Illinois responds to state’s attorneys attempt to throw out provision to end cash bail

[February 28, 2023]  By Kevin Bessler | The Center Square

(The Center Square) – Saying the plaintiffs’ “grab-bag of constitutional theories” should be rejected, the state of Illinois has responded to a lawsuit challenging the constitutionality of ending cash bail.

Dozens of state's attorneys from around Illinois joined together to file a lawsuit to have the provision thrown out, stating that the Illinois Constitution requires the state to maintain a system of monetary bail, because that system is mandated by the bail clause, the crime victims’ rights clause, and the separation-of-powers clause.

A Kankakee County circuit court’s ruling initially affected 64 counties where state’s attorneys filed lawsuits to prevent the law from going into effect. Just before the law was to go into effect Jan. 1, the Illinois Supreme Court ordered a hold on the cashless bail portion of the SAFE-T Act from going into effect statewide.

In a brief filed Monday, the office of Illinois Attorney General Kwame Raoul stated that the “plaintiffs’ response brief identifies no persuasive reason to affirm the circuit court’s sweeping decision striking down the pretrial release provisions.”

They go on to note that the court reasoned that three separate provisions of the Illinois Constitution independently require the state to maintain a system of monetary bail, and that only courts, not the Illinois General Assembly, can regulate the conditions under which criminal defendants may be detained pending trial.

“Those unprecedented holdings are incorrect, and would effectively bar the General Assembly from ever reforming pretrial procedures in the State,” the brief said.

Illinois Attorney General Kwame Raoul
Courtesy of BlueRoomStream

Jeffrey Clayton, executive director of the organization American Bail Coalition, agrees with state's attorneys, who argue that an outright ban on bail is unlawful without a change in the state constitution. He points to existing language that states that all persons in Illinois shall be “bailable by sufficient sureties.” This refers to money or a thing of monetary value and is a guarantee of the constitutional rights of a defendant, the group argues.

Clayton said he doesn’t understand why some in Illinois are revisiting the ending of cash bail.

“I don’t and that’s why this is a confusing move because they did it several years ago when the New Jersey question was in vogue and obviously the results didn’t pan out and the alternatives to money bail seem to make the problem worse,” Clayton told The Center Square.

Clayton adds that getting rid of cash bail would mean it must be replaced by something else, such as preventative detention, along with a system of pretrial supervision and due process hearings, but notes that the costs to implement and operate such a system would be astronomical.

The Illinois Supreme Court is scheduled to hear the case March 14.

Kevin Bessler reports on statewide issues in Illinois for the Center Square. He has over 30 years of experience in radio news reporting throughout the Midwest.