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Judge Says IL Elimination of Cash Bail Is Unconstitutional

Illinois' plan to abolish cash bail in 2023 faced a severe setback when a downstate county judge ruled that doing so would violate the Illinois Constitution, reports Courthouse News. The ruling by Kankakee County Chief Judge Thomas Cunnington addresses the sweeping Illinois criminal justice reform law known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T). The state legislature passed the law, which includes the abolition of cash bail, in January 2021, and Gov. Governor J.B. Pritzker signed it. Some elements of the SAFE-T Act, such as a statewide ban on police chokeholds, have been in place for over a year, but cash bail was only set to end come New Year's Day 2023. At the signing, Pritzker called the end of cash bail "a substantial step toward dismantling the systemic racism that plagues our communities, our state and our nation and brings us closer to true safety, true fairness and true justice." Though progressives have pressured state lawmakers to abolish cash bail for years, calling it a way for the wealthy to buy their way out of jail and saying people of color are generally less able to afford to post bond, conservative lawmakers and prosecutors opposed the legislation. Kankakee County State's Attorney Jim Rowe filed a lawsuit in September alleging the SAFE-T Act violates the separation of powers between the legislative and judicial branches of state government.


Ed Yohnka of the American Civil Liberties Union criticized the timing of the suit as part of a conservative political project amid the 2022 election cycle. Political or not, Cunnington partially agreed with Rowe in his Wednesday night ruling. The judge found segments of the SAFE-T Act dealing with pretrial release reform unconstitutional, leaving the provisions dealing with police and prison reform untouched. The judge said that for any change to the state's cash bail protocol to be legitimate, it should have been put before voters directly. Pritzker called the ruling a "setback," while Illinois Attorney General Kwame Raoul will appeal Cunnington's decision to the Illinois Supreme Court. Raoul's office said that Cunnington's decision did not apply to any criminal cases while Rowe claimed Kankakee County and the other 64 counties party to his suit would continue to utilize cash bail next year. Yohnka noted that Cunnington's did not issue an injunction compelling specific action from state lawmakers or law enforcement. The lack of formal instruction, he said, likely left the question of cash bail up to individual counties' discretion until the state's high court rules.

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