SAFE-T Act Violates Victims' Rights, Separation Of Powers, Judge Says

KANKAKEE, IL — With just over 72 hours before a law ending cash bail in Illinois is due to take effect, the chief judge of the 21st Judicial Circuit found it violates the state constitution.

Circuit Judge Thomas Cunnington issued an opinion late Wednesday siding, in part, with state's attorneys from 64 Illinois counties who sued the governor, the attorney general and state legislative leaders over the SAFE-T Act, a package of amendments to the state's criminal justice system that included provisions abolishing monetary bail.

"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," Cunnington said in his ruling.

"Therefore, the court finds that [the SAFE-T Act and its amendment] as they relate only to the pretrial release provisions do violate this separation of powers principle underlying our system of governance by depriving the courts of their inherent authority to administer and control their courtrooms and to set bail," the judge said.

Cunnington's ruling does not apply in the 37 counties that did not sign on to the suit — including Cook, DuPage, Kane and Lake — and may still be overturned by the Illinois Supreme Court.

In the Chicago area, the ruling — which would keep cash bail after Jan. 1 — does apply to Grundy, Kankakee, Kendall, McHenry and Will counties.

County prosecutors had advanced a series of arguments why the bill should be deemed unconstitutional. Cunnington rejected claims that the law violated the state constitution's requirement that bills be limited to a single subject — finding that all its provisions relate, in some way, to the "criminal justice system" — and that the SAFE-T Act was impermissibly vague.

Rejecting another procedural challenge, the judge said that although the "undisputed facts" of the case hold that lawmakers failed to meet the constitution's requirement that laws be read in both legislative chambers on three different days, there was nothing he could do about it. Since both the speaker of the house and the senate president certified that procedural requirements were met, the "enrolled bill doctrine" prevents litigation about whether it met the readings requirement

But as to whether the legislature improperly attempted to amend the Illinois Constitution, the judge found in favor of the prosecutor plaintiffs. In his opinion, Cunnington noted that judges are obligated to declare unconstitutional statutes to be invalid, a duty that cannot be evaded regardless of how desirable the legislation may appear.

"The court finds that had the Legislature wanted to change the provisions in the Constitution regarding eliminating monetary bail as a surety, they should have submitted the question on the ballot to the electorate at a general election and otherwise complied with the requirements of [Article 14, Section 2 of the the Illinois Constitution]," he said.

The judge found that the state's attorneys had standing to sue — a clear interest in the constitutionality of the laws they are tasked with enforcing and a clear injury if they have to enforce an unconstitutional act. Plus, according to the opinion, the government has an interest in criminal defendants showing up for trial, and the portions of the SAFE-T Act dealing with pretrial detention limit a court's ability to detain someone when a judge finds someone will follow through on threats, interfere with jurors or witnesses or fail to appear in court.

"These provisions will likely lead to delays in cases, increased workloads, expenditures of additional funds, and in some cases, an inability to obtain defendant’s appearance in court," the judge ruled. "The court finds that these likely injuries occasioned by the enforcement of an unconstitutional law, are cognizable injuries which provide constitutional standing to plaintiff State’s Attorneys"

Cunnington also found the SAFE-T Act violated the Crime Victim's Rights portion of the constitution, which provides for the "right to have the safety of the victim and the victim's family considered in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction."

By eliminating the option of monetary bail in all circumstances, the act takes away discretion that has been "constitutionally vested to the courts to protect victims and their families," the judge found. With no monetary bail, Cunnington said, "the accompanying discretion accorded to the judge to ensure a defendant’s appearance in court and for the protection of victims and their families has been stripped away in violation of the Illinois Constitution."

Cunnington also found that the prosecutors met their burden of showing it was unconstitutional because an outright legislative ban on monetary bail "clearly violates" the constitution's separation of powers.

"Specifically, because under section 110-1.5 all judges will be categorically prohibited from even considering in their discretion a monetary component to the conditions of release, the judiciary’s inherent authority to set or deny bond will necessarily be infringed in all cases if [the SAFE-T Act and its amendment] become effective," the judge ruled. "This is true even if a judge would ultimately decide not to include a monetary component."

Kankakee County State's Attorney Jim Rowe, who was the lead prosecutor on the consolidated challenge, issued a statement praising the decision.

“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. The Act was a 765-page bill passed during a lame duck session under cover of darkness at 4:00 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," Rowe said.

"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 Kankakee County Democrat continued. "The people of Illinois deserve better than that, and today’s verdict condemns the Act for exactly what it is: unconstitutional.”

Attorney General Kwame Raoul (D-Chicago) pledged to appeal the decision directly to the Illinois Supreme Court in order to "definitive resolve" the challenge to the Pretrial Fairness Act. In a statement, Raoul said Cunnington's ruling was only binding in the consolidated cases — and was not binding in any case involving criminal defendants.

“Most of the SAFE-T Act’s provisions have been in effect for more than a year, and regardless of today’s circuit court decision, all parts of the SAFE-T Act, including the pretrial release portions addressed in the court’s decision, will go into effect Jan 1," Raoul said.

"For instance, the right of individuals awaiting criminal trials — people who have not been convicted of a crime and are presumed innocent — to seek release from jail without having to pay cash bail will go into effect in a few short days, despite the court’s ruling against those provisions," the attorney general said. "Illinois residents in all counties should be aware that the circuit court’s decision has no effect on their ability to exercise their rights that are protected by the SAFE-T Act and the Illinois Constitution.”

Gov. J.B. Pritzker thanked the attorney general for his work on the case and said he looked forward to the state supreme court hearing the appeal as soon as possible.

“Today’s ruling is a setback for the principles we fought to protect through the passage of the SAFE-T Act. The General Assembly and advocates worked to replace an antiquated criminal justice system with a system rooted in equity and fairness," Pritzker said. "We cannot and should not defend a system that fails to keep people safe by allowing those who are a threat to their community the ability to simply buy their way out of jail."

Illinois House Minority Leader Jim Durkin (R-Western Springs) issued a statement describing the ruling as a victory for crime victims and police.

"In order to fix this one-sided, anti-law enforcement, and anti-victim act, it is imperative to have a transparent and substantive negotiation with all interested parties, not just a few stakeholders and political insiders," Durkin said. "The people of the State of Illinois deserve nothing less.”

UPDATE: Illinois Supreme Court Pauses Pretrial Fairness Act, End Of Cash Bail