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Mayor Lightfoot’s proposal to keep crime suspects in jail violates our Constitution

The Constitution of the State of Illinois is clear: We the people have the right to pretrial release and there are no charges — not even murder — for which a judge may categorically deny us bail.

Chicago Mayor Lori Lightfoot, a lawyer, must have passed Constitutional Law – which means she has chosen to ignore our rights when they get in the way of her political myth-making.

In a speech this week defending her administration’s response to violent crime, Lightfoot called for a broad, categorical halt to the pre-trial release from jail of many of her constituents. Without any doubt, that proposal is unconstitutional.

Lightfoot’s moratorium proposal calls on the courts to adopt a wholesale “guilty until proven innocent” jail strategy for people arrested for a list of both violent and nonviolent crimes, but she knows that study after study has failed to support her claims that people on electronic monitoring are driving gun violence in Chicago.

The Constitution of the State of Illinois is clear: We the people have the right to pretrial release and there are no charges — not even murder — for which a judge may categorically deny us bail. For serious felony charges, a judge must instead make an individualized determination of whether a person accused poses a “real and present” threat to safety. Even for the highest possible crimes, the judge must take the weight of evidence against a person into account.

If a judge heeded her “demand” for a moratorium on release for any type of offense, that judge would be violating the constitutions of both the United States and the State of Illinois, as well as the judge’s oath of office (not to mention ignoring state laws passed by the legislative branch).

Irresponsible and also ineffective

Americans, presumably including Lightfoot, know judges are supposed to be neutral, not the partners of police or a prosecution posse. We elect judges to issue considered, individualized determinations of risk and culpability — not robots to batch-process our neighbors into jail cells.

Judges are at their best when they embrace the presumption that people brought before them are innocent until proven guilty and take real life into account — when they understand the value of tens of thousands of legally innocent people each year continuing to raise their children, keep their apartments, care for their parents, or hold down their jobs while awaiting trial. Judges must, and do, retain the latitude to use reasoned compassion, including for victims of violent crime who carry a gun due to well-founded fears for their own safety, young people accused of a crime a friend actually committed, and people with strong claims of self-defense or innocence. From automatic detention laws to mandatory minimum prison sentences, misguided attempts to take judges out of judging have increased costs, reduced fairness, and inflated racial disparities — all without reducing harm and violence.

The mayor’s call to ignore the law on bail is shocking, irresponsible rhetoric. It also would be ineffective, expensive, and dangerous, adding thousands of people to Cook County Jail just as the COVID-19 variants take hold. It belongs on the discard pile, next to her calls for more surveillance, more civil asset forfeiture, and more spending on law enforcement.

So far in December, Chicago has lost four times as many residents to COVID-19 as to gunfire; tens of thousands of residents are grieving and struggling from years of the stress of both kinds of loss as we rush headlong into a full-scale winter health care emergency. The tolls taken by violence, illness, the criminal system, and economic abuses are concentrated among the Black and Latinx Chicagoans who most need our leaders to deliver truth and real support right now — not punitive legal fantasies.

Stephanie Kollmann is the policy director at the Children and Family Justice Center, Bluhm Legal Clinic, Northwestern University Pritzker School of Law.

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