The Illinois Attorney General’s office on Thursday filed its initial argument in an appeal of a judge’s ruling that a state law eliminating cash bail violates the Illinois Constitution, pushing back on assertions that the reform measure infringes on judicial power and other arguments made by prosecutors in a lawsuit opposing the law.
The brief marks the first step in determining whether the state can abolish the use of cash bail after a Kankakee County judge ruled the measure unconstitutional. Judge Thomas Cunnington’s decision came just days before pretrial provisions including the elimination of cash bail in what’s known as the SAFE-T Act were to take effect on New Year’s Day.
Cunnington’s ruling led to statewide confusion, with some county officials, mostly downstate, vowing to adhere to the former cash bail system while Cook County officials said Cunnington’s ruling was not binding, allowing them to proceed with the reforms.
The Illinois Supreme Court stepped in hours before the measures would take effect, halting implementation until the high court rules on the matter to “maintain consistent pretrial procedures throughout Illinois.”
In its appeal, Raoul’s office argued that nothing in the state constitution prevents a defendant from being released before trial without paying money as a form of bail.
“Nothing in the bail clause prohibits the General Assembly from making that decision,” Raoul’s office argued, referring to the state legislature’s passage of cash bail elimination. “Other courts, too, agree that ‘bail’ means pretrial release conditioned on whatever terms a court chooses to impose, not pretrial release conditioned specifically on a monetary payment by the defendant.”
Portions of Cunnington’s ruling were “flawed for multiple reasons,” the AG’s office argued in the brief, writing that the legislature did not exceed its authority when setting guidelines for pretrial release.
“And although courts possess inherent power to detain defendants pending trial, this Court has never held that the General Assembly unduly infringes upon that power by setting terms and conditions under which it can be exercised,” the brief said.
The opponents of the bail reform measure have until Feb. 17 to file a response. Oral arguments in the case may be heard in March, according to a briefing schedule.
Dozens of Illinois state’s attorneys had filed lawsuits challenging the pretrial reform measures that became political flashpoints in the 2022 elections. The lawsuits argued, among other things, that the elimination of cash bail violates the separation of powers clause of the constitution by allowing the Illinois General Assembly to take away the judiciary’s ability to set bail.
Cunnington’s ruling mostly sided with the plaintiffs, finding that the measure interferes with the duties of the judiciary.
The cash bail measure was passed as part of the SAFE-T Act’s broader criminal justice reforms, which proponents say will address long-standing inequities in the state’s justice system.
The bail provision removes money as a factor when judges make decisions about whether a person charged, but not yet convicted, of a crime should be released while awaiting trial. Judges will still be able to detain people deemed a danger to the public or a flight risk under guidelines set forth by the provision.
The law also outlines a new pretrial system in which defendants will appear for two hearings: an initial hearing, also known as a conditions hearing, and a detention hearing for those who prosecutors seek to detain, designed to provide a more comprehensive look at whether someone should be released or jailed pretrial.