Plaintiffs and the defendants appeared before the Illinois Supreme Court Tuesday morning to deliver oral arguments regarding the cash bail provision of the SAFE-T Act.

The arguments followed a lower court ruling in December that found the language eliminating cash bail in Illinois in the 764-page SAFE-T Act to be unconstitutional. Attorney General Kwame Raoul, representing the state and named a defendant in the case, appealed the decision from the Kankakee County court. The high court delayed implementation of the provision called the Pretrial Fairness Act that was supposed to begin on Jan. 1.

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Raoul, present in court, told reporters following the hearing that the SAFE-T Act was part of six decades of legislative action from the Illinois General Assembly. This precedent, he said, "undermines" the argument of the plaintiffs.

Asked about the state's standing, Raoul did not express explicitly whether the court would rule favorably for his side.

"There is nothing specific in the constitution that mandates that cash bail be preserved as a sufficient surety," he said, a primary argument made by the plaintiffs. "I think the plaintiffs did not overcome that."

Both sides were given 10 minutes to deliver oral arguments before the seven-judge panel where discussions ranged from legal precedents, impact on law enforcement, and whether or not a ballot referendum was necessary.

Presenters for the state, represented by Deputy Solicitor Alex Hemmer, and the plaintiffs, represented by Kankakee County State's Attorney Jim Rowe and special assistant state's attorney Alan Spellberg, were questioned by the justices in the hearing which took less than an hour.

Gov. JB Pritzker, House Speaker Emanuel "Chris" Welch and Senate President Don Harmon also were named as defendants. A group of 60-plus state's attorneys and sheriffs - among them Sangamon County's attorney Dan Wright and Sheriff Jack Campbell - filed suit against the state last fall.

No specific timeline was given, but a spokesperson for ILSC said the justices could issue an opinion in a few months or longer.

Constitutional considerations

Whether it be the state’s 1818 or 1970 constitution, much of Tuesday’s discussion centered on whether the bill signed into law by Pritzker in 2021 was constitutional.

Hemmer discussed both the bail and the crime victims’ rights clause, which the plaintiffs' claim requires the need for monetary bail.

The bail clause, Article 1, Section 9 of the Illinois Constitution states “all persons shall be bailable by sufficient sureties” with exceptions for capital offenses, life-sentence convictions, and non-probational felonies. Hemmer contended, however, the clause makes no specific mention of how bail must be met.

“It doesn’t require the state to maintain any particular method of obtaining pretrial release, including the system of monetary bail,” he said, calling the action taken by the Illinois General Assembly “consistent” with the stipulations of the bail clause.

Plaintiffs claimed cash bail was both the law and necessary to ensure an individual would appear for a scheduled trial.

The 2014 crime victims’ rights clause, added to the 1970 state constitution as the 12^th amendment, Hemmer said adheres only to victims and not law enforcement. The clause known as Marsy’s Law expanded the rights of crime victims and, while it would apply to a cash bail system, he again stated these rights would still be ensured if that system was eliminated.

Rowe countered, merits of the policy aside, the decision to end cash bail in the state should go before the voters. This was also the contention of Kankakee County Judge Thomas W. Cunningham in his December decision that paused the implementation of ending cash bail.

The Kankakee County attorney decried the process in which the bill passed – introduced in the early morning hours when lawmakers had an hour to review it before voting.

“Unfortunately, they took a few unconstitutional turns along the way,” he said. Rowe, a Democrat, was the first state’s attorney to file suit against the state.

DuPage County State’s Attorney Jim Glasgow, also suing the state, told reporters following the arguments the state should have taken the bail reform route like in New Jersey and New Mexico. Those states put the issue up for a referendum.

Depending on how quickly the state's high court moves in issuing an opinion, a referendum could be on the 2024 ballot, he said.

90-day deadline

A common issue cited among opponents is a deadline for when a detained individual must be brought to trial. The SAFE-T Act sets that standard for 90 days, where the person would have to be released after that deadline has passed.

They say the deadline does not grant enough time for prosecutors to conduct an investigation and have filed legislation that would extend it to 120 days.

Glasgow said the timeline is even further challenged by other provisions in the SAFE-T Act. With the exception of public defenders, he said no funding was allocated through the bill to crime labs or probation departments.

“I need more assistance, none of that happened,” he said. “It created a very precarious situation in my office.”

The plaintiff’s arguments against the 90-day deadline, Hemmer said were too broad and not indicative of precedent dating back to 1988. Courts can also seek continuance with proper cause through the SAFE-T Act.

Contact Patrick Keck: 312-549-9340, pkeck@gannett.com, twitter.com/@pkeckreporter.com