Both sides agree to timeline that would further delay Pretrial Fairness Act’s implementation
By JERRY NOWICKI
Capitol News Illinois
An appeal to the Illinois Supreme Court regarding the constitutionality of a state law that would end cash bail appears to be at least two months away from resolution under a new timeline approved by the court Thursday [Jan. 5, 2023].
Attorney General Kwame Raoul filed the agreed motion setting the timeline for the high court’s appeal of a lower court ruling that invalidated provisions of the SAFE-T Act criminal justice reform that would have eliminated cash bail on Jan. 1. The motion, Raoul’s office wrote in its filing, had been agreed to by all parties in the case, scheduling briefs to be filed in January and February, with oral arguments to begin sometime in March. A ruling would come sometime thereafter at an unspecified date.
The matter came to the Supreme Court in a Friday, Dec. 30, appeal by Raoul’s office, following Kankakee County Judge Thomas Cunnington’s decision that lawmakers overreached their constitutional authority in passing a measure to abolish cash bail in Illinois.
Cunnington 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.”
The ruling initially left the impending cash bail reform in limbo in at least 64 of Illinois’ 102 counties that had joined the consolidated lawsuit. A Dec. 31 order from the Illinois Supreme Court, however, stayed the cash bail provisions’ implementation statewide until the court could rule on an appeal to the case.
Thursday’s order set the timeline for that appeal.
On Wednesday, Gov. JB Pritzker said he was disappointed in the delayed implementation of the reform, which he and advocates say corrects an unfair system that allows wealthy individuals to pay their way out of jail as they await trial regardless of the seriousness of the crime they are accused of committing, while keeping poorer individuals who can’t make bail incarcerated pretrial even if they’re accused of relatively minor crimes.
The measure that would replace cash bail, should the new law be allowed to take effect, would give judges greater authority to keep an individual incarcerated pretrial if they’re accused of more serious offenses, but it would also limit the number of offenses for which pretrial detention can be ordered.
“The whole purpose here is fairness,” Pritzker said. “And I think that we will continue to fight for that. And I think those of us who believe in this know that there’s even more work to do, but I am comfortable and confident that this is constitutional.”
Neither Cunnington’s ruling nor the Supreme Court’s orders thus far have invalidated other provisions of the SAFE-T Act which had already taken effect, such as reforms to police officer training and certification standards and police body camera requirements.
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to more than 400 newspapers statewide, as well as hundreds of radio and TV stations. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.