Illinois attorney general files brief with state Supreme Court contesting ruling that blocked bail reform

The Illinois attorney general’s office on Thursday filed its opening argument with the state’s highest court as it seeks to overturn a judge’s ruling that found parts of the controversial SAFE-T Act unconstitutional.

Among the goals of the landmark criminal justice bill was the elimination of cash bail in the state, which would have made Illinois the first state in the nation to do so.

The bail reform was to go into effect Jan. 1, but was halted at the last minute after Kankakee County Chief Judge Thomas Cunnington sided with a group of prosecutors and sheriff’s offices opposed to the law.

The opponents filed 64 nearly identical lawsuits challenging the reform, known as the Pretrial Fairness Act, but they were consolidated into a single case before Kankakee County Chief Judge Thomas W. Cunnington.

On Dec. 28, Cunnington ruled that part of the act violated a requirement in the state constitution that requires defendants be bailable "by sufficient sureties," except for certain offenses. He also found that it violated the separation of powers between the judiciary and legislature.

"The appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat," Cunnington wrote in his ruling.

In its filing Thursday, Attorney General Kwame Raoul’s office argued that Cunnington’s decision was "flawed," arguing that the state constitution does not require Illinois "to maintain a system of monetary bail."


"The circuit court’s contrary decision should be reversed," the office contended.

The state’s constitutional language on bail seeks to generally assure that a defendant who is presumed innocent has the right to seek pretrial release while their case is pending, according to the attorney general’s office.

That language, it argued, doesn’t explicitly include monetary bail. The attorney general’s office also argued that history was on its side, stating "monetary bail was all but unknown at the time the 1818 Constitution was drafted."

At that time, the attorney general’s office stated, the continued appearance of defendants was assured by promises by their friends and family to guarantee they would show up for trial.

Raoul’s office also cited dictionary definitions of bail going back to before the United States was a country that never connected bail with the act of putting down a cash deposit.

"To be sure, defendants released before trial, or ‘bailed,’ historically were released with conditions, both monetary and non-monetary, meant to assure their appearance at trial. But the act’s pretrial release provisions permit a court to do just that," the attorney general’s office maintained.

The filing also argues that significant case law gives the legislature the authority to set policy, and said Cunnington’s reasoning for finding that the act violated the separation of power "is badly flawed."

The Supreme Court, the filing argued, "has never held that the General Assembly unduly infringes upon that power by setting terms and conditions under which it can be exercised."

Opponents of the act must file a response by Feb. 17. Oral arguments are expected in March, but a date has not been set.

In addition to bail reform, the SAFE-T Act also addresses long-standing public safety issues, some of which have already taken effect. Provisions set a requirement that all police officers in the state be equipped with body-worn cameras and that services for victims of crimes be expanded.