Illinois attorney general makes argument in appeal of ruling that halted move to cashless bail
The Illinois attorney general’s office on Thursday filed its initial argument in an appeal of a judge’s ruling that a state law eliminating cash bail violates the Illinois Constitution, pushing back on assertions that the measure infringes on judicial power and other arguments made in a lawsuit filed by county prosecutors.
The brief marks the first step in determining whether the state can move forward with a plan to abolish the use of cash bail after a Kankakee County judge in late December ruled the measure violated the state constitution. Judge Thomas Cunnington’s decision came just days before pretrial provisions, including the elimination of cash bail, in sweeping criminal justice legislation known as the SAFE-T Act were to take effect on New Year’s Day.
Cunnington’s ruling led to statewide confusion, with some county officials, mostly downstate, vowing to adhere to the cash bail system while Cook County officials said Cunnington’s ruling was not binding, allowing them to proceed with the reforms.
The Illinois Supreme Court stepped in hours before the measures would take effect, halting implementation until the high court rules on the matter to “maintain consistent pretrial procedures throughout Illinois.”
In its appeal, Attorney General Kwame Raoul’s office argued that nothing in the state constitution prevents a defendant from being released before trial without paying money as a form of bail.
“The General Assembly has determined that conditioning pretrial release on payment ‘does not accomplish the purpose of bail’ and so has removed it as an option, while preserving other means of ensuring a defendant’s appearance at trial,” the AG’s office wrote. “Nothing in the bail clause (of the state constitution) prohibits the General Assembly from making that decision.”
Portions of Cunnington’s ruling were “flawed for multiple reasons,” the AG’s office argued, writing that the legislature did not exceed its authority when setting guidelines for pretrial release.
“The legislature has for decades played a substantial role in determining how courts exercise that authority, including by withdrawing judicial discretion to impose certain sentences for certain crimes,” the brief argued.
“And although courts possess inherent power to detain defendants pending trial, this Court has never held that the General Assembly unduly infringes upon that power by setting terms and conditions under which it can be exercised,” the brief said.
Plaintiffs in the lawsuit have until Feb. 17 to file a response. Oral arguments in the case may be heard in March, according to a briefing schedule.
Lawsuits were filed by dozens of Illinois state’s attorneys who opposed the pretrial reform measures in the SAFE-T Act, which became political flashpoints in the 2022 elections. The lawsuits, consolidated in Kankakee County, argued that the elimination of cash bail violates the separation of powers clause of the constitution by allowing the General Assembly to take away the judiciary’s ability to set bail.
Cunnington’s ruling mostly sided with the plaintiffs, finding that the measure interferes with the duties of the judiciary.
The measure to eliminate cash bail was part of the SAFE-T Act’s broader criminal justice reforms, which proponents say will address long-standing inequities in the state’s justice system.
The provision on bail removes money as a factor when judges make decisions about whether a person charged with, but not yet convicted of, a crime should be released while awaiting trial. Judges would still be able to detain people deemed a danger to the public or a flight risk under guidelines set forth by the provision.
The law also outlines a new pretrial system in which defendants will appear for two hearings: an initial hearing, also known as a conditions hearing, and a detention hearing for those who prosecutors seek to detain a defendant, designed to provide a more comprehensive look at whether someone should be released or jailed pretrial.
In addition to arguing there’s no requirement for monetary bail, Raoul’s office pushed back on arguments from the plaintiffs that the pretrial provisions violate the rights of victims. The office said the SAFE-T Act’s pretrial provisions protect victims’ rights by having judges weigh the “nature and seriousness of the real and present threat to the safety of any person or persons that would be posed by the defendant’s release.”
The appeal also challenged Cunnington’s assertion that the plaintiffs have the grounds to sue because the no-cash bail policy affects their rights. Instead, Roaul’s office argued, the clause applies to defendants who are arrested and face pretrial detention.
“Plaintiffs, by contrast, would have the Court read the bail clause to confer some sort of entitlement on courts or law enforcement officers, under which such actors are constitutionally entitled to set or seek monetary bail,” the appeal stated. “The text and structure of the bail clause demonstrate that it confers rights on criminal defendants, not on law enforcement officers or on courts.”
Jeremy Gorner reported from Springfield.
