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Illinois judge finds elimination of cash bail unconstitutional

A county judge sided with dozens of state's attorneys who argue abolishing cash bail violates the separation of powers between Illinois’ Legislature and its judiciary.

CHICAGO (CN) — Illinois' plan to abolish cash bail in 2023 faced a severe setback late Wednesday night, when a downstate county judge ruled that doing so would violate the Illinois Constitution.

The ruling, delivered after 10 p.m. by Kankakee County Chief Judge Thomas Cunnington, addresses the sweeping Illinois criminal justice reform law known as the Safety, Accountability, Fairness and Equity-Today, or SAFE-T, Act. The state legislature passed the law, which includes the abolition of cash bail, in January 2021, and Democratic Governor J.B. Pritzker signed it into law that February.

Some elements of the SAFE-T Act, such as a statewide ban on police chokeholds, have already been in place for over a year, but cash bail was only set to end come New Year's Day 2023.

At time of signing, Pritzker called the end of cash bail "a substantial step toward dismantling the systemic racism that plagues our communities, our state and our nation and brings us closer to true safety, true fairness and true justice."

Though progressives have pressured state lawmakers to abolish cash bail for years, calling it a way for the wealthy to buy their way out of jail and pointing out that people of color are generally less able to afford posting bond, conservative lawmakers and multiple state's attorneys' offices balked at the legislation.

Their criticisms congealed around Kankakee County State's Attorney Jim Rowe, who filed a lawsuit this past September alleging the SAFE-T Act violates the separation of powers between the legislative and judicial branches of state government. By Halloween, 64 other state's attorneys in Illinois had joined Rowe's suit.

"That as [eliminating cash bail] is an intrusion in one of the core components of several courts' authority, the legislation is an unlawful intrusion into the central powers of the courts and thus must violate the separation of powers doctrine," Rowe wrote in his complaint.

Ed Yohnka, communications director for the ACLU of Illinois, criticized the timing of the suit as part of a conservative political project amid the 2022 election cycle. Republican Illinois state senator and defeated gubernatorial challenger Darren Bailey, for example, had pitched repealing the SAFE-T Act since July.

"What we see here... is people waited until the issue was part of political campaigns and then they filed lawsuits," Yohnka said.

Political or not, Cunnington partially agreed with Rowe in his Wednesday night ruling. The judge found that only the segments of the SAFE-T Act dealing with pretrial release reform are unconstitutional, leaving the provisions dealing with police and prison reform untouched.

"Because, as the Illinois Supreme Court has determined, the administration of the justice system is an inherent power of the courts upon which the legislature may not infringe and the setting of bail falls within that administrative power, the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat," Cunnington wrote.

He added, "Therefore, the court finds that [the SAFE-T Act provisions] as they relate only to the pretrial release provisions do violate this separation of powers principle underlying our system of governance by depriving the courts of their inherent authority to administer and control their courtrooms and to set bail."

Cunnington further opined that for any change to the state's cash bail protocol to be legitimate, it should have been put before voters directly.

"Had the Legislature wanted to change the provisions in the Constitution regarding eliminating monetary bail...they should have submitted the question on the ballot to the electorate at a general election,” the judge wrote.

On Thursday morning, Governor Pritzker called the ruling a "setback," while Illinois Attorney General Kwame Raoul said his office planned to appeal Cunnington's decision to the Illinois Supreme Court.

Raoul and Rowe's offices also put out competing statements on the ruling, prompting confusion as to whether the state as a whole would go through with abolishing cash bail come New Year's Day.

"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," the statement from Raoul's office said, asserting that Cunnington's decision did not apply to any criminal cases.

"[Cash bail abolition] does go into effect on January 1 in all 102 counties in Illinois," April McLaren, Raoul's deputy press secretary, further insisted in an interview. "A circuit court decision like this is not binding for criminal defendants."

Conversely, the statement from Rowe's office claimed Kankakee County and the other 64 counties party to his suit would continue to utilize cash bail next year. There are 102 counties in Illinois.

"The immediate net effect of this ruling is that the pre-trial release provisions and bail reform will not go into effect in the 65 counties that were party to the lawsuit," Rowe's statement said.

A representative from his office declined to comment on the apparent contradiction between this statement and those from the attorney general's office.

Yohnka meanwhile noted that Cunnington's ruling was only a declaratory judgment - it did not contain any injunction compelling specific action from state lawmakers or law enforcement. The lack of formal instruction, he said, likely left the question of cash bail up to individual counties' discretion until the state's high court can rule on the matter.

Chicago's home of Cook County, for example, issued its own statement Thursday afternoon committing to the elimination of money bonds.

"As there is no injunction, we will be monitoring for implementation," Yohnka said, adding he believes the Illinois Supreme Court will ultimately side with the abolitionists.

"We're confident that the end of monetary bail will eventually be implemented across the state," he said.

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