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 which recommended
abolishing cash bail, followed by the massive George Floyd protests in the
summer of that year, along with insistence from activists that the legislature
needed to take action, and then-House Speaker Michael Madigan’s desperation to
remain in power by locking in a long-frustrated Black Caucus’ support and 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.
