Illinois prosecutors ask a judge to quash law that is set to eliminate cash bail on Jan. 1
Less than two weeks before cash bail is set to be abolished in Illinois, opponents of the measure on Tuesday asked a Kankakee County judge to stop the change from taking effect and declare the sweeping criminal justice law it is part of unconstitutional.
In a crowded Kankakee County courtroom, Judge Thomas Cunnington heard arguments from a group of Illinois state’s attorneys who oppose doing away with cash bail, and from lawyers for Gov. J.B. Pritzker and Attorney General Kwame Raoul who defended the measure.
Cunnington said he would issue a ruling before the end of the month. “You have given me a monumental task,” he told the plaintiffs.
The cash bail measure, set to take effect Jan. 1, was passed as part of a broader criminal justice reform law known as the SAFE-T Act that proponents say will address long-standing inequities in the state’s justice system.
The bail provision removes money as a factor when judges make decisions about whether a person charged, but not yet convicted, of a crime should be released while awaiting trial. Judges will still be able to detain people deemed a danger to the public or a flight risk under guidelines set forth by the provision.
State’s attorneys from across Illinois filed lawsuits earlier this year challenging the SAFE-T Act, particularly targeting the bail reform provision. The Illinois Supreme Court consolidated the lawsuits so that they can be heard together in Kankakee County.
Kankakee County State’s Attorney James Rowe argued the law is unconstitutional for a number of reasons, including that the elimination of cash bail violates the separation of powers clause of the constitution by allowing the Illinois General Assembly to take away the judiciary’s ability to set bail.
“The legislature, again, has put their hands on your gavel,” Rowe told Cunnington.
He also argued that the law violates the so-called “single subject rule “of the Illinois Constitution, which is meant to ensure bills are focused on a single topic. The SAFE-T Act touches on at least five “clearly distinct and divergent subjects” in the 764-page law that range from “Policing and Criminal Law” to “Elections,” according to the lawsuits.
Rowe brandished a stack of the more than 700 pages, dropping it on a table with a thud and asking the judge: “How did we go from the most noble of goals to the most unconstitutional of outcomes?”
He said the judge could declare the whole SAFE-T Act unconstitutional, or simply rule against the cash bail provision, leaving the rest of the law intact.
The defendants countered that the SAFE-T Act’s provisions all involve criminal justice, which is the single topic uniting the sweeping legislation. The lawyers also said the state’s attorneys don’t have the standing to assert a number of claims they make, including ones made on behalf of crime victims.
“The real dispute here is a policy dispute, not a legal dispute,” said Darren Kinkead, an attorney with the Illinois attorney general’s office.
He said it would be a “grave mistake” to allow state’s attorneys to use the courts to challenge policy decisions with which they disagree.
During his rebuttal, Rowe shot back that Kinkead’s claim was “absurd.”
“If I could sue Springfield over a bad idea, we’d be doing nothing else but suing Springfield over bad ideas,” he said.
The original bill that eventually became the SAFE-T Act was filed in February 2019 by Democratic state Rep. Curtis Tarver of Chicago. Initially, the bill required that the Illinois Department of Corrections give prison inmates who were nearing their release date information about registering to vote.
What started out as a seven-page bill grew to a 764-page bill assembled by Tarver’s Democratic allies in the House’s Legislative Black Caucus. The bill went from focusing on voting rights for people soon to be released from prison to sweeping criminal justice reforms designed to create a fairer court system and promote police accountability.
A few days after the changes were introduced by the Democratic-led legislature, the SAFE-T Act passed by slim margins in the House and Senate, and was then signed into law by Gov. J.B. Pritzker.
