Cash bail will continue to be utilized in courts throughout Illinois for at least two more months after the Illinois Supreme Court on Thursday said it would begin hearing arguments in March about whether a law that eliminates cash bail is constitutional.
The high court’s order offers the first timeline for Illinois Attorney General Kwame Raoul’s appeal of a Dec. 28 decision by Kankakee County Judge Thomas Cunnington, who ruled that the elimination of cash bail and other pretrial policies violated the state constitution.
The Supreme Court will hear arguments from both sides in the case in March, according to the high court’s order. But Raoul, who was a defendant in the Kankakee County case, and the more than 60 state’s attorneys who filed the lawsuit that led to Cunnington’s decision, will have deadlines beforehand to file their arguments before the high court.
Lawyers for Raoul and the other defendants, Gov. J.B. Pritzker, House Speaker Emanuel “Chris” Welch and Senate President Don Harmon, will have until Jan. 20 to file their “record of appeal,” or all rulings, motions, exhibits and other filings that comprised their original case in Kankakee County.
By Jan. 26, they must file their opening brief in their appeal. The plaintiffs will have until Feb. 17 to reply and the defendants have until 10 days after that to file a rebuttal to the reply.
Cunnington sided with the prosecutors from the more than 60 counties, most of which are downstate, who sued to stop the no-cash bail policy and other pretrial provisions of the so-called SAFE-T Act that were supposed to take effect Jan. 1. Cunnington gave several reasons, including that the state legislature violated the separation of powers clause in the Illinois Constitution when it eliminated cash bail and interfered with the judiciary’s ability to set bail.
For several days leading up to Jan. 1, Cunnington’s ruling set the stage for pretrial decisions to be handled differently across the state, as the counties that had sued planned to ignore the reform provisions while Cook County officials, not party to the lawsuit, said they were moving ahead with the changes.
The state’s attorney offices in DuPage and Kane counties, both of which also were not party to the suit, filed a motion to the state Supreme Court asking it for guidance, while Raoul blasted the “eleventh hour theatrics” of counties that filed for last-minute temporary restraining orders.
The high court stepped in Dec. 31 to pause the changes from taking effect on New Year’s Day, writing that the move was meant to “maintain consistent pretrial procedures throughout Illinois” while the appeal is pending. It also said it would coordinate an “expedited process” for the appeal.
The legal back-and-forth has been the latest twist in the history of the SAFE-T Act, the series of sweeping criminal justice reforms that was passed and signed into law by Pritzker in February 2021. Many of the provisions in the law — especially the elimination of cash bail — became political flashpoints in the 2022 statewide elections.
Before the state Supreme Court halted the pretrial provisions from going into effect, lawyers, judges, sheriffs and other officials across the state had been preparing for the changes, which held that money would no longer be a factor in deciding whether a defendant is released while awaiting trial. The measure also outlined a new 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.
Proponents have argued that people should not be held in jail because they are too poor to post bail, and note that judges can still detain people deemed a danger to the public or a flight risk. But the no-cash bail policy was used by Republicans and other opponents in this past election to paint Pritzker and his Democratic allies as weak on crime.