In December 1970, Illinois citizens exercised their right to vote and approved a new Constitution.
Article 14, Section 2 of the Constitution grants power to the General Assembly to initiate amendments to it and articulates the process by which amendments can be made. Proposed amendments can be introduced in either house of the General Assembly, and if three-fifths of the members of each house approve the amendment, then at the next general election, the voters determine if the amendment will be approved or disapproved.
By its design, the Illinois Constitution provides that the voters shall determine if it is to be amended. The Legislature cannot do so by itself. For example, voters approved the Victim’s Rights Amendment in 2014; rejected a proposed graduated income tax in 2020; and approved the Worker’s Rights Amendment in 2022.
For these reasons, we find it troubling that the Legislature refused to allow the voice of the voters to be heard in determining if the bail provisions found in Article 1, Section 9 of our Constitution’s Bill of Rights should be amended. In the past, the Legislature trusted the will of the voters to determine if amendments to the Constitution should be approved. Yet the Legislature deliberately chose to prevent the voters from having a say in the elimination of cash bail. In doing so, the General Assembly showed they did not trust the will of the people.
Let’s look at what the General Assembly did to pass the SAFE-T Act.
Public Act 101-652, a 764-page bill, was introduced on Jan. 13, 2021, at 4 a.m. in the Senate and passed at 5 a.m. Later, the same Act passed at 11:30 a.m. in the House. This bill was passed without so much as a debate in committee, let alone time for members to read it before they were called upon to vote on a piece of legislation that would radically upend the criminal justice system in Illinois, with profound effects on public safety in a state already plagued by crime and violence.
Clearly the supporters of the SAFE-T Act did not want any debate to occur or committee hearings to be held. They did not want the public to know about a law that would amend the Constitution by eliminating monetary bail as a surety. They sought to avoid any careful consideration or public scrutiny.
Kankakee Circuit Court Judge Thomas Cunnington recently ruled that the provisions of Public Acts 101-652 and 102-1104, as they relate to pretrial release, are unconstitutional. One of his findings concerned the improper attempt to amend the Constitution. He correctly articulated in his opinion that ”had the Legislature wanted to change the provisions in the Constitution regarding eliminating cash bail as a surety, they should have submitted the question on a ballot to the electorate at a general election to comply with Article 14, Section. 2.” His decision is on appeal to the Illinois Supreme Court.
Illinois’ native son, President Abraham Lincoln, realized citizens want and are entitled to a government of the people, by the people and for the people. Those members of the General Assembly who believe the bail provisions in the Illinois Constitution should be amended should follow the Constitution. They should embrace the democratic principles and follow the constitutional requirements to ensure the people of the State of Illinois have their say and vote for or against these proposals. When voters have weighed in, only then can the will of the people be known and implemented.
Daniel M. Locallo is a retired Cook County Circuit Court judge. Daniel Kirk is a former Cook County first assistant state’s attorney.
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