The McHenry County state’s attorney said a judge’s ruling that the cashless bail provision of the Illinois SAFE-T is unconstitutional is a “victory for the rule of law” and said an appeal could take months.
The McHenry County State’s Attorney’s Office said in a statement Thursday that they have “prevailed” over Governor JB Pritzker, Attorney General Kwame Raoul and the Illinois General Assembly.
The McHenry County State’s Attorney’s Office was one of 65 state’s attorney’s offices in the state to take part in lawsuits against the SAFE-T Act, specifically the portion ending cash bail.
The Safety, Accountability, Fairness, and Equity Today, or SAFE-T Act, was approved by the General Assembly in January 2021.
The lawsuits were combined and consolidated in Kankakee County Circuit Court.
Kankakee County Judge Thomas Cunnington issued a ruling in the case Wednesday evening and sided with the plaintiffs.
“This is a victory for the rule of law, which unfortunately the Illinois General Assembly and the Governor disregarded when passing this ‘solution in search of a problem’ legislation,” McHenry County State’s Attorney Patrick Kenneally said.
Kenneally was one of six attorneys leading the constitutional challenge.
“It is the legislative process, not the criminal justice system, that is broken in Illinois,” Kenneally said.
Kenneally said the Illinois General Assembly and the governor chose to enact the “sophomoric ideas of well-financed activists” instead of drafting bail reform in collaboration with judges, prosecutors, police and defense attorneys “who seek justice in courtrooms every day.”
“Instead of an actual deliberative process where the merits of the bill were thoroughly vetted and debated, the General Assembly chose to rush a bill through both houses in the dead of night during an irregular legislative session. Instead of following the Illinois Constitution that they are sworn and honor-bound to uphold, the General Assembly and the Governor chose political expedience,” Kenneally said.
Cunnington, in his 33-page opinion, ruled that the provisions of the SAFE-T Act amending the current bail provisions of the Illinois Criminal Code were unconstitutional.
Cunnington found that the provisions entirely eliminating monetary bail violated the Crime Victims’ Rights in the Illinois Constitution by “prevent[ing] the court from effectuating the constitutionally mandated safety of the victims and their families.”
The judge also found that the bail reforms violated the separation of powers clause of the Illinois Constitution as bail is an administrative matter that falls within the power of the judiciary.
His ruling means the bail reform and pre-trial release provisions are unconstitutional and will not go into effect on January 1 in the 65 counties that were plaintiffs in the lawsuit, according to Kankakee County State’s Attorney Jim Rowe.
The other provisions in the SAFE-T Act, such as the body camera requirements and police training, were upheld and will still go into effect. Some portions of the SAFE-T Act are already in effect.
Kenneally said the governor and Illinois General Assembly can seek an emergency stay before the Illinois Supreme Court, which would delay Cunnington’s ruling and allow the bail provisions to go into effect on January 1.
In a confusing statement following the judge’s ruling, Illinois Attorney General Kwame Raoul claimed the end of cash bail portion of the SAFE-T Act will still go into effect on January 1 in all of the state’s 102 counties.
Raoul also said his office intends to appeal the court’s ruling to the Illinois Supreme Court.
Pritzker also released a statement following the ruling, saying that it is a “setback for the principles we fought to protect.”
“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,” Pritzker said.
Kenneally said an appeal in the case will likely take months to resolve. “It will be interesting to see what the Illinois Supreme Court does,” Kenneally said.
“In view of how well-reasoned Judge Cunnington’s opinion was and Governor Pritzker’s considerable financial involvement in two of the most recent supreme court races, overturning this decision would certainly raise some uncomfortable questions,” he added.
The judge’s full 33-page decision can be read here.