A closer look at why the Illinois Supreme Court upheld law ending cash bail

Both the majority and minority opinions in the Illinois Supreme Court’s landmark ruling on the SAFE-T Act last week claimed the other side was ignoring the “plain language” of the Illinois Constitution. Each focused on a single, but different word.

As the all-Democrat majority noted, the judiciary must look at the “plain language used in its natural and popular meaning when the constitutional provision was adopted.”

For the majority, the “plain language” in question was from the Illinois Constitution’s Bill of Rights: “All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great.”

The Illinois Supreme Court created a Commission on Pretrial Practices in 2017, which eventually reported back that “bailable” by “sufficient sureties” did not necessarily mean cash bail. The word “bail,” the commission reported, “literally” means “release” and does not necessarily mandate a cash component. Last week’s majority opinion emphasizes that the state’s constitution never specifically spells out that bail is monetary in nature.

Importantly, the majority opined that cash bail “was all but unknown” when the state’s original constitution was first approved in 1818, and the same basic language from that document remains in force today.

“The bail clause does not include the term ‘monetary,’ so it did not cement the practice of monetary bail, however long-standing and prevalent across Illinois, into our constitution. ‘Sufficient sureties’ is not limited to sufficient monetary sureties, and we cannot append or supplement the constitutional text,” the majority ruled.

The all-Republican minority opinion relies on a different word in a different part of the state’s Bill of Rights to argue that the statute “is in direct violation of the plain language of our constitution’s bill of rights.” The section was written to protect the rights of crime victims, partly by allowing them to have their and their families’ safety considered when courts fix the “amount” of bail. But within the statute, the minority argued, “the amount of bail is effectively set at zero for all cases under the Act,” which therefore “wholly nullified” victims’ constitutional rights.

The majority opinion countered that argument: “The crime victims’ rights clause mentions the ‘amount of bail,’ not the amount of monetary bail. The word ‘amount’ connotes quantity and does not only mean a quantity of money but rather, consonant with the bail clause, a quantity of sufficient sureties.” The majority went on to note that crime victims’ rights were specifically protected in the statute within the confines of the Bill of Rights and that “Nothing in the crime victims’ rights clause’s plain language indicates such an intent to upend suddenly, after 174 years, the constitutional history of bail in Illinois.”

The opinions are a bit more complicated than what I’ve laid out, but that’s really the essence of the two arguments. The claim made against the statute brought by state’s attorneys and sheriffs — that the law violates the constitution’s separation of powers clause — was dismissed by the majority using recent precedent and only mentioned by the minority in its argument that the plaintiffs had standing to bring the case in the first place. The rest of the plaintiffs’ arguments were already dismissed at the trial level.

Former prosecutors have been actively recruited by both political parties forever, in all three branches of state government. That tradition probably won’t change much, except perhaps in Chicago, but people throughout the political spectrum have complained for a very long time that decades, or even centuries, of “war on crime” laws pushed by those former prosecutors and their allies have resulted in the targeting of poor people of color for prosecution and imprisonment.

But the release of the Supreme Court’s Commission on Pretrial Practices report in April of 2020 that recommended abolishing cash bail; the massive George Floyd protests in the summer of that year, along with insistence from activists that the Legislature needed to take action; then-House Speaker Michael Madigan’s desperation to remain in power by locking in support from a long-frustrated Black Caucus; a billionaire governor sympathetic to their cause during what was essentially a closed-off, round-the-clock winter session held in the midst of a deadly worldwide pandemic; and a dysfunctional and unfeared minority party, all combined to pass this highly unusual bill.

States have long been called “laboratories of democracy.” Illinois’ laboratory has managed to produce this law, which is now confirmed as constitutional. We’ll see how it goes.

Rich Miller also publishes Capitol Fax, a daily political newsletter, and CapitolFax.com.

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