Judge to Rule on Constitutionality of SAFE-T Act by End of Year
Kankakee County State’s Attorney Jim Rowe gestures during arguments over the constitutionality of the controversial SAFE-T Act, which, among other things, ends cash bail in Illinois courts January 1. A Kankakee County judge says he plans to rule on the suit from 67 county prosecutors by the end of the year. (Photo: WLS-TV)
NOTE: This story was originally posted for subscribers only. To receive subscriber-only newsletters and content, click here.
Just 11 days before a new law eliminating cash bail in the state is scheduled to kick in a Kankakee County judge Tuesday heard two hours of arguments on the constitutionality of the so-called SAFE-T Act.
Democratic Kankakee County State’s Attorney Jim Rowe and Democratic Will County State’s Attorney Jim Glasgow filed the first suits challenging the law. Since then, a total of 67 state’s attorneys filed suit and the Supreme Court consolidated all of the suits in to Kankakee County.
Judge Thomas Cunnington heard arguments from Rowe and from Darren Kinkead, an Assistant Attorney General, representing Governor JB Pritzker, Attorney General Kwame Raoul, House Speaker Chris Welch, and Senate President Don Harmon.
Rowe’s suit alleged the law was unconstitutional for six reasons:
The law violates the constitutional rule that all laws must address a single subject.
Eliminating cash bail violates a provision in the state constitution that all defendants have the right to be bailable “by sufficient sureties.”
The legislature violated the Separation of Powers provision in the constitution by overreaching into the judiciary.
The legislation was not properly read into the record on three separate days in the House and Senate.
The way the law is written is so vague it is unconstitutional.
The law violates a 2014 state constitutional amendment laying out the rights of victims of crimes.
Defendants said they didn’t believe the state’s attorneys had true constitutional concerns about the law.
“The real dispute here is a policy dispute, it’s not a legal dispute, it’s a policy dispute. There [are] strong feelings on that side of the room that this is bad policy,” said Kinkead, of the Attorney General’s office. “But, you have to tie the policy to particular constitutional violations to get this court to overturn the act. And that’s what they’ve failed to do.”
Rowe disputed the argument.
“Your honor, the idea that this lawsuit is simply a policy disagreement is absurd. If I could sue Springfield because of a bad idea, we’d do nothing in this courthouse but sue Springfield over bad ideas. This is not about the merits of the law. This is truly about the constitutionality.”
One of the most pointed areas of contention was over the state’s single-issue rule, that a bill or law must relate to one topic instead of piling numerous provisions into an omnibus bill, known as “logrolling.”
“Logrolling means something particular. It means tying together provisions that could not pass on their own so that they will pass. [When] there is a very popular provision and a very unpopular provision, and the only way to get the unpopular provision through is to hitch it to the popular provision,” Kinkead argued. “Plaintiffs have told us that the elimination of monetary bail is deeply unpopular, but they haven’t explained the logrolling nature of the SAFE-T Act. They haven’t told us what provisions of the SAFE-T Act are very popular and, therefore, allowed all these legislators who are apparently opposed to monetary bail elimination to go for it anyway. They haven’t told us what evidence of actual logrolling, as defined by the Illinois Supreme Court, exists.”
Rowe countered the argument that the law did include popular and unpopular provisions.
“I’ll tell you what’s popular. Body cameras, we love ‘em. They protect law enforcement and they protect the rights of the accused,” he said. “Training for police officers. Who could be opposed to that? That’s why they logrolled those things into this bill.”
Defendants also claimed the results of the November election show the SAFE-T Act was politically popular.
“I would also take issue with their assertions that the elimination of cash bail is unpopular,” Kinkead argued. “But, there’s no evidence before this court that it is. To the contrary, your honor, some recent election results suggest very strongly the inference that it’s not.”
Rowe lit into the argument about politics.
“Do you want to know how they won that election? Because they lied about what was in [this law]. They told lies for months and months and months. We told them that that law allowed kidnappers to get out without being held, attempt murderers, gang members with firearms,” Rowe said. “You know what they said? Glasgow was a fearmongerer. That [Kankakee County] Sheriff [Mike] Downey is a fearmongerer, that I’m a fearmongerer. We were telling the truth. And how does the court know that? Because in the 300-pages they just passed in the trailer bill, they just fixed all that.”
Cunnington, Kankakee County’s Chief Judge said he plans to make a ruling by December 28, which could stop the law from taking effect on January 1.
“I would love to have two or three months to parse through this in a little more detail,” the judge said. “It is a monumental task to come up with a decision in that has so many moving parts. Some are more complicated than others and require more thought and more research.”
No matter Cunnington’s ruling, the law is likely to find its way to the state Appellate Court and, potentially, the Illinois Supreme Court.
