The Illinois Supreme Court will wait until at least March to decide if a Kankakee judge was correct in determining Illinois Democrats illegally rewrote the state constitution, stepping on the constitutional authority of the courts and the rights of criminal defendants and victims alike, when they passed a law outlawing cash bail across the state.
On Jan. 4, the state high court issued an order setting the calendar for hearing arguments in the fight to determine the fate of the bail elimination provisions contained with the controversial sweeping criminal justice reform package known as the SAFE-T Act.
Under the order, the court has directed lawyers on both sides to present written arguments from Jan. 26 to Feb. 23.
Oral arguments would then be scheduled during the state Supreme Court’s March term.
The order does not indicate when a decision in the matter might follow.
The elimination of cash bail has been on hold statewide since Dec. 31, when the Supreme Court granted a motion by the state’s attorneys of Kane and DuPage counties for an order keeping the current system for handling criminal defendants before they stand trial.
The state’s attorneys sought that order to prevent confusion and potential chaos across Illinois, after Democratic officials in Cook County and elsewhere indicated the state would move ahead with eliminating cash bail in many of the state’s most , even after Kankakee County Judge Thomas Cunnington ruled those provisions of the SAFE-T Act were unconstitutional.
Led by Attorney General Kwame Raoul and Gov. JB Pritzker, those officials indicated they believed the judge’s decision not to award a statewide injunction meant Cunnington’s ruling should only apply in 64 Illinois counties that had joined in a lawsuit challenging the law.
That interpretation would have meant some of the state’s most populous counties, including Cook, DuPage, Lake and Kane counties, would have moved forward with the elimination of cash bail, while other counties, including Will, Kendall, McHenry and Kankakee counties, would have continued to have the historic cash bail system in place, on Jan. 1, the date set by the SAFE-T Act for the elimination of cash bail statewide.
Under that reasoning, the people of Illinois faced a chaotic prospect under which different criminal defendants could enjoy different rights or face different pretrial detention rules, depending on the county in which they were criminally charged.
At the same time, as the Jan. 1 deadline neared, a handful of other downstate counties won court orders from their local judges slapping a temporary restraining order, preserving cash bail in their county courts, until the Supreme Court should rule. In those orders, judges cited Cunnington’s ruling. They agreed no county should move forward with eliminating cash bail after a judge declared the law unconstitutional.
Raoul reacted to those rulings harshly, calling them “11th hour theatrics” and “abuse of the judicial system.”
The Illinois Supreme Court’s New Year’s Eve order put a halt to the confusion and potential chaos, and preserved the longstanding system statewide until the high court could address the matter.
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 first properly amending the state constitution.
Supporters of the abolition of cash bail have argued the reforms will 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 a hearing before Judge Cunnington in late December, Raoul’s office asserted the state’s attorneys’ lawsuit was nothing more than a disagreement over policy.
The state’s attorneys, led by Kankakee County State’s Attorney Jim Rowe and Will County State’s Attorney James Glasgow, however, argued the state constitution guarantees a right to bail, designed to both protect criminal defendants from unlawfully being held in jail indefinitely before trial, and to protect society and crime victims from dangerous criminals, who may need to be forced to return to court to stand trial.
And they argued the bail language in the constitution cannot be ignored nor rewritten, without passing a constitutional amendment doing so.
Otherwise, they argued, the state’s legislature and chief executive are illegally stripping constitutional authority from the courts to set or deny bail for accused criminal defendants.
Judge Cunnington agreed with those arguments in declaring the bail elimination provisions of the SAFE-T Act unconstitutional.
Because the judge declared the state law unconstitutional, the matter advanced directly to the Illinois Supreme Court, bypassing appellate review.