Illinois Supreme Court Re-Writes 86,197 Days of Bail Legal History in Less than 100, Setting Up A Collision Course With an Explosion in Recidivism
For a generation, the Illinois legislature will now fight a futile political battle over the preventative detention net that they can absolutely never get right, because the game is indeed rigged.
If you illegally steal five guns, you will get out of jail for free. If you steal six, you might face detention by a prosecutor, if the prosecutor can win at hearing. If you beat up a severely intellectually disabled person, you won’t be detained pending trial unless you cause “great bodily harm.”
Welcome to the new Illinois “cashless” bail system.
Let us explain how the Illinois Supreme Court ignored years of precedent and the majority of other state supreme courts, and what it will mean for Illinois going forward. To say it is going to be a mess is like calling the middle east peace process…a simple mediation.
In the recent decision upholding the SAFE-T Act Rowe v. Raoul, the so-called end cash bail in Illinois Act, the Illinois Supreme Court managed to rewrite the legal and constitutional history of bail in Illinois in a spring. The Washington Supreme Court, some years ago, holding that the right to bail by sufficient sureties means access to a personal surety to post a thing of value and to have an amount of bail set, forecasted that surely, were that question ever to be posed to the Illinois Supreme Court, the Illinois Supreme Court would certainly agree with the majority of state supreme courts in this interpretation of what is a constitutional provision that dates to the original Pennsylvania and Massachusetts constitutions and was included in the Northwest Ordinance of 1787, which governed Illinois pre-statehood.
“As a matter of plain language, ‘bailable by sufficient sureties’ means a defendant must have the option to utilize a surety in making bail,” said the Washington Supreme Court. There is debate among states as to whether there is a constitutional right to a professional surety (for compensation) versus a non-professional surety (acting not for compensation) or whether that is left to state statute. A few have said we don’t want bail bonding agents—the vast majority, forty-five, have not. The Illinois Supreme Court already held that professional personal sureties are not allowed in Illinois—hence the reason why you can’t call a bail bondsmen in Illinois (although certainly people do that anyway by using loan sharks and other forms of off-books credit to then run it over to the court house). See Gendron v. Ingram, 34 Ill.2d 623, 217 N.E.2d 803 (1966).
There was little doubt, or at least should have been little doubt, that the right to bail by sufficient sureties in Illinois meant that an affirmative “amount” of bail, understood as security, not money or hard cash, must be set after due consideration of the constitutional and statutory factors, and using a surety arrangement that, to quote the Washington Supreme Court, “involves a third-party promise to fulfill a financial burden in the event of nonperformance or to compel that performance.” So, an amount means everyone can get out if they guarantee that amount, which is an affirmative guarantee of a right to bail much greater than the 8th Amendment to the federal constitution requires. This is also a great check on the governments power to detain because third-party sureties can counter that. Preventative detention, throughout history, and now in the modern world, when abused, is used to detain political opponents. Two, someone gets to “put up for you,” and say, “I got this,” I’m good for this financial guarantee. And commercial paper, a form of guaranteed contract, must be posted or actual assets to make that guarantee, the “sufficiency” of which is a matter of constitutional interpretation and legislation for the legislature to define with particularity. So, the right to bail by sufficient sureties is the affirmative right to have an amount of security set, and the allowance of a third-party to put up the guarantee.
The decision in Illinois to eliminate compensated personal sureties (bail bondsmen) in essence also lead to the elimination of uncompensated personal sureties and turned Illinois in into a “money bail” or “cash bail” state, meaning the right to bail means you put up the cash, period. So, it was easy for the Illinois Supreme Court to conclude to that is what is not is meant by the constitution because, indeed, that was not what was meant. But an unbridled, unlimited system of preventative detention was also not what was meant either. Nearly all state cases interpreting “sufficient sureties” stand for the proposition that an amount of security, not just cash, or money, must be set. The detention net is then limited by state constitution, as Illinois’s is currently drafted, by typically capitol offenses and some other very limited class of serious offenses. Without the requirement of an “amount” of bail to be set, the system of “bail by sufficient sureties” would be rendered meaningless.
Thus, as the trial court held, the SAFE-T Act eliminates the right to bail by sufficient sureties because it says that there is never to be an amount of bail set, and thus no personal surety will ever have the opportunity to post it. In essence, this over-rules Stack v. Boyle, 342 U.S. 1 (1951) in Illinois (Stack was later over-ruled by the Federal Bail Reform Act of 1984 by eliminating the right to bail by sufficient sureties). That is nothing short of a monumental shift. For if there is no right to have an amount of security set, there is no way for a third-party or the defendant to meet that amount, and thus be released. Thus, the right to bail by sufficient sureties, the right to a third-party surety guarantee that then requires release, has been entirely eliminated as a core constitutional right.
So why is there is a right to bail, or at least why was it there?
It exists is to eliminate the power of the government to detain a person pending a conviction, and to protect the presumption of innocence by allowing such detention to be premised on an unproven allegation. This concept dates most importantly to the so-called “Five Knights” case, which is also called “Darnel’s case” of 1627, where the king imprisoned five knights (who refused to pay for the war) and refused to set a bail, a situation later reversed in the Petition of Right, which created the affirmative guarantee that a bail, an amount of security, be set. That is, until the Illinois Supreme Court got their hands on it and extinguished it in one decision.
Here, the Illinois Supreme Court says that the Illinois legislature has a blank slate to define what is now to be a system of preventative detention, that is, we simply say you are too dangerous, we don’t like you, you sit in jail. That power, under this interpretation, is now unlimited, and not constrained by the state constitution. And the public, through bail funds, churches, friends and family getting together their assets, may do absolutely nothing to challenge the custodial decisions of the state by providing a sufficient third-party guarantee that then requires release. Extinguished in Illinois are the U.S. Supreme Court precedents defining the personal surety relationship as one allowing the defendant to choose the jailer of one’s choice, his surety, who by operation of law takes legal custody of the defendant pending trial. All of that is gone. The public no longer will participate or have the opportunity to challenge these custodial decisions.
The federal system of preventative detention has utterly failed and increased mass incarceration. The detention rate was 24% when there was a right to bail by sufficient sureties in 1983. Now, that rate is 75% detained. The arguments in favor of more avenues for preventative detention in Illinois will become even greater, especially when a big-time offender commits an outrageous, high profile crime, which is not on the detention list. The pressure to detain may overwhelm, as it did over time in the federal system. Justice Rehnquist wrote that “liberty is the norm,” when first authorizing the despicable practice of preventative detention in 1984. Now, “detention” is the norm.
This system of detention was also adopted in New Jersey (by constitutional amendment because even Governor Chris Christie’s ego wasn’t bigger than the settled right to bail by sufficient sureties, which had to be removed). That state has spent hundreds of millions on: (1) prosecutors, defenders and judges to handle the preventative detention mini-trials; and, (2) on a system of pretrial supervision to attempt to replace the system of personal sureties, compensated or not, that provide pro-safety and appearance benefits to the system. Did it work, we don’t think so, but it is clear regardless that it was not worth the money and the racial disparities which were to be corrected by such system have instead replicated themselves and become worse in a system of denying bail altogether, a system that the public has no way to challenge in the event a prosecutor was to get it wrong. And the creep of detention has begun, as predicted, and to what end.
Now, under this decision, the Illinois legislature can decide the detention net without any regard to the limits in the constitution, and the early indicators are, they are going to continue to go light on it rather than follow the federal lead, because, well, that is the entire point. They are certainly going to ignore the commands of Salerno, because, well, the federal judges did that too. The myth of the presumed innocent being separated from the guilty to preserve the procedural flimsiness upon which the regime of preventative detention is built, See 481 U.S. 739, 748 (“the statute at issue here requires that detainees be housed in a ‘facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal.’”) will most surely be ignored—the innocent will indeed become the guilty. Not to mention the question of whether the existing speedy trial act is speedy enough when you simply deny bail. Litigation will go on for years on these points. Of course, how much has been provided to prosecutors, judges, and defenders to do the preventative detention hearings that will be necessary every time a person remains in jail pending trial. I am not aware of a significant appropriation therefor.
Whether someone stays in jail will now depend solely on two considerations: (1) whether the crime is on the list; and, (2) whether a prosecutor can prove flight risk and danger by clear and convincing evidence mere days after arrest. If not, the defendant will walk out without posting “any” sureties, much less “sufficient.”
So, for example, under the SAFE-T Act, if you commit aggravated battery on a child, you’ll walk out of jail for free, unless you cause “great bodily harm,” and a prosecutor is quick with a motion and pulls the trigger. Burglary, get out of jail free, unless you use force against another person. Another example, break into someone’s house with a knife, steal some stuff, but not stab them, get out of jail for free because a prosecutor may not file for detention. Stab them, prosecutor can file for detention, must go to a hearing to prove. And my personal favorite, aggravated possession of stolen firearms—less than six, walk for free, six or more, potential detention by prosecutor. Because the crucial decision of custody pending trial should be determined whether I am charged with illegally stealing five guns versus six. That is what the Illinois legislature says it is, so guess what? It is. Five guns, “safe”: six guns, “dangerous.” Felony retail theft is not on the list at all, so that will mean you can clean out a retail store with a U-Haul truck rather than worrying about the niceties of things like misdemeanor versus felony theft, and thus any realistic potential of detention. Aggravated driving under the influence—no possibility of detention unless it’s your 4th aggravated DUI, you caused an accident, you were driving a school bus with passengers, or you have a prior DUI related homicide conviction. And the legislative line-drawing goes on.
What does this mean? It means recidivists will slip through the cracks, and deterrence will break down. There’s one fundamental thing the Illinois Supreme Court cannot ever deny—the charge lodged by a prosecutor does not equate to risk, and yet that is the entire architecture of the new scheme, thus dooming it to fail. In Illinois, it is the first and really sole decision-maker when deciding to seek detention. A person that is a flight risk and danger who commits ten separate crimes not on the list is simply not eligible, whereas a drunk person that went to a wrong house who accidentally used force thinking it was a person in their house who is then wrongly charged with burglary using force could face preventative detention.
The other biggie here is that the “People of the State of Illinois” have lost their right to ask of those accused that someone put up for them. Bail is, and always has been, a test of your ties to the community. The People no longer have the right to ask for sufficient sureties. Their right is to now seek detention in the limited fashion as defined by the legislature, otherwise that person is released with zero sureties. The constitution did not contemplate this level of restriction on prosecutorial or judicial power then transferred into the hands of the state political branches of government.
Of eliminating the right to bail by sufficient sureties at all, Justice Thurgood Marshall would have held that you cannot do that in the federal system, in a stirring dissent I read quite often. See 481 U.S. 739, 755. Preventative detention, he said, was one of the “shortcuts we take” to harm the guilty that in the end only harm the innocent, and thus was inconsistent with the 8th Amendment and Due Process clauses. He described what will be the Illinois system of preventative detention as, “consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state.” What is the answer of those who seek to protect the innocent to that? That the legislature will constrain itself because money bail is evil? That the arbitrary means the legislature chooses to jail the presumed innocent is more reliable than the arguments of counsel in front of a judge in a particular case as to sufficient sureties? We don’t think so, but time will tell. We’ll stick with Justice Marshall and continue to argue that Salerno should be overturned there, and in Illinois, because the right to bail by sufficient sureties is our constitutional tradition, creates a better balance, and takes politics out of creating the pretrial detention net. The Illinois Supreme Court, however, shamefully simply affirmed the holding in Salerno for all time in Illinois, without even giving it as much of a second thought.
For a generation, the Illinois legislature will now fight a futile political battle over the preventative detention net that they can absolutely never get right, because the game is indeed rigged. The net created by bail by sufficient sureties would do a better job as history has proven—the right to bail pre-dates the era of mass incarceration. Illinois may over-detain like the federal government, going from 24% to 75% over a 40-year period, but my prediction is that recidivists, like in New York, will take advantage and the detention net will start out much lower than was under the system of bail by sufficient sureties, as that was the point—de-carcerate. The pressure to detain will increase over time, no doubt, where started in the 1 out of 5 range and start moving up to 1 out of 2. But, pick as many charges as you want to include or exclude—you’ll never get it right because charge doesn’t equal risk. Add exceptions, doesn’t matter.
Luckily, the Supreme Court’s delegation of power to the legislature in ignoring the constitution is so sweeping, I think the legislature could simply re-codify the right to bail by sufficient sureties as it was constitutionally meant to be, what the People of Illinois knew it to be in 1818, and what it is in the vast majority of states and territories. Until then, the settled constitutional right to bail will be put into a state of uncertainty not known since 1717 and 1787, and you can bet that recidivist criminals will be the ones that will be taking maximum advantage, not the indigent, working poor the law seeks to protect. Preventative detention harms equally persons of all means.