Every day, hundreds of thousands of people wait in jail for their cases to be heard by a judge or jury. Many are detained not because of any risk they pose but because they cannot afford bail. Several states have reformed their pretrial practices to eliminate this unnecessary detention, citing a growing body of evidence of how it harms people, communities, and public safety, with a disproportionate impact on people of color.
Illinois is one such state. Continuing a series of reforms begun in 2017, state lawmakers passed the SAFE-T Act, originally scheduled to go into full effect on January 1, 2023. The new set of laws would abolish cash bail and alter procedure to make it easier for people to live and work in their communities while awaiting trial. Judges, however, could still decide to hold those deemed to be a flight risk or a danger to the community. But in late 2022, a group of state’s attorneys and sheriffs challenged the law, and a Kankakee County judge found that the portions that abolished cash bail in the vast majority of instances could not be implemented. The judge reasoned that because the Illinois Constitution mentions bail twice, any change in what “bail” means must be enacted through a constitutional amendment. Illinois allows constitutional amendments via legislation, but only after following a strict set of rules and a general election vote. None of these procedures were followed for the SAFE-T Act.
Illinois, represented by the state’s attorney general, appealed that decision. Now the Illinois Supreme Court has stepped in and blocked the implementation of the bail provisions, leaving thousands of people in jail who would have been eligible for release. The court heard oral arguments on March 14 to consider whether the legislature had indeed acted outside the scope of its power. The hearing focused on two questions: Are the bail provisions valid laws or a constitutional amendment in disguise? Do they violate the separation of powers clause in the Illinois Constitution by narrowing judicial options in pretrial release and detention decisions?
These substantive questions aside, the court raised a procedural deficiency that could well end the case and allow the full law to go into effect. People can only pursue a lawsuit if they have “standing” — that is, if they have suffered or stand to suffer a discrete injury that is within the court’s power to redress. Political objections to legislation do not generally confer standing, as the injury is not discrete.
The court sharply questioned whether the plaintiffs in the original lawsuit, which was filed by a coalition of state’s attorneys and sheriffs led by Kankakee County State’s Attorney James Rowe, had standing to bring this case. Among other things, Rowe argued that a 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, articulable harm to the plaintiffs themselves, the case could simply be dismissed.
The court also raised another hurdle. This litigation is a “facial” challenge: an argument that in no hypothetical instance can the law be constitutional. (By contrast, an as-applied challenge means that the law is unconstitutional in a particular context.) Facial challenges can be brought before a law goes into effect, but they are more difficult to prove.
If the court does not decide the case on either of these grounds, the substantive questions remain tangled. Arguing for the SAFE-T Act, Illinois Deputy Solicitor General Alex Hemmer pointed out that the original drafters of the 1818 Illinois Constitution did not understand “bail” to mean cash bail, which was not common practice until nearly a century later. As a result, abolishing cash bail would not transgress the language or intent of the constitution. And when the constitution was redrafted in 1970, the drafters specifically discussed whether leaving the “bail” provision as is would allow the state to eliminate cash bail in the future — and concluded that it would. Hemmer added, moreover, that the legislature has concurrent constitutional authority to regulate pretrial procedure 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 problematic formula called “Marsy’s Law,” the result of a national campaign to add provisions to state constitutions giving crime victims and their families input into judicial decisions. The related provision of the Illinois Constitution now requires judges to consider “the victim and the victim’s family . . . in denying or fixing the amount of bail” (emphasis added). That language, the SAFE-T Act’s detractors have argued, assumes the existence of cash bail. But as Hemmer pointed out, the Illinois Constitution also contains language about what to do in capital cases, yet Illinois abolished its death penalty legislatively more than a decade ago.
Arguing against the new bail provisions, the state’s attorney suggested that cash might ensure someone’s appearance in court if the other “tools in the [judicial] toolbox” were insufficient. But cash bail has been proven time and time again to have little effect on a defendant’s courtroom appearance, and it 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 thousands of dollars required for pretrial release.
The plaintiffs also argued that the SAFE-T Act transgresses the separation of powers, whether or not it was lawfully enacted. Judges, they asserted, must have unfettered discretion over pretrial procedure, and the legislature cannot constitutionally limit their options by removing a choice. But the Illinois legislature has already dictated considerations for bail, as the chief justice was quick to point out.
The plaintiffs also erroneously implied that the act’s amendments to the “90-day provision” of Illinois criminal law — which largely predates the SAFE-T Act and requires that a defendant shall not be denied pretrial release if they are not brought to trial within 90 days — “mandate” the release of dangerous individuals, another restriction on judicial autonomy. Hemmer went on to remind the court that the “entire scaffolding of pretrial legislation” is predicated on the concurrent authority of judges and the legislature. The constitution, he argued, is a floor, not a ceiling, for the rights of people accused of breaking the law, and the legislature is free to add protections.
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It is unclear yet who will prevail. Illinois’s supreme court justices pushed hard on both sides of the argument. The SAFE-T Act’s detractors seemed to draw more skepticism, both about their standing and their substantive arguments. But with the political climate turning against bail reform, the court could be more inclined to indulge their theories. Either way, legislators around the country should take note. The outcome in Illinois will help make clear how bail reform legislation can be crafted to, if necessary, withstand related challenges from criminal justice reform skeptics.
Ram Subramanian is the managing director of the Brennan Center’s Justice Program.
Ames Grawert is senior counsel and John L. Neu Justice Counsel in the Brennan Center’s Justice Program.