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The election for Illinois’ attorney general comes at a dramatic legal moment

Democratic Illinois Attorney General Kwame Raoul (left) is facing a challenge from Republican Tom DeVore.

CHICAGO — The attorney general’s race rarely grabs front-page headlines — but experts and advocates across the political spectrum say the position is one of the most essential in the state. In addition to the hot-button issues of crime and criminal justice reform, Illinois’ next attorney general could play a key role in everything from abortion to LGBTQ rights.

Incumbent Kwame Raoul is a former prosecutor, who served as a democratic state senator for 14 years before becoming attorney general in 2019. He will face off in November with republican Tom DeVore, a lawyer who rose to prominence after suing the state over mask mandates in schools.

James Tierney, a lecturer at Harvard Law School and former attorney general of Maine, said attorneys general races are particularly important now, when the U.S. Supreme Court is making decisions that are rapidly changing the legal landscape of the United States.

Tierney said attorneys general have unique authority to make arguments in front of the Supreme Court, and as a lawyer for the people of the state, attorneys general have discretion in how they enforce laws and which cases they pursue.

“This is a dramatic moment in the development of the office of attorney general. Who your attorney general is, is going to significantly impact the lives of all the people of Illinois. They may not know it, but it will,” Tierney said.

But the big changes aren’t only happening on the federal level. Illinois is in the middle of major criminal justice reforms and cities like Chicago continue to battle the stubborn problem of gun violence. As the top law enforcement official, the attorney general will influence how those issues are tackled.

Cash bail

Last year, the Illinois Legislature passed an historical criminal justice bill that made massive changes to how the state tackles everything from police accountability to the rights of people in police custody. But perhaps the most-discussed piece of the bill is the “Pre-Trial Fairness Act,” which ends cash bail in Illinois.

When the law goes into effect in January, people accused of crimes cannot be held in jail because they can’t afford to pay a bail amount. Instead, a person will be detained based on their offense, and a judge’s assessment of their threat to public safety should they be released and the likelihood they would flee.

Advocates for the bill say it will make the criminal justice system more fair and focus decisions around safety instead of money. But detractors say it will release more people from jail while they await trial, putting the public at risk.

Raoul said he supports ending cash bail, but is also open to conversations with legislators about revising some aspects of the SAFE-T Act, for example, adjusting the thresholds for detaining a person as a safety or flight risk. But he said those conversations should not happen through “fear mongering on social media,” referencing a misinformation campaign that has spread online.

DeVore has taken a more hardline stance on the act, making it a cornerstone of his campaign. He said he does not believe that “non-violent offenders” should be given bail amounts they can’t afford, but he does believe bail can play an important role in encouraging someone accused of a violent crime to come back to court. He argues that power should be in the hands of judges and state’s attorneys.

“They see the criminals in their communities and they understand their communities,” DeVore said.

Policing

The SAFE-T Act is not the only criminal justice issue that the attorney general will have power to shape. In 2019, the city of Chicago entered a federal consent decree that mandated massive changes to the Chicago Police Department’s policies and training. That consent decree was a result of a 2017 lawsuit, filed after the U.S. Justice Department found the city had a pattern of violating people’s civil rights. The attorney general remains responsible for reviewing reforms and enforcing the decree if it is violated.

Garien Gatewood, director of the Illinois Justice Project, said that means the attorney general’s race has major implications for police reform in Chicago.

“You’re trying to change an entire culture there, so no matter who’s in the office they’re going to have to play a key role in oversight of CPD, working in conjunction with the independent monitors and trying to keep the pressure on the administration at CPD to move these reforms forward,” Gatewood said.

Raoul has applauded the consent decree and throughout his term, worked on its implementation, calling on the city to continue making changes and working with community stakeholders.

Ed Yohnka, a spokesperson for ACLU Illinois, said whether or not those efforts will continue is an essential part of the attorney general’s race.

“Will there be an attorney general’s office that demands accountability from CPD and from the city of Chicago and demands that policing be constitutional? Or will that process be abandoned?” Yohnka said.

Despite repeated emails, DeVore declined to comment on his position on the consent decree, and how he would work on it going forward.

Abortion

In June of 2022, the U.S. Supreme Court overturned Roe v. Wade, ending the constitutional right to abortion, which had been in place for nearly 50 years. The decision leaves the power to outlaw abortion to each state and Illinois has strong laws on the books protecting abortion access, which are unlikley to change. But as people from surrounding states cross borders to receive abortions, the state’s attorney general could play a big role in protecting out-of-state patients and in-state providers from laws in other states. The two candidates are likely to take different approaches to how they tackle that largely uncharted territory.

Raoul supported the 2019 Illinois Reproductive Health Act, which made reproductive decisions a fundamental right in the state and he sent a memo to law enforcement across the state explaining Illinois law protects the right to terminate a pregnancy. He said as there is an increase in the number of people coming to Illinois for abortions, he is working with legal experts to ensure that both patients and providers are protected from “backward extremist laws that are being passed in other states.”

As for DeVore, after reading a draft of the Supreme Court decision that overturned Roe, he wrote on Facebook, “It’ll bring tears to your eyes as it returns the power of such an important matter back to the states and their people.”

As a supporter of “state rights,” DeVore said he believes Illinois law creates a fundamental right for abortion, and said that was the law he’d protect. But when asked how he would react if other states tried to restrict people coming from other states to Illinois for abotions, he said it was a “complicated conversation” and did not offer a direct answer.

He has repeatedly said he did not think abortion was a key issue in the race.

But both pro- and anti- abortion rights advocates disagree and say they will be watching the race closely. Advocates from both sides said Illinois, as one of the only places people can get abortions in the Midwest, will be playing a huge role on the national stage.

“We’re very much in uncharted territory here….no one really knows what’s going to happen,” Tierney said.

LGBTQ rights

The Dobbs decision, which overturned Roe, could have far-reaching implications for other issues — including LGBTQ rights. For example, the same kinds of state laws that could make it difficult for people to cross state lines to obtain abortions could also make it difficult for people to travel across state borders for gender-affirming care.

Under Raoul’s leadership, the attorney general’s office defended a transgender woman’s right to access a women’s bathroom while working at Hobby Lobby and signed onto briefs against the so-called “Don’t Say Gay” law in Florida. Raoul said he would continue to take on the issue of LGBTQ rights.

DeVore did not respond to a request for an interview, or answer emailed questions about how he would handle the issue of LGBTQ rights. But he has worked to help parents “opt out” of a state sex education intiative that teaches children about sexual orientation and gender identity and accepted an award from Awake Illinois, which protested storytelling events with drag queens at public libraries.

Legal experts said the makeup of the Supreme Court has opened up the possibilities to changes far beyond just LGBTQ rights and abortion — including affirmative action, labor laws and fair elections.

“The whole concept of our federal government is being reworked … people are turning to the states and not the federal government. So who your attorney general is, is of critical importance,” Tierney said.

Shannon Heffernan is a reporter on WBEZ’s criminal justice desk. Follow her @shannon_h.

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Illinois Newsroom gets stories from public radio stations from across the state, including WBEZ-Chicago, WCBU-Peoria, WGLT-Normal, WVIK-Rock Island, WIUM-Macomb, WNIJ-DeKalb, WSIU-Carbondale, WUIS-Springfield, and St. Louis Public Radio.

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