(Editor's note: Republican candidate for Illinois Attorney General Tom DeVore held a press conference Sept. 21 in Chicago laying out his legal analysis of the Democrat-backed and controversial SAFE-T Act).
To the issue of bail: Bail merely means the ability for an alleged criminal to be released from jail pending trial. So if an offense is bailable it means that citizens accused of a crime, under certain conditions can be released. If it’s non-bailable, it means that they cannot be released under any circumstances.
The questions around the cash component that they are attempting to eliminate is: should a citizen accused of a crime be required to provide some type of financial security to ensure that they will actually comply with the conditions of release. If they’re let out on their own recognizance, or a promise, it means the court is satisfied that a mere promise to comply is sufficient. If cash is required, it means the court has determined on a case by case basis that some amount of financial security is needed to ensure compliance.
We have a constitutional principle in the Bill of Rights… under Article 1 Section 9, it says that all persons shall be bailable by sufficient sureties - except (and it lists three categories of offenses) capital offenses, offenses for which life imprisonment is possible, and felony offenses for which no probation is possible. So if under the constitutional provision in the Bill of Rights, you have a citizen who is alleged to have committed one of these categories of crimes (which is very small), and the court is convinced that that person poses a threat to the safety of another person or persons, the court can then hold them without bail pending trial.
… The court under certain circumstances has some inherent authority to control the administration of justice. If the judge is convinced, for example, that a citizen accused of a crime is a threat to a witness or a threat to a juror the court can deny bail, even if it’s a bailable offense. So the court has some authority, regardless of whether the offense is bailable or non-bailable. That is the court’s purview.
The problem coming from the SAFE-T Act is that one of the many things that the legislature is trying to accomplish is to create numerous categories within section 6.1 of crimes that THEY say are non-bailable, and determine the conditions for which the court may or may not detain certain persons.
Our legislature - in the SAFE-T Act - is trying to create these categories of new non-bailable offenses that exceed those that the constitution allows. They cannot do that. It is unlawful. It is unconstitutional.
The court is set up to administer justice. The Judiciary gets to determine how that justice is administered. Bail is one of the primary components over which they have inherent authority and constitutional authority. The legislature cannot impede that. They cannot get into the middle of that.
So, when Kwame Raoul - after all of the conversation around this bill over the last three weeks - suggested “we may have to take a look at that… I asked myself - and I ask the people of the state to consider: why now? After almost two years, why is Kwame Raoul just now acknowledging we may have to look at this? Kwame Raoul had an obligation to all people in this state - including citizens accused of a crime - to make sure that our legislature doesn’t unlawfully impede their right under our system of justice.
All of these categories that were created in the SAFE-T Act, beyond those enumerated in the Constitution, are clearly unconstitutional. Yet, Kwame Raoul did nothing for almost two years. He wouldn’t even talk about it. He violated his oath and duty to raise the issue that I am bringing in front of you right now.
The legislature doesn’t have any discretion to define what is and isn’t a bailable offense. It is within the purview of the courts to do under the constitution.