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Ill. judge: Removal of cash bail provision in SAFE-T Act is unconstitutional

“In eliminating monetary bail, the discretion constitutionally vested to the courts to protect victims and their families by this method is gone,” said Judge Cunnington


Photo/YouTube via CBS Chicago

By Jeremy Gorner and Madeline Buckley
Chicago Tribune

KANKAKEE COUNTY, Ill. — A Kankakee County judge has found that a key provision of Illinois’ sweeping criminal justice law violates the state constitution, potentially rolling back a controversial measure that would eliminate cash bail as of New Year’s Day, according to a copy of the judge’s ruling.

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

Cunnington’s decision stems from lawsuits filed by several dozen state’s attorneys across Illinois. Cunnington agreed with the prosecutors’ argument that the state legislature violated the separation of powers component of the Illinois Constitution when it passed a measure eliminating cash bail and, therefore, interfered with the duties of the judiciary.

He noted in his 36-page opinion that the Illinois Supreme Court has specifically held that judges have “independent, inherent authority to deny or revoke bail to ‘preserve the orderly process of criminal procedure.’”

Cunnington also wrote that the SAFE-T Act “creates new classes of offenses exempt from bail which are not included in the Constitution; it utterly abolishes monetary bail as an option for a judge to utilize to ensure a criminal defendant’s appearance in court; and contradicts the constitutional standard regulating when a defendant may be held without bail.”

“In eliminating monetary bail, the discretion constitutionally vested to the courts to protect victims and their families by this method is gone,” Cunnington wrote. “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 state will appeal the decision to the state Supreme Court, according to a statement late Wednesday from Illinois Attorney General Kwame Raoul. His office noted that the ruling only applies to jurisdictions that fall under the 64 lawsuits against Raoul, Gov. J.B. Pritzker and other state officials. The ruling does not apply to Cook County.

But it’s not immediately clear when the state Supreme Court would hear the appeal or whether the pretrial provisions would be put on hold until the high court makes its ruling. The state Supreme 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 SAFE-T Act, 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,” said Durkin, of Western Springs. “In that regard, the Illinois Democrats failed Illinoisans.”

The lawsuit also argued that the SAFE-T Act violates the so-called “single subject rule” of the constitution, which is meant to ensure bills are focused on a single topic. On that issue, Cunnington sided with the state, finding that the plaintiffs’ did not meet their burden to show the SAFE-T Act’s provisions “lack a ‘natural or logical connection to’ the criminal justice system.”

Opponents of the no-cash bail policy stoked fears that the provision would free violent criminals, even though judges maintain the ability to keep defendants behind bars if the state could show they were a flight risk or a danger to the public.

Earlier this month, Pritzker signed into law several changes to the pretrial provisions ahead of the Jan. 1 effective date.

The changes clarify the standards that judges must follow when considering whether a defendant presents a danger to the public, and adds several offenses for which judges can detain someone if they’re deemed a threat to the community or another person, including aggravated robbery, second-degree murder and home invasion.

Prosecutors had expressed concern that it would be almost impossible to make an argument that a defendant is a flight risk because the SAFE-T Act originally prevented them from using a defendant’s prior history of failing to appear in court. Under the changes, patterns of failing to show up for court — but not a single nonappearance — can be used in making the argument for detention.

Defendants charged with crimes before Jan. 1 would also have the option to remain under the old bail system or be moved to the new system. To ease the burden on the court system, the changes set specific time frames for detention hearings for those shifting to the new system.

The changes also make clear that police can arrest people for misdemeanors such as trespassing that generally require only a ticket, stating that arrests can be made if officers believe “the accused poses a threat to the community or any person” or if “criminal activity persists.” An arrest can also be made if the alleged offender has “obvious medical or mental health issues” that pose a risk to their own safety, according to the changes.

©2022 Chicago Tribune.
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