The Illinois Supreme Court has slapped a hold on the elimination of cash bail in Illinois, giving time for the state high court to hear an appeal of a Kankakee County judge’s ruling declaring the state’s Democratic supermajority ignored the state constitution and illegally stripped authority from the courts when they enacted the controversial criminal justice reform law package known as the SAFE-T Act.
On Dec. 31, with just hours remaining before the New Year and the scheduled end of cash bail in most of the state’s most heavily populated counties, the state Supreme Court granted a supervisory order sought by the state’s attorneys of DuPage and Kane counties to create a single standard statewide for the time being.
In the order, the high court said the order is intended “to maintain consistent pretrial procedures throughout Illinois.” The court declared the bail elimination provisions contained in the SAFE-T Act is stayed and will remain on hold while appellate proceedings continue.
The order is a blow to the state’s Democratic leadership, and particularly Democratic elected officials in Cook County, who had indicated their intention to ignore the ruling from Kankakee County Judge Thomas Cunnington.
On Dec. 28, Cunnington had issued a ruling declaring the SAFE-T Act’s bail provisions unconstitutional.
However, since the ruling did not include a statewide injunction, Attorney General Kwame Raoul and his fellow Cook County Democrats declared they did not believe the ruling should apply to Chicago or Cook County, or any Illinois counties whose state’s attorney or sheriff were not among the 64 counties that sued to challenge the constitutionality of the law.
That reasoning would have resulted in a patchwork of bail laws in place beginning Jan. 1. Even in the Chicago area, the counties of McHenry, Will and Kendall would have been allowed to maintain the current historical cash bail bond system for criminal defendants, while the counties of Cook, DuPage, Lake and Kane would have taken the power to set bail away from their judges.
In his ruling, Judge Cunnington declared Democratic lawmakers and Democrat 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.
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.
Raoul, whose office is defending the law, vowed a quick appeal. He filed his notice of appeal in Kankakee County Circuit Court on Dec. 30, and his office indicated the Attorney General intended to file briefs supporting his appeal next week.
Raoul decried those court actions as “11th hour theatrics” and “an abuse of the judicial process.”
Kankakee County State’s Attorney Jim Rowe, who led the legal challenge to the SAFE-T Act, criticized Raoul in turn, saying: The counties now seeking (temporary restraining orders) are well within their right to do so.”
Against this backdrop of confusion, created by Judge Cunnington’s ruling and fanned by the refusal of leading elected Democrats to agree to put the law on hold while the appeal plays out, DuPage County Robert Berlin and Kane County State’s Attorney Jamie Mosser joined together to ask the state Supreme Court to restore order.
The state Supreme Court granted that request, agreeing to put the law on hold to give both sides the proper time to argue the matter before the state Supreme Court without chaos ensuing.
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.