Amid legal fight, county uses old bail system

One day after the Illinois Supreme Court paused plans to end cash bail and other major changes to pretrial proceedings, Cook County’s judicial system chugged along Sunday in the same way it has for years, even as prosecutors, defense attorneys and judges prepared for the massive shift.

The late-hour ruling by the high court just one day before some of the biggest provisions of the SAFE-T Act were supposed to go into effect had the presiding judge overseeing court on New Year’s Day worried about disorder. But felony defendants moved smoothly through pretrial proceedings Sunday, the first day the accused were supposed to stand for appearances under the new provisions.

“Today was supposed to be the implementation of a new law,” Cook County Judge Mary C. Marubio told defendants and their supporters before presiding over felony bond court proceedings Sunday. “This sounds strange, but you’re going to see a couple hiccups today because we were prepared for implementation of this new act. … We are scrambling to make sure everything is all set.”

The SAFE-T Act eliminates cash bail and reforms pretrial processes across the state, but in recent months, the law has become a lightning rod for critics, including a majority of state’s attorneys across Illinois who said implementing the changes would endanger citizens.

Prosecutors in more than 60 counties, mostly from downstate, sued to stop the no-cash bail policy and other provisions of the act. Kankakee County Judge Thomas Cunnington ruled in their case on Dec. 28, siding with those prosecutors and saying 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.

Following an appeal by Illinois Attorney General Kwame Raoul, the high court’s order late Saturday night halted the abolition of cash bail and other changes to “maintain consistent pretrial procedures throughout Illinois” since Cunnington’s opinion would have left some parts of Illinois handling pretrial hearings differently from other parts of the state.

The court will coordinate an “expedited process” for the attorney general’s appeal, the order said.

Despite Marubio’s warning, bond proceedings Sunday went forward without any major incidents at the Leighton Criminal Court Building, as defendants appeared via live video for bond hearings that sometimes lasted only minutes. Prosecutors and defense attorneys quickly made a case for or against detention, monetary bail or other conditions of release.

The pretrial provisions were approved as part of the 764-page SAFE-T Act, a sweeping criminal justice reform law that supporters said was meant to promote police accountability and create more equitable courts. Much of the SAFE-T Act, which passed in January 2021 and was signed into law by Gov. J.B. Pritzker a month later, has already taken effect. But lawmakers allowed for a roughly two-year ramp-up for counties to prepare to completely revamp their processes for deciding who should remain in jail while awaiting trial.

The new system was slated to put judges, attorneys and other stakeholders in uncharted territory as they navigated one of the biggest overhauls Cook County’s criminal justice system had seen in years.

Under the act, defendants are entitled to an initial hearing, also called a conditions hearing, followed by a more substantive detention hearing within 48 hours for those who prosecutors seek to keep in jail. Prosecutors seeking to detain defendants likely would be tasked with providing more evidence than they do for current bond hearings.

Instead, on Sunday, Cook County public defenders and prosecutors stuck to the same way bond court has proceeded for years. Marubio did order monetary bond for a handful of defendants based on their risk of not showing up and their potential danger to the community.

She assigned a $10,000 D-bond for an Indiana man prosecutors alleged was stopped outside a clothing store possessing an untraceable “ghost” gun and without a state-mandated firearm owner’s identification card. He was already on probation for a gun offense earlier this year. Another man, already wanted for fleeing an arrest, was assigned a $5,000 D-bond after prosecutors said police stopped him with a loaded ghost gun, as well as cocaine and other drugs. Both are obligated to pay 10% of that bond amount.

Advocates for bail reform have long criticized the old system for setting up circumstances in which people could be incarcerated simply because they are too poor to post bail. The no-cash bail policy, though, was used by Republicans and other opponents in this past election to paint Pritzker and his Democratic allies as weak on crime.

Sarah Staudt, director of policy for Chicago Appleseed Center for Fair Courts and an advocate for ending money bail, told the Tribune the delay is “frustrating for those of us who have been working on this bill and this issue for six years,” particularly because “the issues that are being raised here are issues that have been raised in challenges to the constitutionality of ending or reducing the use of money bail across the country. They have been unsuccessful everywhere because they’re wrong.”

Staudt said she’d observed test runs in which county stakeholders had troubleshot new hearing procedures in recent months and did not expect the transition to be a difficult one. “I don’t think confusion is going to reign in Cook.”

She said she hopes to hear more about the schedule for Supreme Court proceedings soon. “Every single day that we maintain the money bail system, we are maintaining an injustice. That’s something the legislature recognized two years ago, which is why money bond was ended,” Staudt said.

Cook County State’s Attorney Kim Foxx’s office did not return requests for comment over the weekend.