Isn't cash bail or no cash bail really beside the point?

Non-lawyers hearing about yesterday's Illinois Supreme Court decision in Rowe v. Raoul, 2023 IL 129248, may wonder why, since the Court found Public Acts 101-652 and 102-1104 (eff. Jan. 1, 2023) to be constitutional, the Court stayed implementation of these measures for an additional 60 days, until September 18.

The Supreme Court did not explain its reasons, but it is not unreasonable to guess that time is needed to give courts time to figure out new practices and procedures consistent with the new laws. While these measures enjoyed wide support among statewide elected officials and officials in a few counties, including Cook County, of course, these measures were actively opposed by most prosecutors and law enforcement agencies around the State. Anyone who watched the oral argument in this case before the Supreme Court presumably came away with the impression, as I did, that the Supreme Court was likely to uphold what is colloquially referred to as the SAFE-T Act -- but I've drawn the wrong conclusions from watching oral arguments before -- and, until yesterday morning, the opponents of the Act could still harbor hope.

Now, all these one-time opponents of the law must learn to live with and function under it.

Politicians and even their less responsible siblings, TV and social media talking heads, are, according to their chosen "silos", aghast or aglow about the Supreme Court's decision. In the former category, a Twitterer calling herself Lisa Marie says the "justice system is now a joke." Downstate Congressperson Mary Miller cries that the "Illinois Supreme Court [has] erased the rights of crime victims." Dan Proft warns ominously, "Get ready for more of that big-city livin', suburbanites."

TFW you learn Illinois is no longer criminalizing poverty! These snapshots show the exact moment Gov. Pritzker and I received the Supreme Court decision that makes Illinois the first state in the nation to ensure violent offenders can no longer buy their way out of jail. This is… pic.twitter.com/rOqZEi93Mh

— Speaker Emanuel “Chris” Welch (@SpeakerWelchIL) July 18, 2023

On the other hand, the embedded Tweet shows Gov. Pritzker and Speaker Welch rejoicing upon learning of the Supreme Court's decision. In a celebratory statement, Cook County Board President (and County Democratic Party Chair) Toni Preckwinkle enthused, "By ending money bond, we have taken a significant step forward in dismantling a system that disproportionately impacts our Black and Brown communities." ABC-7 collected a number of reactions to the decision, including this quote from Mayor Brandon Johnson: "Cash bail does not make communities safer, and it never has; it has simply exacerbated existing inequities and disparities in the criminal legal system. Pretrial detention, as a result of the inability to pay bail, further decimates communities that have long been most impacted by mass incarceration, and the destabilization of households and families."

But this statement yesterday, from Gov. Pritzker, may turn out to be the most important: "We can now move forward with historic reform to ensure pre-trial detainment is determined by the danger an individual poses to the community instead of by their ability to pay their way out of jail."

Because that is the bottom line: Under the new law, will judges be able to detain truly dangerous persons while they await trial? I would find it hard to believe that any judge (any judge, that is, even remotely faithful to his or her oath) ever deliberately released someone on bail knowing that said person was certain to commit another, possibly more heinous, offense. And yet -- obviously -- persons free on bail have been accused of serious crimes. It happens now with "affordable bail" and it happened before "affordable bail" became a watchword. Cash bail has never been an ironclad guarantee against further criminal conduct by those inclined to commit crimes.

The only way to guarantee (or, if you will, "ensure") that no accused person commits another offense while waiting for trial is to detain everyone, always. And no one wants that. Reasonable people may differ on how danger to the community may be measured. But -- and pardon my ignorance, for I never did practice regularly in our criminal courts -- wasn't this a sticking point with cash bail, too?

In other words, we're all going to have to see how the new system works in actual practice.

If it turns out to be Armageddon, or The Purge, or whatever the fearmongers predict, you can bet that judges will take the blame. The fearmongers already are blaming the justices of the Supreme Court. But, if things turn out badly, the very pols now praising the SAFE-T Act to the skies will not hesitate to insist that judges screwed up the implementation.

Now, judges must follow the law. I know there are some in both silos who insist that judges do not in fact do this, but I am confident (to take a relevant example) that both the five Supreme Court justices who upheld the SAFE-T Act yesterday and the two dissenters were fully confident of their own compliance with Rule 1.1 of the new Code of Judicial Conduct. Moreover, I am convinced that the five justices in the majority and the two dissenting judges each thought their colleagues on the other side wrong, but also fully compliant with the overriding command to follow the law.

Non-lawyers sometimes seem to have a hard time with this. But lawyers understand, or should understand, that, when our Supreme Court speaks on a matter within its authority, discussion is over and remains over, at least for the foreseeable future. The Illinois Supreme Court had the final word on the SAFE-T Act, and it has spoken. There is an old expression most lawyers know: The Supreme Court is not final because it is always right, but it is right because it is always final.

So the law enforcement agencies, the prosecutors, and the judges -- especially the judges -- will have to learn how to work with these new measures, whether they like them or not. And the Supreme Court has given all of them, those who supported the SAFE-T Act, and those who opposed it, 60 additional days to figure out how.

From my non-specialist perspective, cash bail or no cash bail seems really beside the point. Cash bail was merely a tool -- one tool -- that judges had for detaining dangerous persons before trial. The real issue here is whether the SAFE-T Act provides our judges with sufficient other tools "to ensure," as Gov. Pritzker promised, that "pre-trial detainment is determined by the danger an individual poses to the community."

If some judges find that the SAFE-T Act does not provide sufficient tools for this purpose, those judges must nevertheless follow the law as required by Rule 2.4(A) of the Code of Judicial Conduct, "[un]swayed by public clamor or fear of criticism." Comment 1 to that rule instructs that judges must "decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends or family."

But their hands are not tied. Although judges can not make public comments about pending matters under Rule 2.10, they can explain their actions in the course of announcing their decisions. If a judge finds, under the law, that he or she can not order pretrial detention for someone who in their view is likely to reoffend, an explanation of the provisions that were considered and deemed insufficient for this purpose would be helpful. Moreover, under Rule 3.2(A) and Rule 3.2(B), judges are permitted to voluntarily appear and consult with executive and legislative bodies "in connection with matters concerning the law, the legal system, or the administration of justice," and "in connection with matters about which the judge acquired knowledge or expertise in the course of the judge's legal duties." See also, comment 2 to Rule 2.1, "judges are encouraged to participate in activites that promote public understanding of and confidence in the justice system."

Judges did not create the SAFE-T Act. Five Illinois Supreme Court justices upheld its constitutionality. They did not attest to the wisdom or virtue or utility of the SAFE-T Act, however, because, unless a statute is actually unconstitutional, "The wisdom of the enactment of any law is vested in the discretion of the Legislature, and courts cannot declare the laws invalid because they are unwise or unreasonable." People ex rel. Shultz v. Russel, 294 Ill. 283, 286 (1920).

The SAFE-T Act may usher in a new Golden Age, as the activists and politicians who imagined it insist. It may prove a disaster. Most likely, it will prove not as transformative as its drafters hoped, or as terrible as its detractors feared. Who knows? In raw numbers, pretrial detentions may actually go up without cash bail. But cash bail is not the issue. Public safety is.