Illinois law enforcement has recently become a little unruly for the party of unchecked power. What began as exasperated disbelief with the SAFE-T Act has turned into open revolt with the ban on assault-style weapons — with some 80 sheriffs and many state’s attorneys vowing to not enforce the law.
As McHenry County state’s attorney, having witnessed the Illinois General Assembly over the last few years be to the criminal justice system what Kathy Bates is to James Caan in the movie “Misery,” I can certainly appreciate their position. This is especially true for the state’s sheriffs.
Considering the well-known fact that firearms not considered assault weapons, mostly handguns, are responsible for the overwhelming majority of gun violence, this legislation seems meant more to provoke lawful gun owners than promote safety.
We in McHenry County, like much of forgotten Illinois, are exhausted after being forced to wear like an albatross similar kinds of culture-war legislation — elimination of cash bail, abortion expansion, sanctuary immigration — that exhibit contempt for our sincerest convictions. Legislation is advanced by Chicago politicians who project the problems of Chicago onto the rest of the state and then venture forth to Springfield on ideological crusades.
We then must endure our unreservedly self-confident governor who, seeking to curry favor with national pundits, scolded those of us who have bothered to remain in Illinois — though gerrymandered into irrelevance, buckled by taxes and still reeling from unnecessary COVID-19 lockdowns — as bigots in his second inaugural address.
We perceive the numbing hypocrisy of Gov. J.B. Pritzker threatening to “fire” duly elected sheriffs who refuse to enforce his gun legislation while endorsing Cook County State’s Attorney Kim Foxx whose raison d’être appears to be not enforcing laws.
We should not, however, let them deform us as they have done themselves and Illinois.
The importance of the rule of law cannot be overstated. It is a defining feature of our humanity and our collective bulwark against the abyss. Public officials, who are examples of citizenship, should take care when aligning themselves against a law or its enforcement. It is a short trek from a public official vowing to not enforce the law to a resident vowing not to abide by the law.
There should be little disagreement that a public official cannot selectively choose to execute only those laws that he or she regards as good policy. We cannot have fiefdoms in our state where powerful local officials merely select among an assortment of laws.
It’s true that members of law enforcement do not have a statutory duty to “enforce” the law per se. Rather, their statutory duties are generally to keep the peace, maintain public order, prevent crime and make arrests. It is true also that law enforcement has discretion regarding how and to what degree a law is executed. Anyone upon reflection can recognize the need for such discretion.
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After all, rules cannot fully capture justice, which requires fine-grained moral evaluations and distinctions. Giving the destitute mother who steals diapers a break by deferring arrest would be one clear example of discretion appropriately exercised.
A precondition for discretion, however, is choice. A policy prohibiting the enforcement of a law does not lend itself to discretion and becomes a law in itself. The discretion possessed by public officials belongs to individual officials, not an institution, and must be exercised on a case-by-case basis.
Public officials swear to uphold the Illinois and United States constitutions. However, not enforcing a law because one subjectively believes it to be unconstitutional betrays a fundamental misapprehension of constitutional law. A law duly passed by a legislative body is constitutional. It remains constitutional until a court declares it not to be, not before and no matter how convinced one may be of a particular court outcome.
The oath to support and defend the Constitution requires a public official to act within the bounds of our constitutional system. Within our constitutional system, it is the courts, not the individual, that interprets its meaning and determines whether a law is in line with its prerequisites.
In our constitutional system, when an elected official or person disagrees with a law or public policy, their only options are to speak out and organize against the law or sue.
Patrick Kenneally is serving his second term as McHenry County state’s attorney after first being elected in 2016.
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