Prosecutors fighting no-cash bail law say question should have gone to voters

Illinois prosecutors challenging a state law that eliminated cash bail argued in a court filing Friday that the measure is “doomed” because lawmakers did not put the matter to voters as a proposed amendment to the state constitution.

The filing was made in an ongoing appeal of a Kankakee County judge’s ruling that found that the pretrial provisions of the sweeping SAFE-T Act violate the state’s constitution. The ruling from Judge Thomas Cunnington in December caused confusion across the state less than two weeks before cash bail was set to be abolished.

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.”

The plaintiffs, more than 60 state’s attorneys, most from downstate, wrote in the filing that “the failure to seek a referendum amending the constitution and to seek input from the voters to convert Illinois from a traditional bail state to a risk assessment-based system doomed its attempt.”

Among other arguments, the plaintiffs contend that the pretrial provisions violate the constitution’s separation of powers clause by taking away power from judges, and argue it is “beyond question” that Illinois judges have the authority to issue monetary bail.

“In its haste to fundamentally change Illinois’ pretrial detention system, the General Assembly bypassed the critical step of allowing the voters to weigh in on these significant changes to the bail provision of the Illinois Constitution through a legislatively referred constitutional amendment,” the plaintiffs argue in their brief.

The SAFE-T Act, a series of sweeping criminal justice reforms, was passed and signed into law by Pritzker in February 2021, but lawmakers allowed a longer ramp-up for courts to prepare for the pretrial changes, which were meant to take effect on Jan. 1 of this year.

Proponents of the measure have argued that cash bail contributes to inequities in the criminal justice system without actually making the public safer. Detractors believe the policy will allow too many dangerous criminals back on the streets. The no-cash bail provision was used by Republicans and other opponents in this past election to paint Gov. J.B. Pritzker and his Democratic allies as weak on crime.

In its opening brief defending the measure, filed late last month, the Illinois attorney general’s office pushed back on assertions that the law infringes on judicial power and other arguments made in the lawsuit filed by county prosecutors.

“The legislature has for decades played a substantial role in determining how courts exercise that authority, including by withdrawing judicial discretion to impose certain sentences for certain crimes,” the attorney general’s brief argued.

The AG’s office has until Feb. 27 to respond to the arguments from the state’s attorneys. The high court then will hear oral arguments on the matter, likely in March.

In addition to removing money as a factor in release decisions, the measure 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 a defendant, designed to provide a more comprehensive look at whether someone should be released or jailed pretrial.