Kenneally: Judge's Ruling On Cashless Bail A 'Victory'

MCHENRY COUNTY, IL — McHenry County State's Attorney Patrick Kenneally is calling a Kankakee County judge's ruling Wednesday on the SAFE-T Act a victory.

The McHenry County State's Attorney's Office is among 65 state's attorney's offices in the state that filed lawsuits, calling on the overturning of the act and specifically the elimination of cash bail. The SAFE-T Act had been set to go into effect on Jan. 1.

Kankakee County Circuit Judge Thomas Cunnington heard oral arguments last week in a consolidated civil lawsuit. The ruling on Wednesday means that the end of cash bail, included in the SAFE-T Act, will not take effect in 65 of the state's 102 counties on New Year's Day.

• SAFE-T Act Violates Victims' Rights, Separation Of Powers, Judge Says
  

Kenneally, who was one of six attorneys leading the constitutional challenge, called the ruling a "victory."

“This is a victory for the rule of law, which unfortunately the Illinois General Assembly and the Governor disregarded when passing this ‘solution in search of a problem’ legislation,” Kenneally said in a statement Thursday. “It is the legislative process, not the criminal justice system, that is broken in Illinois.

In recent months, Kenneally joined other state prosecutors to argue the SAFE-T Act — a 764-page bill that was first passed in the final hours of a January 2021 lame duck session and was modified with a 308-page amendment introduced and approved in days during the veto session earlier this month — violated the Illinois Constitution.

Since the bill was passed, Kenneally has been vocal about his disdain in the way the it was drafted and enacted.

“Instead of drafting bail reform in collaboration with actual experts, such as judges, prosecutors, police, and defense attorneys who seek justice in courtrooms every day, the General Assembly and the Governor chose to enact the sophomoric ideas of well-financed activists," Kenneally said Thursday. "Instead of an actual deliberative process where the merits of the bill were thoroughly vetted and debated, the General Assembly chose to rush a bill through both houses in the dead of night during an irregular legislative session."

Some provisions of the bill, such as police body cameras and law enforcement training, were upheld.

Cunnington ruled the SAFE-T Act was unconstitutional in that it violated the Victims Rights Act, and unconstitutionally amended the state constitution and violated voters rights.

In his ruling, the judge found that “had the legislature wanted to change the provisions in the Constitution regarding eliminating monetary bail … they should have submitted the question on a ballot to the electorate at a general election.”

Should the defendants — Gov. J.B. Pritzker, Attorney General Kwame Raoul, Senate President Donald Harmon and House Speaker Christopher Welch — opt to appeal the state court ruling, it must be filed with the Illinois Supreme Court. Kenneally said its expected the decision will be appealed — a move that likely could take months to resolve.

“It will be interesting to see what the Illinois Supreme Court does,” Kenneally said. “In view of how well-reasoned Judge Cunnington’s opinion was and Governor Pritzker’s considerable financial involvement in two of the most recent supreme court races, overturning this decision would certainly raise some uncomfortable questions.”

The bill eliminates cash bail and replaces it with an offense-based system of pretrial detention. People who are charged with certain serious crimes and deemed too dangerous to allow for pretrial release, or likely to flee, may still be jailed under the system.

Critics of the cash bail system say it disproportionately harms poor people, giving an advantage to those who are rich and guilty over those who are innocent and less wealthy.

Cunnington is chief judge of the 21st Judicial Circuit, which is made up of Kankakee and Iroquois counties. Last week, he reportedly said he aimed to issue an opinion in the case by Wednesday — four days before the end of cash bail statewide.

“I wish I had two to three months," Cunnington said after hearing oral arguments Dec. 20, the News-Gazette reported.

Suits filed by Kankakee County State's Attorney Jim Rowe and Will County State's Attorney James Glasgow this fall were among the more than 60 combined into one by the Illinois Supreme Court in October.

The complaints asked a judge to find that the act did one of the following:

• violates the Crime Victim's Bill of Rights Article 1, Section 8.1 of the Illinois Constitution
• violates the bail provision in Article 1, Section 9 of the Illinois Constitution
• is an unconstitutional violation of the "single subject rule"
• is an unconstitutional violation of the separation of powers doctrine regarding bail, and is void due to vagueness
• must be declared unconstitutional and repealed because it was passed without three readings on separate days;

Attorneys arguing on behalf of Illinois' governor, attorney general, House speaker and state Senate leader said state's attorneys and sheriffs do not have standing to challenge the pretrial release provisions of the SAFE-T Act because they have no role enforcing them, and they do not injure them.

Because the act's provisions of government pretrial release are enforced by individual judges in criminal cases, that is the proper venue to hear constitutional challenges, they argued in pretrial motions.

During oral arguments, Darren Kinkead, deputy special litigation bureau chief at the Illinois attorney general's office, told the judge the constitutional right to bail at issue belongs to criminal defendants, not law enforcement officials.

“The real dispute here is a policy dispute, not a legal dispute,” Kinkead said, according to the Associated Press.Read more:

• SAFE-T Act Amendment Filed In Final Days Of 2022 Veto Session
• Gov. Pritzker Signs SAFE-T Act Amendment Expanding 'Detention Net'
• Safe-T-Act Lawsuit: Glasgow Wants To Stop Controversial Measure