Judge Rules Cash Bail Elimination Unconstitutional
Inmates at the Lake County Jail in Waukegan.
We received the order from Kankakee County Judge Thomas Cunnington just before 10 CT Tuesday night that he was declaring the Pretrial Fairness Act portion of the SAFE-T Act unconstitutional.
Cunnington’s ruling rejected most of the arguments made by Kankakee County State's Attorney Jim Rowe, but agreed the law violated the precedence for Separation of Powers in the Illinois Constitution of 1970.
What is essentially cash bail is written into the constitution (Article I, Section 9) is at issue:
All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person.
The judge is ruling that to eliminate cash bail, voters needed to do so via constitutional amendment, not via legislative action.
Rowe, a Democrat, celebrated the ruling in a statement.
“Today's ruling affirms that we are still a government of the people, and the constitutional protections afforded to the citizens of Illinois, most importantly the right to exercise our voice with our vote, are inalienable,” Rowe said. “[The law] amended the state constitution and eroded the constitutional protections of the Victims Rights Act, all while disenfranchising the people of their constitutional right to vote on such reforms.”
What happens next is where things get confusing.
The ruling (unless there's an emergency appeal, more on that in a moment) enjoins the 65 counties that were a part of the suit, meaning cash bail will still be in effect in Kankakee and Kendall and Madison and Adams counties (among others) on Wednesday.
What it means for the other 37 (including Cook, DeKalb, and Lake) is a lot less clear. A top source told us last night the decision will likely wind up in the hands of the chief judge in each circuit that isn't part of the suit. Some prosecutors we spoke to say they are ready to go forward to eliminate bail or the counties can wait to switch the system while waiting for the state Supreme Court to get involved.
In a statement Tuesday night, Attorney General Kwame Raoul said defendants, including Governor JB Pritzker, will ask the Supreme Court to address the issue as soon as possible.
“Most of the SAFE-T Act’s provisions have been in effect for more than a year, and regardless of today’s circuit court decision, all parts of the SAFE-T Act, including the pretrial release portions addressed in the court’s decision, will go into effect Jan 1,” Raoul said. “Illinois residents in all counties should be aware that the circuit court’s decision has no effect on their ability to exercise their rights that are protected by the SAFE-T Act and the Illinois Constitution.”
Gov. JB Pritzker called the ruling a “setback.”
“The General Assembly and advocates worked to replace an antiquated criminal justice system with a system rooted in equity and fairness,” Pritzker said. “We cannot and should not defend a system that fails to keep people safe by allowing those who are a threat to their community the ability to simply buy their way out of jail.”
The Supremes could, in theory, take the initial court ruling and expand it to all 102 counties before courts open up next week. Delaying the implementation would put the entire state on the same footing. Under the ruling now, crimes committed in the Will County half of Plainfield would have different court systems and requirements than on the DuPage County side of Plainfield, for instance.
This will likely be a question court systems all around the state will be trying to interpret.