Cash bail provision in Illinois SAFE-T Act ruled unconstitutional

A Kankakee County judge has found that a key provision of Illinois’ sweeping criminal justice law is unconstitutional, potentially rolling back a controversial measure that would eliminate the use of cash bail as of New Year’s Day, according to a copy of the judge’s ruling obtained by the Tribune.

The judge’s ruling affects only the pretrial release provisions of the law, known as the SAFE-T ACT, leaving all other measures intact. Judge Thomas Cunnington is expected to file his ruling Thursday morning.

Cunnington’s decision stems from a lawsuit filed by about 60 State’s Attorney’s across Illinois. The ruling states that Gov. J.B. Pritzker and the Illinois General Assembly violated the separation of powers section of the Illinois Constitution when they pushed through the SAFE-T Act in early 2021 by “by depriving the courts of their inherent authority to administer and control their courtrooms and to set bail.”

“In eliminating monetary bail, the discretion constitutionally vested to the courts to protect victims and their families by this method is gone,” Cunnington’s 35-page opinion states. “The constitutional requirement of bail is meant to help ensure victims’ safety, the defendant’s compliance with the terms of release, and the defendant’s appearance in court. The Act instead leaves courts with no ‘amount of bail’ to fix and confines the court to legislatively enacted standards for detention.”

The state will appeal the decision to the Illinois Supreme Court, according to a statement late Thursday from Illinois Attorney General Kwame Raoul. The high court has been overseeing the implementation of the no-cash bail policy and other pretrial provisions that have been slated to go into effect on Sunday.

The ruling represents a victory for opponents of the 764-page law, who’ve long argued that the no-cash bail policy would drastically limit the a judge’s ability to detain dangerous criminals ahead of their trial. Supporters of the law argue the end of cash bail is a way to ensure a more equitable court system.

Pritzker’s office late Wednesday called the ruling “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,” he said in a statement. “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.”

House Republican Leader Jim Durkin, who will be stepping down from his post next month, issued a statement applauding Cunnington’s decision. “Legislation of this magnitude must not only be judged on substance, but also on process,” Durkin said. “In that regard, the Illinois Democrats failed Illinoisans.”

jgorner@chicagotribune.com

mabuckley@chicagotribune.com