Despite a new ruling against parts of the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act, Cook County — which includes Chicago — is still moving forward with plans to end cash bail on Jan. 1.
On Dec. 28, Kankakee County Circuit Court Judge Thomas W. Cunnington ruled that bail reform and pre-trial release provisions violate the Illinois Constitution.
The decision only affects the 64 counties involved, meaning that bail reform and pre-trial release provisions won’t go into effect on Jan. 1 in those counties.
Cook County, which includes Chicago, is not one of the counties in the consolidated case.
Kankakee County Sheriff Michael Downey and Kankakee County State’s Attorney James R. Rowe brought the case against Illinois Attorney General Kwame Raoul, Illinois Gov. JB Pritzker, Illinois House Speaker Emanuel Chris Welch and Illinois Senate President Don Harmon.
Cunnington wrote that “the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat.” In finding that, the judge stated that the “separation of powers principle” was violated — meaning that he found that the legislature overstepped its boundaries.
In a statement, Raoul emphasized that the court’s opinion does not disturb other portions of the SAFE-T Act that have been in effect for more than a year.
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Pritzker signed the Safe-T Act into law in January 2021. Some of the more controversial parts of the act — such as getting rid of cash bail — weren’t scheduled to go into effect until January 2023. In December 2022, Pritzker signed changes to the SAFE-T Act. The bill was amended to expand the list of detainable offenses; it also specified what prosecutors have to show a judge in order to get a defendant held before a trial.
“Although the court’s decision is binding in the 64 cases that were consolidated in Kankakee County, it is important to note that it is not binding in any other case, including those involving criminal defendants in any of the state’s 102 counties. To definitively resolve this challenge to the pretrial release portions of the SAFE-T Act, Gov. Pritzker, the legislative leaders named in the consolidated cases and I intend to appeal the circuit court’s decision directly to the Illinois Supreme Court, where we will ask the court to reverse the circuit court’s decision,” Raoul wrote in a press release.
The Illinois Supreme Court currently has a Democratic majority. Earlier this year, during the 2022 midterm election cycle, two seats were up for election, generating fears that the court would turn majority Republican, which has not happened in 50 years. However, those seats were won by Democrats.
Raoul stated that most of the act’s provisions have been in effect for more than a year, adding that “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.” He included the abolishing of cash bail as an example.
“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,” Raoul added.
In his own statement, Pritzker said the “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. 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. I thank the Attorney General for his work on this case and look forward to the Illinois Supreme Court taking up the appeal as soon as possible.”
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Once cash bail ends in Cook County on Jan. 1, a defendant can only be detained in jail pretrial if they’re charged with specific types of felonies, and if prosecutors prove to a judge that a defendant is a flight risk or “poses a specific, real, and present threat to any person or the community.”
Proponents of the SAFE-T Act say it will keep people who are presumed innocent from having to fight their cases from behind bars and lower jail populations across the state. Research shows that spending even a few days in jail makes it more likely for a defendant to end up homeless, unemployed or rearrested — even if they’re not convicted, according to a September 2022 article by Injustice Watch.
“The use of money bond has always been an affront to several basic Constitutional principles, making a mockery of the presumption of innocence and reducing critical decisions to mere guesswork about what may or may not be in someone’s pocketbook,” Cook County Public Defender Sharone R. Mitchell Jr. wrote in a press release. “We are relieved that the Illinois Supreme Court will have the opportunity to clarify the constitutionality of the Pretrial Fairness Act soon. In the meantime, we expect the law to go into effect on January 1, 2023 in Cook County.”