decisions. The relevant provision of the Illinois Constitution now requires judges to consider “the victim and the victim’s family…”. . . in denial or reform amount On bail” (emphasis added). Critics of SAFE-T say that language presupposes cash bail. But as Heimer points out, the Illinois Constitution also contains language about what to do in capital cases, and yet Illinois canceled The death penalty from a legislative point of view more than a a decade ago.

Disagreeing with the new bail provisions, the state’s attorney suggested that cash might guarantee a person’s appearance in court if “the other tools available in the (judicial) toolbox” are insufficient. But the cash bail was Proven over and over again It can have little effect on the defendant’s appearance in the courtroom, and this is not the best way to ensure public safety: the potential safety concerns for the community are the same whether or not someone has access to the courtroom. Thousands of dollars Wanted for pre-trial release.

The plaintiffs also argued that SAFE-T violated the separation of powers, whether or not it was legally enacted. They asserted that judges should have unfettered discretion regarding pretrial proceedings, and the legislature could not constitutionally limit their options by deselection. But the Illinois legislature did Already dictate considerations for bailas the President of the Court hastened to point out.

Plaintiffs also incorrectly implied the law’s amendments to the “90-day provision” of the Illinois criminal code—which largely predates the SAFE-T and requires that a defendant not be denied pretrial release if they are not brought to trial within 90 days. Ayam – “mandating” the release of dangerous individuals, another limitation on the independence of the judiciary. Hemmer went on to remind the court that “the pillar of pretrial legislation” rests on the simultaneous power of the judges and the legislature. He said the constitution is the floor, not the ceiling, of the rights of people accused of breaking the law, and the legislature is free to add protections.

• • •

It is not yet clear who will win. Illinois Supreme Court justices have pushed hard on both sides of the argument. Critics of SAFE-T seem to raise more doubts, both about their position and their substantive arguments. But with the political climate turning against bail reform, the court may be more inclined to indulge their theories. Either way, lawmakers across the country should take notice. The outcome in Illinois will help illustrate how bail reform legislation can be framed, if necessary, to address relevant challenges from skeptics of criminal justice reform.

Ram Subramanian is the managing director of the Justice Program at the Brennan Center.

Ames Grauert is Senior Counsel and Counsel to Attorney John L. Neo is in the Brennan Center’s Justice Program.


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