Elimination Of Cash Bail In SAFE-T Act Ruled 'Unconstitutional': Judge

KANKAKEE, IL — A Kankakee County judge has ruled portions of the SAFE-T Act to be unconstitutional, specifically the elimination of cash bail, which is set to go into effect on New Year’s Day.

Circuit Judge Thomas Cunnington heard oral arguments last week in a consolidated civil lawsuit filed by more than half of the state's 102 county prosecutors. The judge’s ruling on Wednesday means that the end of cash bail, included in the SAFE-T Act, will not take effect in 65 counties on Jan. 1.

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

The state's attorneys argue the SAFE-T Act — a 764-page bill that was first passed in the final hours of a January 2021 lame duck session and was modified with a 308-page amendment introduced and approved in days during the veto session earlier this month — violates the Illinois Constitution.

Other provisions, such as police body cams and law enforcement training, were upheld.
Cunnington ruled the SAFE-T Act was unconstitutional in that it violated the Victims Rights Act, and unconstitutionally amended the state constitution and violated voters rights.

In his ruling, the judge found that “had the legislature wanted to change the provisions in the Constitution regarding eliminating monetary bail … they should have submitted the question on a ballot to the electorate at a general election.”

Should the defendants — Gov. J.B. Pritzker, Attorney General Kwame Raoul, Senate President Donald Harmon and House Speaker Christopher Welch — opt to appeal the state court ruling, it must be filed with the Illinois Supreme Court.

The bill eliminates cash bail and replaces it with an offense-based system of pretrial detention. People who are charged with certain serious crimes and deemed too dangerous to allow for pretrial release, or likely to flee, may still be jailed under the system.

Critics of the cash bail system say it disproportionately harms poor people, giving an advantage to those who are rich and guilty over those who are innocent and less wealthy.

Cunnington is chief judge of the 21st Judicial Circuit, which is made up of Kankakee and Iroquois counties. He reportedly said he aims to issue an opinion in the case by Wednesday — four days before the end of cash bail statewide.

“I wish I had two to three months," Cunnington said after hearing oral arguments Dec. 20, the News-Gazette reported.

Suits filed by Kankakee County State's Attorney Jim Rowe and Will County State's Attorney James Glasgow this fall were among the more than 60 combined into one by the Illinois Supreme Court in October.

The complaints asked a judge to find that the act did one of the following:

• violates the Crime Victim's Bill of Rights Article 1, Section 8.1 of the Illinois Constitution
• violates the bail provision in Article 1, Section 9 of the Illinois Constitution
• is an unconstitutional violation of the "single subject rule"
• is an unconstitutional violation of the separation of powers doctrine regarding bail, and is void due to vagueness
• must be declared unconstitutional and repealed because it was passed without three readings on separate days;

Attorneys arguing on behalf of Illinois' governor, attorney general, House speaker and state Senate leader said state's attorneys and sheriffs do not have standing to challenge the pretrial release provisions of the SAFE-T Act because they have no role enforcing them, and they do not injure them.

Because the act's provisions of government pretrial release are enforced by individual judges in criminal cases, that is the proper venue to hear constitutional challenges, they argued in pretrial motions.

During oral arguments, Darren Kinkead, deputy special litigation bureau chief at the Illinois attorney general's office, told the judge the constitutional right to bail at issue belongs to criminal defendants, not law enforcement officials.

“The real dispute here is a policy dispute, not a legal dispute,” Kinkead said, according to the Associated Press.

Read more:
SAFE-T Act Amendment Filed In Final Days Of 2022 Veto Session
Gov. Pritzker Signs SAFE-T Act Amendment Expanding 'Detention Net'
Safe-T-Act Lawsuit: Glasgow Wants To Stop Controversial Measure