Saying Illinois’ Democratic leadership in Springfield illegally attempted to rewrite the state constitution and trampled on the authority of judges to protect crime victims, a Kankakee County judge has declared the law that would eliminate cash bail across Illinois to be unconstitutional.
Late in the evening of Dec. 28, Kankakee County Circuit Court Chief Judge Thomas Cunnington delivered the much-anticipated ruling, which will be quickly ticketed for a date with the Democrat-dominated Illinois Supreme Court.
For the moment, however, the ruling will mean judges can still require criminal defendants to post money bond in the 64 counties served by state’s attorneys that joined in the lawsuit challenging the constitutionality of the sprawling, controversial criminal justice reform law, commonly known as the SAFE-T Act.
From left: Illinois Attorney General Kwame Raoul and Gov. JB Pritzker
“Because, as the Illinois Supreme Court has determined, the administration of the justice system is an inherent power of the courts upon which the legislature may not infringe and the setting of bail falls within that administrative power, the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat,” Judge Cunnington wrote in his decision.
So, the judge determined, the sections of the SAFE-T Act, which would eliminate cash bail statewide, are unconstitutional trespasses by state lawmakers and the governor upon the authority of the courts, under the state constitution’s separation of powers, and violates rights for criminal defendants and crime victims, alike.
The ruling comes eight days after Cunnington heard arguments presented by Kankakee County State’s Attorney Jim Rowe and Will County State’s Attorney James Glasgow against the law, and the Illinois Attorney General’s office in defense of the SAFE-T Act’s bail elimination provisions.
While the state’s attorneys presented a range of challenges to the law, the dispute ultimately came down to the question of whether the state’s Democratic supermajority ramrodded through a law that, in abolishing bail, unconstitutionally rewrote Illinois’ state constitution, trampling the rights of criminal defendants and crime victims and unconstitutionally intruding on authority legally given to the courts, in the process.
The legal challenges to the law landed in court this fall, with just weeks to go before the SAFE-T Act would make Illinois the first state in the country to forbid judges from forcing criminal defendants to pay cash bail to be released from jail while they await trial.
The 764-page SAFE-T Act was passed into law quickly in January 2021, with the strong support of Pritzker and his fellow Illinois Democrats.
The law touched on virtually every aspect of law enforcement and criminal law in Illinois. Perhaps most notably, however, the law would have abolished cash bail in Illinois.
In its place, the law would create a system under which criminal defendants are presumed to be allowed to go free while they await trial, unless they are charged with a crime from a select list, or if a judge determines their continued freedom presents a clear threat or that they are highly likely to try to flee to avoid trial.
The law also generally forbids judges in Illinois from holding a criminal defendant for more than 90 days, as they await trial.
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.
Opponents, however, say the elimination of bail will empty jails and allow criminals, even violent criminals, to roam free and continue to commit crime and hurt people as they await trial on other charges.
While 64 state’s attorneys filed suit, 100 Illinois state’s attorneys have spoken out against the abolition of cash bail, saying they believe it will make all but impossible for the courts to ensure many criminal defendants – particularly, those who have committed particularly heinous crimes or who have shown particular disregard for the law – return to court to stand trial.
The lawsuits were consolidated by the Illinois Supreme Court into a single action, to be heard in Kankakee County court, where State’s Attorney Rowe was the first to file suit.
Attorneys for both sides filed briefs in November, each asking Judge Cunnington to grant them summary judgment, or a quick written decision based solely on legal arguments in place of a trial.
During the hearing, Rowe asserted the elimination of cash bail violated the constitution’s separation of powers, allowing legislators to “place their hand on the gavel” of judges statewide.
And Rowe repeated the state’s attorneys’ arguments that elimination of cash bail effectively illegally amends the state constitution, ignoring the state constitution’s language that all Illinoisans “shall be bailable with sufficient sureties.”
Rowe argued this language guarantees criminal defendants the right to seek money bail and the power to courts to set bail.
Further, Rowe argued other language in the constitution, guaranteeing certain rights to crime victims, also requires judges to take crime victims into consideration when setting or denying bail.
By simply eliminating cash bail altogether, Rowe said the law illegally ignores and overlooks that language and violates the courts’ powers.
The attorney general argued state’s attorneys have misinterpreted the constitution. Lawyers for the state argued the right to bail is meant solely to generally allow criminal defendants to remain free while they await trial.
In his ruling, however, Judge Cunnington said it is the attorney general and state lawmakers who misunderstand why bail is established in the state constitution, and has been a component of the American criminal justice system from the beginning.
Echoing the state’s attorneys’ arguments, the judge wrote: “Bail exists, as it has for centuries, to balance a defendant’s rights with the requirements of the criminal justice system, assuring the defendant’s presence at trial, and the protection of the public,” Cunnington wrote.
Further, the judge noted the state defendants had no persuasive answer to the charge that the SAFE-T Act unconstitutionally strips courts of their authority under the state constitution to set or deny bail to criminal defendants and to protect crime victims, as required by the constitution’s Crime Victims Bill of Rights.
The state constitution, Cunnington wrote, “explicitly provides that ‘the safety of the victim and the victim’s family’ must be considered ‘in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and upon conviction,’” Cunnington wrote.
“The plain reading of ‘fixing the amount of bail’, the court finds, clearly refers to the requirement that the court consider the victims’ rights in setting the amount of monetary bail as the court does and has done since the passage of this amendment. In eliminating monetary bail, the discretion constitutionally vested to the courts to protect victims and their families by this method is gone,” the judge wrote.
Illinois Attorney General Kwame Raoul vowed a quick appeal of the decision to the Illinois Supreme Court.
He also noted he did not believe the ruling would apply to any counties whose state’s attorneys didn’t join in the lawsuit. In the Chicago area, this includes the heavily populated counties of Cook, Kane, Lake and DuPage.
The Cook County and Lake County state’s attorneys, who are both progressive Democrats, have praised the SAFE-T Act.
The state’s attorneys of Kane and DuPage counties have criticized the law, but opted not to join with their colleagues’ lawsuits.
Kankakee County State’s Attorney Jim Rowe praised the decision in a press release.
“Today’s ruling affirms that we are still a government of the people, and that the Constitutional protections afforded to the citizens of Illinois – most importantly the right to exercise our voice with our vote – are inalienable,” Rowe said in a prepared statement.
“The Act was a 765 page bill passed during a lame duck session under cover of darkness at 4 a.m., affording legislators less than one hour to read it and vote on it, and denying the general public any opportunity to offer comment or input. It amended the State Constitution and eroded the constitutional protections of the Victim Rights Act, all while disenfranchising the people of their Constitutional right to vote on such reforms. The people of Illinois deserve better than that, and today’s verdict condemns the Act for exactly what it is:
Unconstitutional,” Rowe said.