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Cash bail remains until Illinois Supreme Court makes final decision

Enquirer~Democrat Reporter

A Kankakee County judge ruled Dec. 28 that the Pre-Trial Fairness Act, the provision under the SAFE-T Act which eliminates cash bail, was unconstitutional. Several State’s Attorneys from across the state joined a class-action lawsuit against the provision.

The ruling only applied to counties listed in the lawsuit meaning 65 of the 102 counties in Illinois would keep cash bail in place. Counties that did not sue would see the end of their cash bail systems. In south central Illinois, Greene, Jersey, Madison, Montgomery and Sangamon counties would keep the cash bail systems.

State’s Attorneys requested the Illinois Supreme Court delay the elimination of cash bail amid confusion over how a divided state would work.

The state’s Supreme Court issued an order the evening of Dec. 31, suspending the implementation of the Pretrial Fairness Act until further notice “in order to maintain consistent pretrial procedures throughout Illinois.”

Attorney General Kwame Raoul asked the Supreme Court to expedite the appeals process.

Outside of the elimination of cash bail, other portions of the SAFE-T Act, including new requirements for body cameras and other police reforms, were allowed to stand.

Illinois Gov. J.B. Pritzker has said he is confident the act will be found to be constitutional by the justices.

Kankakee County Circuit Judge Thomas Cunnington’s ruling held that the pretrial release provisions in the SAFE-T Act violated the Separation of Powers Clause, the Victim Rights Act, and unconstitutionally amended Article I, Section 9 of Illinois’ constitution, which codified cash bail in the state.

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.”

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.