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Illinois Supreme Court halts plans to eliminate cash bail and other pretrial court changes

The order came after a Kankakee County judge said the provisions were unconstitutional


A man pays cash bail in the bond office to secure his brother’s release on Dec. 21, 2022, at the Cook County Jail in Chicago.

Brian Cassella/Chicago Tribune/TNS

By Jeremy Gorner and Madeline Buckley
Chicago Tribune

CHICAGO — Just hours before the elimination of cash bail and other pretrial policies were supposed to go into effect, the Illinois Supreme Court on Saturday halted the implementation of the landmark policies statewide.

The order — issued by the high court on New Year’s Eve afternoon and following days of confusion after a Kankakee County judge said the provisions were unconstitutional — said the stay was needed to “maintain consistent pretrial procedures throughout Illinois” while the court prepares to hear arguments on the matter.

The court will coordinate an “expedited process” for the appeal from the Illinois Attorney General’s Office, the order said.

The provisions were part of a sweeping criminal justice reform law, collectively known as the SAFE-T Act, that passed by slim margins through the Democrat-controlled Illinois General Assembly in January 2021 and signed into law a month later by Gov. J.B. Pritzker. The elimination of cash bail and some of the other changes to pretrial hearings were scheduled to take effect Jan. 1, 2023.

The Supreme Court order came after Kankakee County Judge Thomas Cunnington on Dec. 28 sided with prosecutors in 64 mostly downstate counties who sued to stop the no-cash bail policy and other provisions of the act. Cunnington gave several reasons, including that the state legislature violated the separation of powers clause in the Illinois Constitution when it eliminated cash bail and interfered with the judiciary’s ability to set bail.

But following Cunnington’s Wednesday night decision, the legal reaction has been messy. Various counties had sought temporary restraining orders to prevent the pretrial provisions from going into effect and Illinois Attorney General Kwame Raoul, who supports the SAFE-T Act, responded by publicly decrying the court filings as last-minute legal gimmicks from longtime opponents of the reforms.

Lake County State’s Attorney Eric Rinehart, who supports the elimination of cash bail, said he was disappointed in Cunnington’s decision but said he understands why the Supreme Court ruled that uniformity in Illinois must exist. He’s argued that while the bail system can keep poor, nonviolent defendants locked up because they can’t afford to make bail, the system allows dangerous criminals to be released pending trial if they have the financial means.

“Lake County was ready to start arguing (Sunday) that violent offenders shouldn’t be able to use cash to buy their way out,” he said in a text message to the Tribune. “A few days ago, one of our defendants charged with possessing dozens of weapons and resisting law enforcement posted $75,000.

“Illinois will be safer when we join the federal courts in eliminating access to money as a factor in determining who is released,” Rinehart continued. “We were ready and will be ready when the Supreme Court reinstates (these provisions) later this year.”

In Cook County, officials were prepared to move ahead with the reform measures Sunday, even as the legal wrangling persisted. Cook County State’s Attorney Kim Foxx and the Cook County Public Defender’s Office did not return requests for comment late Saturday.

Before the Supreme Court stepped in, Illinois counties were poised to handle defendants’ first appearances in court wildly differently beginning Sunday, with Cook County vowing to proceed with the reforms while many counties named in the lawsuit said they would not implement them.

On Friday night, DuPage County State’s Attorney Robert Berlin, a Republican, and Kane County State’s Attorney Jamie Mosser, a Democrat, filed a motion to the Supreme Court to seek its guidance in implementing the new provisions. Berlin said the filing comes amid “confusion statewide” over how each county should proceed.

Also on Friday, Raoul appealed Cunnington’s decision to the Supreme Court. He said some court motions asked for his office to be prohibited from enforcing any provision of the SAFE-T Act — and not just the pretrial ones.

“Many of these provisions have been in effect for more than a year; however, my office received less than one hour’s notice of hearings in some counties and no notice at all in others,” he said in the statement. “Throughout the day, we continued to learn of plaintiffs having obtained (temporary restraining orders) without giving our office notice or providing copies of the complaints or TRO motions.”

“To say that this is an abuse of the judicial process is an understatement,” Raoul said.

Raoul also indicated Friday there were counties making last minute legal challenges that weren’t part of the Kankakee County lawsuit, calling it “outrageous” that they “chose to sit on their hands until the last business day before the (pretrial provisions of the) SAFE-T Act (are) to go into effect, and then seek to enjoin (them) from going into effect.”

The elimination of cash bail has arguably been the most controversial piece of the SAFE-T Act, which supporters said was meant to promote police accountability and ensure a more equitable court system. The 764-page law also requires all police departments in Illinois to be equipped with body cameras by 2025, allows the public to more regularly file anonymous complaints against cops, and modifies the state’s police certification process, among other reforms. But the Kankakee Court ruling and subsequent Supreme Court order only apply to the elimination of cash bail and accompanying pretrial provisions.

Different portions of the SAFE-T Act have gone into effect since Pritzker signed it into law in February 2021. It wasn’t until September of this year when state’s attorneys around Illinois began their court battle in Kankakee County against the pretrial provisions. At that point, the provisions, although not yet in ef