Illinois Supreme Court Upholds 'SAFE-T Act,' Eliminates Cash Bail

In December, the Illinois “SAFE-T Act” was put on hold after Kankakee County Judge Thomas Cunnington found portions of the law unconstitutional. As RedState reported, the Act included numerous reforms to the Illinois criminal justice system, not least of which is the elimination of cash bail.

The elimination of cash bail and the amendments to the corresponding pretrial detention provisions is where the SAFE-T Act proves most controversial, and with good reason. Pretrial detention replaces bail to prevent the defendant from fleeing prosecution but also serves to protect the public from the threat posed by dangerous defendants.

But the SAFE-T Act sets multiple standards for pretrial detention layered one on the other. These provisions will make it difficult for prosecutors when petitioning to detain defendants that pose a threat to the public.

The trial court’s ruling applied to 64 counties but not to counties that were not part of the lawsuit, including Cook, Lake, Kane, DuPage, and 34 other counties in the state.

After that ruling, Illinois Attorney General Kwame Raoul appealed the decision to the state’s Supreme Court, which then issued an order staying the provisions in question pending the appeal. As I noted at the time:

[A] ruling striking down a portion of the law would likely not sit well with the State’s governor. Notes National Review:

The SAFE-T Act was the brainchild of Illinois’s governor J.B. Pritzker, who some have suggested as a potential Democratic presidential candidate in 2024. The bill was widely criticized by Republicans and Democrats alike, who accused Pritzker and his allies in the legislature of ignoring record-breaking levels of violent crime in Chicago.

On Tuesday, the Illinois Supreme Court handed down a 43-page Opinion upholding the SAFE-T Act. In overturning the trial court’s ruling, the Court concluded:

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. See 5 ILCS 70/1.11 (West 2022).

Justice David Overstreet filed a dissenting opinion, in which he was joined by Justice Lisa Holder White, observing:

The people of Illinois exercised their ultimate sovereign power in 2014 when they vested crime victims with constitutionally protected rights. They did so by amending the bill of rights in our state constitution, setting out specific enumerated rights to be enjoyed by all crime victims in this state. Those enumerated rights include the explicitly defined right to have their safety and the safety of their families considered by the courts in “denying or fixing the amount of bail.”

This constitutionally protected right is, without question, a limitation on the General Assembly’s authority. Before the legislature can abolish monetary bail, effectively requiring the “amount” of bail to be zero for every criminal proceeding in this state, the legislature must first ask the people to again exercise their ultimate sovereign power and reconsider the scope of this constitutionally protected right. Until that has occurred, the legislature may not, under any circumstances, usurp the people’s exercise of their ultimate sovereign power and undermine their embodiment of this right as cemented in the bill of rights of our constitution.

When the state of New Jersey overhauled its pretrial release practices to prioritize nonmonetary means of pretrial release, it amended its constitution to accommodate this fundamental change in that state’s public policy. See Holland v. Rosen, 895 F.3d 272, 279-80 (3d Cir. 2018) (noting that both the new legislation and the constitutional amendment took effect on January 1, 2017). Here, in Illinois, to abolish monetary bail and the corresponding judicial determination of the “amount of bail,” the legislature must, likewise, first ask the citizens of this state to reconsider the constitutional mandate that the safety of crime victims and their families be considered in setting the amount of bail. The legislature has not done so, but this is constitutionally required no matter how desirable it may be to abolish monetary bail. Accordingly, in the interests of preserving our representative form of government, this court is obligated to declare the Act’s infringement on the Illinois Constitution’s bill of rights to be invalid and unenforceable. For these reasons, I am compelled to dissent from the majority’s validation of this unconstitutional statute.

As indicated in the majority opinion, the new provisions will go into effect on September 18th.

Unsurprisingly, Governor JB Pritzker praised the ruling, posting the following statement on Twitter: