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Illinois Supreme Court Rules Monetary Bail Not Required By Bail Clause in State Constitution

Garrett Snedeker
Staff Attorney

June 3, 2024

In July 2023, the Illinois Supreme Court issued a much-anticipated ruling in Rowe v. Raoul, a challenge to the state’s Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act.[1] The Act “dismantled and rebuilt Illinois’s statutory framework for the pretrial release of criminal defendants.” [2] In a 5-2 opinion, the Illinois Supreme Court reversed a lower court’s ruling that the Act violated the Illinois Constitution’s bail clause, crime victims’ rights clause, and separation of powers clause.[3]

SAFE-T grew out of the Illinois Supreme Court Commission on Pretrial Practices. The Commission issued a 2020 report recommending measures “to ensure defendants are not denied liberty solely due to their inability to financially secure their release from custody.”[4] The Illinois General Assembly acted on the recommendations of the Commission and passed SAFE-T, with Governor Jay Pritzker signing the bill into law in 2021.[5] Most provisions of SAFE-T only took effect in 2023.[6]

SAFE-T—along with a related piece of legislation, the Follow-Up Act—reformed several aspects of pretrial release. First, SAFE-T abolished monetary bail.[7] The Follow-Up Act replaced monetary bail with “a default rule that all persons charged with an offense shall be eligible for pretrial release on personal recognizance.”[8] However, SAFE-T did permit the pretrial detention of criminal defendants who are charged with one of the “enumerated felony offenses,” who may pose a threat to the community, or who pose a flight risk.[9] Next, SAFE-T revised the understanding of “bail” in the Illinois Code, removed all references to a trial court’s discretion in determining monetary bail amounts, and eliminated the previous requirement of at least 10% deposit of any monetary bail amount.[10] Those references to “bail” were replaced with a multifactor list of statutory considerations for courts to weigh in determining a defendant’s eligibility for pretrial release.[11]

Litigation challenging both SAFE-T’s constitutionality and the validity of all amendments to the pretrial release provisions began in September 2022.[12] The Attorney of Kanakee County, Illinois, James Rowe, filed a suit against Illinois state officials including Attorney General Kwame Raoul on eight separate counts.[13] After some consolidation of the initial suit with additional related lawsuits, both sides filed motions for summary judgment.[14]

In November 2022, a trial court in Kanakee County held that Rowe, as an elected State’s Attorney, had standing to sue and ruled in favor of Rowe and the challengers to SAFE-T, but only on four of the eight counts.[15] The court held the legislature’s amendments to the Illinois Constitution’s pretrial provisions were unconstitutional; the legislature’s pretrial release provisions violated the bail clause of the Illinois Constitution; the pretrial release provisions violated the Illinois Constitution’s crime victims’ rights clause; and the legislation violated the Illinois Constitution’s separation of powers clause.[16] Raoul and other Illinois state officials appealed the ruling directly to the Illinois Supreme Court.[17]

In an opinion by Chief Justice Mary Jane Theis, joined by four other justices, the Illinois Supreme Court held that SAFE-T’s revisions to Illinois’ laws governing pretrial detention did not violate the Illinois Constitution.[18] Before addressing the four counts on appeal from the lower court, the court laid down some background principles. First, the court acknowledged that statutes deserve a “strong presumption of constitutionality” and that a “heavy burden” lies with those challenging their constitutionality.[19] Next, the court briefly addressed the standing of the litigants. Finding as the lower court did that the case concerned “unusual circumstances” involving “the public interest” and that the state had waived potential standing objections, the court determined that the standing threshold had been met.[20]

The court first examined the lower court’s holding that SAFE-T’s pretrial release provisions violated the Illinois Constitution’s bail clause. The constitutional language most closely scrutinized was “All persons shall be bailable by sufficient sureties . . .”[21] The trial court understood monetary bail as a necessary component of “sufficient sureties.”[22] The court disagreed with the trial court’s understanding of “bailable by sufficient sureties” for three reasons.[23] The trial court assumed, without sufficient justification, that “sufficient sureties” entailed monetary bail.[24] Next, the trial court improperly assumed that the state has an interest in preserving monetary bail and failed to consider exceptions and other measures that may be taken in lieu of strictly monetary bail.[25] Finally, the trial court did not honor the intent of the drafters of the most recent Illinois Constitution—and the drafters of each previous iteration of the Illinois Constitution—who sought to keep the understanding of bail rooted in the 1818 Constitution’s understanding of bail.[26] The 1818 Constitution’s understanding of bail did not include monetary bail according to sources marshaled by the court.[27] Therefore, the legislature had the authority to amend pretrial release provisions to remove monetary bail without violating the Illinois Constitution’s bail clause.[28]

The court then addressed the lower court’s holding that SAFE-T conflicted with the crime victims’ rights clause of the Illinois Constitution. That clause guarantees “the right to have the safety of the victim and the victim’s family considered in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.”[29] Whereas the trial court had held that a “plain reading” of the clause referred to setting the amount of monetary bail, the Illinois Supreme Court countered that its own “plain reading” of the Illinois Constitution held otherwise for three reasons. First, the “amount of bail” referred to “a quantity of sufficient sureties.”[30] Second, the exceptions outlined in SAFE-T adequately consider the crime victims since a court will still have “to consider the ‘nature and seriousness of the real and present threat to the safety of any person or persons that would be posed by the defendant’s release.’”[31] Third, mandating a system of monetary bail through the synthesis of two independent clauses, the bail clause and the crime victims clause, “dilute[s] the purpose” of the crime victims clause with “another tangential purpose.”[32]

The court finally addressed the lower court’s holding that SAFE-T violated the separation of powers clause of the Illinois Constitution.[33] Citing the Illinois Supreme Court’s precedent People ex rel. Hemingway v. Elrod,[34] the trial court had held that denial or revocation of bail was a matter of criminal procedure, and therefore “an administrative matter inherently entrusted solely to the courts,” not to the legislature.[35] The court countered that the trial court misread the breadth and applicability of HemingwayHemingway concerned the right to bail in the first place: “[W]e decided the very narrow question of whether a trial court has inherent authority to deny pretrial release.”[36] Courts do not have exclusive authority to determine bail provisions though. The court noted that “the legislature has long regulated the bail system,” citing at least twenty instances of the legislature amending the Illinois code on bail since 1963.[37]

Justice Mary Kay O’Brien concurred in the decision but wrote separately to criticize the majority’s “short shrift” treatment of the standing question.[38] Justice O’Brien distinguished the normal consideration given to standing for plaintiffs in most cases (whether a plaintiff is suffering immediate harm or is in danger of suffering imminent harm) from the standing factors concerning the plaintiffs in Rowe that were met by the combination of a case in the public interest and where the defendants waived significant standing objections. In Rowe, the question was over standing as an affirmative defense by defendants. To Justice O’Brien, the defendants did not meet their affirmative defense burden by simply waiving the plaintiffs’ standing obligations since the plaintiffs too had an interest in resolving the case.[39]

Justice David Overstreet, joined by Justice Lisa Holder White, offered a lengthy dissent.[40] His opinion first aimed at what he saw as the insufficient attention given to the standing question. Justice Overstreet accused the majority of not answering the primary question over standing in the case: “the proper role of constitutional officeholders in a dispute involving the interpretation of our constitution.”[41] Justice Overstreet focused mostly on the interest in controversy prong of the standing analysis. He chided the majority for not recognizing that state’s attorneys, such as Mr. Rowe, have statutory duties to bring claims such as the ones at the heart of this case.[42] Additionally, “the crime victims’ rights provision in the Illinois Constitution, in conjunction with the legislature’s enactments designed to give effect to those enumerated rights, creates statutory duties of state’s attorneys with respect to enforcing and giving effect to crime victims’ rights.”[43] It is not because the defendants waived standing objections that state’s attorneys, the plaintiffs, could bring this case, according to Justice Overstreet, but because they are charged with defending more broadly the rights of crime victims.

The dissent then addressed the constitutional counts at issue on appeal. Justice Overstreet organized his dissent around three themes. First, he discussed how sovereign authority in Illinois rests with its citizens. Justice Overstreet rejected the majority’s framing of legislative primacy as representing the sovereign will of Illinois citizens. Instead, he found that sovereignty has always been expressed through the Illinois Constitution, and that the majority subordinated the plain meaning of the Illinois Constitution to the legislative power.[44] The majority “may not alter or ignore the plain language of our constitution as set out by its citizens, no matter how strongly the court agrees with the public policy underlying the abolishment of monetary bail.”[45] He accused SAFE-T of “effectively set[ting] at zero” the amount of bail that the judiciary is obligated to set.[46]

Next, he argued that the constitution’s understanding of “amount of bail” did in fact include monetary bail, and that this had been affirmed for the past sixty years in the state code and as recently as in the 2014 amendment to the constitution. Justice Overstreet cited the court in Schilb v. Kuebel as a representative case for the assumption that “amount of bail” meant monetary bail.[47]

Finally, Justice Overstreet argued that the plain language of the victims’ rights clause did not support the majority opinion. He argued that the better reading of the clause can be found in the 2018 case of Carmichael v. Laborers’ & Retirement Board Employees’ Annuity & Benefit Fund of Chicago.[48] In Carmichael, the Illinois Supreme Court held that the best method to interpret a provision in the state code is to compare the understanding of the terms in the code against the understanding of the corresponding terms in the state constitution “at the time the people vested this constitutionally protected right.”[49] Therefore, the majority was incorrect, according to Justice Overstreet, to change “the express language used to define the right, making it mean less than what it plainly states.”[50] Justice Overstreet understood that the 2014 amendment to the Illinois Constitution—which assumed the “amount of bail” meant “monetary bail”— was a legitimate exercise of Illinois citizens’ sovereign will under the Illinois Constitution.[51] He viewed the 2014 amendment as a clear decree on how Illinois citizens view the scope of bail. SAFE-T, as a piece of ordinary legislation, could not fundamentally alter this decree. He concluded that the appropriate method of altering the meaning of bail was a state constitutional amendment.[52]

[1] Rowe v. Raoul, 223 N.E.3d 1010

[2] Id. at 1013.

[3] Id. at 1012.

[4] Id. at 1013 (quoting Ill. S. Ct. Comm’n on Pretrial Practices, Final Report 22 (2020)).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1014.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id. at 1015-16.

[16] Id. at 1014.

[17] Id. at 1016.

[18] Id. at 1023.

[19] Id. at 1016-17.

[20] Id. at 1017.

[21] Ill. Const. 1970, art. I § 9.

[22] Rowe, 223 N.E.3d at 1018.

[23] \Id.

[24] Id.

[25] Id.

[26] Id. at 1019.

[27] Id.

[28] Id. at 1020.

[29] Ill. Const. 1970, art. I § 8.1(a)(9).

[30] Rowe, 223 N.E.3d at 1020.

[31] Id.

[32] Id. at 1021.

[33] Ill. Const. 1970, art. II § 1.

[34] 322 N.E.2d 837 (Ill. 1975).

[35] Rowe, 223 N.E.3d at 1021.

[36] Id. at 1022.

[37] Id.

[38] Id. at 1023 (O’Brien, J., concurring).

[39] Id. at 1025.

[40] Id. at 1026 (Overstreet, J., dissenting).

[41] Id. (Overstreet, J., dissenting).

[42] Id. at 1028(citing 55 ILCS 5/3-9005(a)(1) (West 2020)).

[43] Id. at 1030.

[44] Id. at 1040-41.

[45] Id. at 1035.

[46] Id. at 1036.

[47] Id. at 1036-37 (citing 264 N.E.2d 377 (Ill. 1970) (“[10% of monetary bail] as the principal method to be used in giving bail.”)).

[48] Id. at 1038-39 (citing 125 N.E.3d 383 (Ill. 2018)).

[49] Id. at 1039.

[50] Id.

[51] Id. at 1040.

[52] Id. .

Originally Published in The Federalist Society