Illinois Supreme Court building

SPRINGFIELD — State Circuit Court Judge Thomas W. Cunningham ruled on Dec. 28 that lawmakers overreached their constitutional authority in passing a measure to abolish cash bail in Illinois, while other provisions in the wide-ranging SAFE-T Act criminal justice reform were not affected by the ruling.

Illinois Attorney General Kwame Raoul said in a news release the state will appeal the decision directly to the state Supreme Court, which later stayed the implementation of the cash bail reform across the state on New Year's Eve, a day before it was originally to take affect statewide. The court found that pretrial procedures should stay the same before justices hear the appeal. 

Raoul issued another statement after the court issued its stay: “As we have stated previously, my office filed an appeal with the Illinois Supreme Court because in this matter, only the Supreme Court’s final decision on the merits will be binding on all Illinois courts. It is important to note that the order issued today by the court is not a decision on the merits of the constitutionality of the SAFE-T Act, and I appreciate the court’s interest in expediting the appeal. We look forward to mounting a robust defense of the constitutionality of the law and ensuring that it goes into effect across the state.”

The ruling did not invalidate other provisions of the SAFE-T Act that had already taken effect, such as reforms to police officer training and certification standards and police body camera requirements.

Cunnington, based in Kankakee, wrote in a 36-page decision that the cash bail provisions effectively and improperly amended a section of the state’s constitution that states, “all persons shall be bailable by sufficient sureties,” except in a few specific circumstances.

He also wrote that ending cash bail is an improper overreach by lawmakers, who have no constitutional authority to govern the administrative functions of Illinois courts due to the separation of powers. Bail, Cunnington wrote, has been held by the Supreme Court to be “administrative” in nature.

The Constitution also specifically mentions bail in a section on victims’ rights, when it states victims have a right “to have the safety of the victim and the victim's family considered in denying or fixing the amount of bail.” Cunnington found that eliminating bail prevents courts from “effectuating the constitutionally mandated safety of the victims and their families.”

Cunnington rejected other arguments by the dozens of state’s attorneys that centered on the legislative process, namely that the bill was not given a proper hearing and violated the “single subject” rule. Court precedent holds that as long as the House speaker and Senate president certify that a bill is properly passed, courts have no standing to intervene, he wrote.

Local state Sen. Robert Peters (D-13th), who spearheaded the end-of-cash-bail provision, released a statement after the court’s decision.

“I stand beside the decision to appeal to the Illinois Supreme Court, as so many of us have worked so hard for equity in the criminal justice system and will continue the fight for pretrial justice,” he said.

“When you make systemic, civil rights level changes, there are bound to be people who will do whatever to stop it. We’ve seen this before from the Voting Rights Act to Obamacare, and even the governor's COVID-19 mitigations.

“We have fought to ensure that all Illinoisans are treated fairly in the criminal justice system and able to exercise their rights under the SAFE-T Act and the Illinois Constitution.”

Herald staff writer Aaron Gettinger contributed from Chicago. Capitol News Illinois is a nonprofit, nonpartisan news service covering state government funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.

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