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A judge ruled the portion of the SAFE-T Act ending cash bail is unconstitutional

Gov. JB Pritzker signs the criminal justice reform bill into law at Chicago State University in February of 2021 as sponsors and supporters look on.

A Kankakee County judge has ruled that the portion of the state’s controversial SAFE-T Act that ends cash bail is unconstitutional.

The judge’s ruling late Wednesday comes just four days before cash bail was set to be abolished across Illinois as part of the massive criminal-justice reform law.

In his ruling, Kankakee County Chief Judge Thomas W. Cunnington wrote that “the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat.”

Attorney General Kwame Raoul stressed in a statement that the ruling is binding only in a limited number of judicial circuits in the state that were covered under 64 cases challenging the law under Cunnington.

But Raoul said he planned to appeal the judge’s ruling directly to the Illinois Supreme Court.

It wasn’t immediately clear whether the ruling would halt the end of cash bail next week. The judge did not issue an injunction.

The case before Cunnington was the result of sheriffs and prosecutors from across the state combining roughly 60 lawsuits, alleging the law violated Illinois’ Constitution.

With the elimination of cash bail, judges are expected to decide whether defendants charged after the start of the year will be locked up while awaiting trial based on their alleged crime and whether they pose a threat or are likely to flee.

During oral arguments last week, Kankakee County State’s Attorney James Rowe urged Cunnington to send the law back to the Illinois General Assembly, where he said lawmakers would then be forced to pass its provisions “the right way, the safe way.”

Darren Kinkead of the Illinois attorney general’s office argued that Rowe and a collection of prosecutors and sheriffs, who are suing to stop the law, have “very strong feelings.” But he said they boiled down to a policy disagreement, not a legitimate legal dispute.

Supporters of the law, which had been harshly criticized throughout the 2022 election cycle, say it is intended to address long-standing public safety issues, police distrust and a system that lets wealthy defendants buy their way out of jail.

Gov. J.B. Pritzker recently signed into law several changes to the bill, which lawmakers passed during the last day of the veto session this month.

One of the revisions addressed a target of many political attacks: an amendment adding felonies and crimes such as second-degree murder, kidnapping and arson to charges that qualify someone to be detained while awaiting trial.

The amendments also set up guidance for those already in jail, including an option for detainees, and prosecutors, to petition for a hearing to determine whether those defendants should be released.

In a statement Wednesday night, Pritzker called the ruling a “setback” and said he looks forward to an appeal going to the Illinois Supreme Court.

“The General Assembly and advocates worked to replace an antiquated criminal justice system with a system rooted in equity and fairness,” Pritzker’s statement read. “We cannot and should not defend a system that fails to keep people safe by allowing those who are a threat to their community the ability to simply buy their way out of jail.”

Richard Kling, a criminal law professor at Chicago-Kent College of Law, said Wednesday that he was not surprised by the ruling.

“The arguments raised all had merit, they weren’t frivolous,” Kling said. He noted that Cunnington did not issue an injunction along with his ruling, meaning that the decision will not stop jurisdictions that are not among the plaintiffs in the suit from implementing the provisions of the SAFE-T Act. However, Kling expected judges and prosecutors across the state would likely stall implementation of bond reforms mandated by the law until after the state Supreme Court has ruled.

In Cook County, where judges, prosecutors and staff have been training on provisions of the SAFE-T Act for months, Kling said the decision’s impact might be minimal. The jail population in Cook County has dropped dramatically since 2017, when Chief Judge Timothy Evans reorganized the bond courts and mandated restrictions on the use of money bail.

“In Cook County, I would not think there will be much change,” Kling said.

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