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SPRINGFIELD, Ill. (NEXSTAR) – The legal battle over the SAFE-T Act is reaching its final chapters.

The Illinois Supreme Court officially took the case under advisement Tuesday morning after hearing oral arguments from both sides.

A group of state’s attorneys are suing the state over the constitutionality of the SAFE-T Act. The law was signed by the governor in 2021, and it was supposed to eliminate cash bail on January 1, 2023.

FACT CHECK: What does the SAFE-T Act really do?

The state’s attorneys allege the only way the state can go about eliminating cash bail is through a constitutional amendment, since Article 9 of the 1970 Illinois Constitution states that “All persons shall be bailable by sufficient sureties.”

“The simple way for the legislature to accomplish all of these reforms. Take the question, put it on a ballot, propose it to the people let them vote on it,” Kankakee County State’s Attorney Jim Rowe said in the courtroom.

The Attorney General’s office argues it’s wrong to assume that “sufficient sureties” automatically implies the need for money. The SAFE-T Act would eliminate cash bail, but it would also give judges the power to hold somebody pre-trial based on a few factors. Those include what crime the person is accused of committing, their prior criminal record and whether they can be deemed a flight risk. The law allows for somebody to be released pre-trial based on the judge’s ruling, too. The Attorney General’s office argued since there would still be methods for someone to be released pre-trial, the law does enough to meet the constitutional burden on the courts.

“That clause grants criminal defendants a qualified right to seek pretrial release, it makes them bailable,” Deputy Solicitor General Alex Hemmer said while arguing the state’s side. “It doesn’t require the state to maintain any particular method of obtaining pretrial release, including the system of monetary bail, the elimination of monetary bail, is this consistent with the bail clause? Because it safeguards defendants’ rights to seek pretrial release?”

The plaintiffs also argued that the SAFE-T Act violated the separation of powers by stripping the power to grant cash bail from the judicial branch. To prove this point, the plaintiffs needed to prove that this was “facially” unconstitutional — meaning there was no scenario where the legislature could constitutionally make these changes.

IL Attorney General files Supreme Court appeal for elimination of cash bail

Justice Lisa Holder-White — a conservative justice — openly questioned in the court room if the plaintiffs met that burden of proof.

“That means that you have to demonstrate that there is no set of circumstances that this would be constitutional,” Justice Holder-White said. “Have you done that?”

The State’s attorneys relied on the Circuit Court’s ruling to respond to that question.

“The Circuit Court found because every single band decision, the judges are prohibited from even considering a monetary component that affects every single case,” Alan Spellberg, a special states’ attorney representing Will County, said.

The Attorney General warned of much more wide-ranging impacts if the Supreme Court upholds the circuit court’s ruling and restricts the legislature from working on bail reform at all.

“The plaintiff’s argument, if accepted would have would bring down not only the pretrial release provisions enacted by the SAFE-T Act, but also the entire scaffolding of pretrial of legislative regulation of pretrial release in Illinois that’s existed for that existed for 60 years,” Hemmer said.

How have other states implemented the near elimination of cash bail?

Chief Justice Mary Jane Theis questioned whether the plaintiffs had the legal ground to file this suit to begin with. Previous court rulings found that in order to file suit over the constitutionality of a law, the plaintiffs must be directly affected by the law.

“This Court has said, a party has standing to challenge the constitutionality of a statute only insofar as it adversely impacts his or her own rights. Generally, if there is no constitutional effect or defect in application, that person does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situation. So I have two questions.”

Rowe pointed to the oath that he and other officials take to join office.

“Sheriffs, State’s Attorneys are absolutely proper parties to this litigation,” Rowe said. “Each of us, each of your honors the sheriff as well, we have all raised our right hand and we have sworn a duty to uphold and defend the Constitution of the State.”

Chief Justice Theis remained skeptical.

“Is that the oath we took?” Chief Justice Theis said. “Or was the language prescribed in the statute, that we support the Constitution of the United States and the Constitution of the State of Illinois? And isn’t that the same oath that every lawyer, every person who comes to be admitted into the bar of Illinois, under the attorneys Act takes the same oath in this? And so are you saying that everyone, every lawyer in the state of Illinois has standing to challenge a statute? They don’t like?”

Elimination of cash bail ruled unconstitutional by circuit judge, state to appeal to Supreme Court

The only thing left for the Supreme Court is to rule. The court has no mandatory timeline for making this decision.

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