Judge rules Illinois cashless bail law is unconstitutional, handing prosecutors a win

A state judge ruled late Wednesday that Illinois’ SAFE-T act was unconstitutional, handing prosecutors a major win just days before the cashless bail law was set to take effect.

Kankakee County Circuit Court Judge Thomas W. Cunnington concluded the state legislature "improperly attempted to amend the [Illinois] Constitution" by ending cash bail with the Safety, Accountability, Fairness and Equity-Today Act.

The SAFE-T Act, a sweeping law addressing police regulations, criminal justice issues and how courts handle criminal defendants originally passed in January 2021.

Gov. J.B. Pritzker signed the measure last year. While some measures of the SAFE-T Act impacting police have already gone into effect, others like the end of cash bail in Illinois are set to go into effect Jan. 1.

The measure found opposition from dozens of state’s attorneys from across the state. Their lawsuits were consolidated into one case and was heard last week in Kankakee County Circuit Court.

Since originally passing, there have been several amendments to the bill, including as recently as Dec. 1, when the legislature passed a 300-page trailer bill to include a list of detainable offenses, among other changes. That wasn’t enough to stave off the legal challenge.

Late Wednesday, Cunnington issued his mixed ruling that “declaratory judgment is proper in this case and that plaintiffs have met their burden to show to this court that [the SAFE-T Act] as they relate only to the pretrial release provisions are facially unconstitutional” while finding the state was successful in defending against challenges of alleged violations of the single subject rule and whether the bill was given proper public hearing.

On the cash bail provision, Cunnington wrote it “will likely lead to delays in cases, increased workloads, expenditures of additional funds, and in some cases, an inability to obtain defendant’s appearance in court,” and “that these likely injuries occasioned by the enforcement of an unconstitutional law, are cognizable injuries which provide constitutional standing to plaintiff State’s Attorneys.”

He further wrote “Plaintiff Sheriffs also are injured in sufficient measure to establish constitutional standing.”

“This will undoubtedly lead to increased overtime, staffing needs, and other costs,” Cunnington wrote. “More importantly, it puts the Sheriff’s staff at increased risk. The court finds that this issue is not simply a police dispute, as defendants urge, but a clear matter of law enforcement safety.

"The court finds that had the Legislature wanted to change the provisions in the Constitution regarding eliminating monetary bail as a surety, they should have submitted the question on the ballot to the electorate at a general election,” Cunnington wrote. Further, he said “eliminating monetary bail ... prevents the court from effectuating the constitutionally mandated safety of the victims and their families. This section of the Illinois Constitution is intended to serve ‘as a shield to protect victims.’”

Kankakee County State's Attorney Jim Rowe said the immediate net effect is that "pre-trial release provisions and bail reform will not go into effect in the 65 counties that were party to the lawsuit."

"The other provisions of the Safe-T Act, such as body cameras, training, etc., were upheld," Rowe said.

Illinois House Minority Leader Jim Durkin hailed the ruling.

“Today’s ruling is a victory for the often neglected victims of crime and the men and women of law enforcement who wear the badge every day,” Durkin, R-Western Springs, said. “In order to fix this one-sided, anti-law enforcement, and anti-victim act, it is imperative to have a transparent and substantive negotiation with all interested parties, not just a few stakeholders and political insiders. The people of the State of Illinois deserve nothing less.”

Illinois Attorney General Kwame Raoul promised an appeal.

“To definitively resolve this challenge to the pretrial release portions of the SAFE-T Act, Governor Pritzker, the legislative leaders named in the consolidated cases and I intend to appeal the circuit court’s decision directly to the Illinois Supreme Court, where we will ask the court to reverse the circuit court’s decision,” Raoul said in a statement Wednesday evening.

Raoul said many provisions of the act are in effect and will go into effect.

“For instance, the right of individuals awaiting criminal trials – people who have not been convicted of a crime and are presumed innocent – to seek release from jail without having to pay cash bail will go into effect in a few short days, despite the court’s ruling against those provisions,” he said.

Pritzker issued his own statement on the ruling.

“Today’s ruling is a setback for the principles we fought to protect through the passage of the SAFE-T Act," Pritzker said. "The General Assembly and advocates worked to replace an antiquated criminal justice system with a system rooted in equity and fairness. We cannot and should not defend a system that fails to keep people safe by allowing those who are a threat to their community the ability to simply buy their way out of jail."