More than half of Illinois’ elected county prosecutors have stepped forward in court to seek to block a law, strongly supported by Gov. JB Pritzker and other prominent Illinois Democrats, that would end cash bail from taking effect, as the local state’s attorneys say the law will tie the hands of judges to keep people accused of violent crimes in jail as the accused await trial.
And the lawsuits filed by 57 of the state’s 102 state’s attorneys against the so-called SAFE-T Act will now be combined into one action, to be heard first by a judge in Kankakee County.
In mid-September, Kankakee County State’s Attorney James Rowe filed suit in his county’s court, challenging the constitutionality of the controversial law. Since then, 56 of Rowe’s colleagues throughout Illinois, both Republicans and Democrats, have filed similar challenges, asserting the SAFE-T Act violates the Illinois state constitution in multiple ways and must be barred from taking full effect, as is scheduled for Jan. 1.
In the Chicago area, the law has also been challenged in court by Will County State’s Attorney James Glasgow, a Democrat, and his Republican colleagues, McHenry County State’s Attorney Patrick Kenneally and Kendall County State's Attorney Eric Weis. Other local state’s attorneys, including Democratic Kane County State’s Attorney Jamie Mosser and Republican DuPage County State’s Attorney Bob Berlin have spoken out against the law, but have not yet filed suit.
The law is supported by progressive Democrats Cook County State’s Attorney Kim Foxx and Lake County State’s Attorney Eric Rinehart.
The lawsuits have centered on a provision that would eliminate cash bail statewide when the calendar flips to 2023.
The SAFE-T Act is the named assigned to the more than 700-page legislation passed into law quickly by Illinois’ Democrat-dominated General Assembly within a matter of hours near the end of a legislative session in Springfield in January 2021. Pritzker quickly signed the measure into law.
The law was backed strongly by left-wing progressive politicians in Springfield, led by State Sen. Elgie Sims, D-Chicago, and other members of the General Assembly’s Black Caucus.
The law touched on virtually every aspect of law enforcement and criminal justice in Illinois. Principally, however, the law abolished cash bail in Illinois, making the first state in the country to do so.
That provision had long been a progressive dream, but was made possible by the political tailwinds generated by the massive public outcry following the death of George Floyd in 2020.
Supporters of the law say that change in the law is needed to address systemic racial discrimination. They assert the cash bail system has particularly harmed Black and Latino populations, by forcing people of color who come from low income households and have been charged with crimes to remain in jail while they wait months or years for their case to be sent to trial.
The SAFE-T Act has been amended three times to fix perceived deficiencies in the quickly enacted legislation, and Pritzker and other Democratic leaders have indicated more changes will be coming soon. To date, however, Pritzker and other Democratic leaders have not publicly discussed which parts of the law they may be seeking to change. Sims and other staunch progressives in Springfield have pledged to resist efforts to revise the law this fall, before it takes effect.
Pritzker and other prominent Illinois Democrats have steadfastly defended the decision to eliminate cash bail.
SAFE-T Act violates constitutional rights?
Supporters of the law, notably including Rinehart, have claimed the law will improve public safety, by blocking the ability of violent criminals to get out of jail on bail while they await trial.
Critics, including law enforcement agencies and representatives and nearly all of Illinois’ state’s attorneys, say the opposite will happen.
They point to provisions in the law which presume that the vast majority of criminal defendants cannot be held before trial. The only exception would be for cases in which prosecutors can manage to present evidence within 48 hours of charges being filed, that a criminal defendant “poses a specific, real and present threat to a person, or has a high likelihood of willful flight.”
Otherwise, under the law, those charged with offenses for which they might receive probation will most likely be allowed to remain free, pending trial and sentencing.
The law also generally forbids police from holding people in jail for most charges that are not included on a specific list of so-called “forcible felonies,” which include first and second degree murder, criminal sexual assault, robbery, arson, burglary, kidnapping and aggravated battery, among others.
Glasgow and others have said this would mean that, on Jan. 1, county jails would be largely emptied, as prosecutors and police would be unable to hold a large number of people who are now charged with crimes, and are being held in jail pending trial.
In their legal challenges, the state’s attorneys have said the SAFE-T Act is unconstitutional, under Illinois’ state constitution.
The lawsuits generally assert the law violates language in the state constitution that guarantees people charged with crimes the right to attempt to secure bail, and that guarantees crime victims that their safety will be taken into account when setting bail.
Further, they say the way the law was enacted violates rules set in the state constitution to govern the passage of legislation.
The state’s attorneys each filed in their lawsuits in their own counties.
However, on Oct. 31, the Illinois Supreme Court granted a request to consolidate all 58 of the state’s attorneys’ lawsuits into a single action in Kankakee County, the first county in which the lawsuits were filed.
The judge
According to Kankakee County court records, Kankakee County Circuit Chief Judge Thomas W. Cunnington assigned the case to himself on Oct. 27.
Cunnington was elected by his colleagues to the chief judge post in late 2021.
Cunnington, a former assistant state’s attorney and former alderman in the city of Kankakee, has served as a judge since 2011, when he was appointed as an associate judge. He was elected as a circuit judge in December 2018. In that race, Cunnington ran in the Republican Party primary.
The case had previously been assigned to Kankakee Circuit Judge Lindsay Parkhurst, a former Republican state lawmaker who had served in the Illinois State House of Representatives from 2017-2020.
Parkhurst had opted not to seek reelection in 2020, instead choosing to run unopposed for judge.
Democrat lawyers
The legal challenges have drawn massive public interest, with the fate of Illinois’ sweeping criminal justice reform law hanging in the balance.
In a statement posted to Facebook, Rowe said attorneys from his office would be leading the case, together with attorneys dispatched from six other counties. These include state’s attorney’s offices from Will County; McHenry County; Kendall County; Sangamon County; and Vermilion County.
“Each county has put a tremendous amount of work into the process thus far and we all look forward to collectively representing the People of the State of Illinois,” Rowe said in his Facebook statement.
“These are important issues and we are happy to be part of the team addressing them in court.”
Defendants named in the lawsuits include Pritzker and his Democratic allies, State House Speaker Emanuel “Chris” Welch, D-Hillside, and State Senate President Don Harmon, D-Oak Park.
The defense of the law appears to be led by attorney Michael Kasper, a longtime top Democratic lawyer.
Kasper has a deep and consequential history in Illinois politics. He has served as general counsel for the Illinois Democratic Party and as attorney for former House Speaker and former Illinois Democratic Party Chairman Michael Madigan.
Kasper also spearheaded the legal attack on the efforts to amend the Illinois state constitution to reform the method by which the state draws legislative districts every 10 years, a process dominated once again in 2020 and 2021 by Welch, as Madigan’s successor, and Harmon and their Democratic allies.
As an elections lawyer, Kasper regularly represents the Democratic Party’s interests in getting candidates for office on the ballot, or in getting candidates removed.
Kasper also at times is hired and appointed to help the state’s Democratic officials defend against challenges that threaten policies, regulations or laws important to the state’s Democratic leadership.
In the Kankakee challenge to the SAFE-T Act, Kasper secured the transfer of the case away from Judge Parkhurst.
Harmon is being represented in the case by attorney Luke Casson, a fellow Oak Lawn Democrat.
Casson is a founding partner of the Chicago law firm of Andreou & Casson. In recent months, Casson has founded and led the All for Justice committee, which has raised millions of dollars from trial lawyers, labor unions and other progressive interests, to support the election of two suburban Democrats to the Illinois Supreme Court.
The committee has run a blitz of ads in recent weeks blasting Republican Supreme Court candidates, former Lake County Sheriff Mark Curran and current Illinois Supreme Court Justice Michael Burke.