In the wake of a Kankakee County judge’s decision declaring Illinois’ elimination of cash bail unconstitutional, judges in other downstate counties have entered temporary restraining orders, blocking the bail provisions of the so-called SAFE-T Act from taking effect in their counties.
Meanwhile, Democratic officials in Cook County, backed by the state’s most powerful elected officials, have pledged to move forward with the elimination of cash bail, as written in the law, as if the decision of Kankakee County Judge Thomas Cunnington declaring such actions unconstitutional had not occurred, because they believe the ruling does not apply to them.
Against such a backdrop of brewing chaos, two suburban Chicago prosecutors, Republican DuPage County State’s Attorney Robert Berlin and Democrat Kane County State’s Attorney Jamie Mosser, have asked the Illinois Supreme Court to step in and issue an order one or the other, to provide one standard statewide, while the constitutional challenge to the law plays out.
From left: Kankakee County State's Attorney Jim Rowe and Will County State's Attorney James Glasgow
| www.k3sao.com/; willcountysao.com/
On Dec. 30, Berlin and Mosser together announced they had filed an emergency motion with the Illinois Supreme Court for a supervisory order “seeking clarification regarding implementation” of the SAFE-T Act’s provisions slated to eliminate cash bail in much of the state on Jan. 1.
“Specifically, the Motion asks the Supreme Court to ‘exercise its supervisory authority to enter an order sufficient to maintain consistent pretrial procedures because without such an order, defendants in different jurisdictions will be subject to different treatment upon arrest and throughout pretrial proceedings, creating an equal protection problem for citizens across the State,’” Berlin and Mosser stated in their release.
The motion comes two days after Judge Cunnington declared the Democratic supermajority in the Illinois General Assembly and their Democratic ally, Gov. JB Pritzker, illegally rewrote the Illinois state constitution, trespassing on the constitutional powers granted to the courts and trampling the rights of criminal defendants and crime victims alike, in passing sweeping criminal justice reforms forbidding courts from deciding whether criminal defendants should be required to post bond to be released from custody while they await trial.
Cunnington’s decision was a win for 64 county state’s attorneys and sheriffs who had filed suit this fall against the state, arguing state lawmakers and the governor had overstepped the bounds of their power in eliminating cash bail without properly amending the state constitution.
Supporters of those provisions have argued the elimination of cash bail is needed to restore balance to the state’s criminal justice system, which they argue has been marred by systemic racial discrimination. Proponents of bail elimination 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.
In lawsuits challenging the elimination of cash bail, the state’s attorneys and sheriffs argued the state constitution not only guarantees criminal defendants the right to ask for bail, but also gives courts the responsibility to balance the rights of those charged with crimes against the interests of the people in keeping communities and crime victims safe, and ensuring criminal defendants ultimately return to court to stand trial for their alleged crimes.
Judge Cunnington agreed with the state’s attorneys on those points, declaring the sections of the SAFE-T Act that would have eliminated cash bail statewide to be unconstitutional.
The judge, however, did not issue an injunction directly applying the ruling to all 102 Illinois counties.
Without such an order, Illinois Attorney General Kwame Raoul said he believed the ruling can only apply to the 64 counties that joined in the legal challenges, led by Kankakee County State’s Attorney Jim Rowe and Will County State’s Attorney James Glasgow, among others.
Raoul also vowed a quick appeal to the Illinois Supreme Court. His office filed a notice of appeal in Kankakee County court on Dec. 30, seeking to overturn Judge Cunnington’s ruling. A spokesperson for his office indicated the Attorney General intended to ask for an expedited briefing schedule during the first week of January, when the Attorney General is expected to file formal briefs with the state high court.
In the meantime, however, other judges in other downstate counties that did not join the legal challenge issued orders, declaring cash bail will not be eliminated in their counties, pending action by the Illinois Supreme Court.
According to Facebook posts from Kankakee State’s Attorney Rowe, judges in the counties of Pike, Henry, Whiteside, Rock Island and Menard counties all issued orders on Dec. 30 blocking the elimination of cash bail in their counties. The orders relied on Cunnington’s legal reasoning.
Rowe praised the actions of his fellow state’s attorneys and the sheriffs in those counties, to seek such orders.
“… There are now at least 70 out of 102 counties who have taken steps to protect the Constitutional rights of their citizens and prevent the implementation of an unconstitutional act,” Rowe said in a Facebook post he published late in the evening on Dec. 30.
Attorney General Raoul, however, blasted the rulings as “11th hour theatrics” and “an abuse of the judicial process.” Raoul noted the SAFE-T Act was approved in January 2021, and those other state’s attorneys and sheriffs could also have joined in the larger legal challenge with Rowe and others of their colleagues, but opted to wait until two days before the cash bail elimination provision was set to take effect.
Rowe, in turn, criticized Raoul’s statement.
“We believe the ruling is clear and our position is consistent,” Rowe wrote on Facebook. “The ruling that the SAFE-T Act’s pre-trial release and bail amendments are unconstitutional applies to the 64 counties that were original parties to the lawsuit.
“The counties now seeking (temporary restraining orders) are well within their right to do so,” Rowe said.
Berlin and Mosser, the state’s attorneys of DuPage and Kane counties, said they believe the state Supreme Court needs to step in to provide a clear order giving direction to the courts for the immediate future concerning the state’s cash bail system.
DuPage County is the state’s second largest county by population, and Kane County, the fifth largest.
Berlin and Mosser have criticized the SAFE-T Act, but have also worked with state lawmakers to craft amendments to the law they said have fixed some of the flaws in the law. They did not join their 64 colleagues’ lawsuit against the state.