Judge Rules Illinois' Elimination of Cash Bail Unconstitutional

The governor and attorney general say they’ll appeal to the state Supreme Court.


Just days before major bail reforms in Illinois were set to begin, a county judge has ruled the changes violate the state's constitution.

In early 2021, lawmakers passed a massive bill full of criminal justice reforms called the Safety, Accountability, Fairness, and Equity-Today Act, or SAFE-T Act. Among the many changes included in the bill was the elimination of cash bail. Rather than demanding money in exchange for pretrial freedom, the courts would have to evaluate each defendant to determine whether he may be a danger to others or a flight risk, and then determine nonfinancial release guidelines. Full pretrial detention could only be ordered if the court decided the danger or flight risk was just too high to justify someone's release.

There were a host of crimes for which judges were cleared to detain defendants, including many firearm offenses, human trafficking, stalking, violent felonies, and domestic violence charges. Nevertheless, throughout 2022, opponents attacked the reforms, some falsely claiming that the changes would require people charged with crimes like second-degree murder and aggravated battery to be released without bail. Lawmakers further amended the rules earlier this month to make it clearer that judges have the authority to detain defendants they deem to be a threat to others or the community.

Prosecutors and police departments nevertheless opposed the reforms and around 60 different law enforcement agencies and prosecutors filed 64 lawsuits, arguing that the bail portion of the law violated the state's constitution. On Wednesday, Kankakee County Chief Judge Thomas W. Cunnington agreed.

Cunnington didn't say that the bail reforms are bad or wrong—he ruled that lawmakers didn't pass the law properly and that it infringes on the power of the judicial branch. The state's constitution specifically lists guidelines for bail and pretrial detention, and Cunnington determined that "had the Legislature wanted to change the provisions in the Constitution regarding eliminating monetary bail as a surety, they should have submitted the question on the ballot to the electorate at a general election." In other words, lawmakers should have gotten the public's approval via a ballot referendum and changed the constitution's text.

Cunnington also ruled that the bill runs afoul of crime victim rights protections found in the state's constitution, which require courts to consider the rights of victims and their families when setting bail amounts. Under Cunnington's logic, the new bail law would have stopped judges from setting bail amounts.

But much of the meat of Cunnington's ruling is specifically about how the state constitution separates the legislative branch from the judicial branch. While it may seem as though lawmakers should have the power to legislatively establish guidelines for how the courts operate, Cunnington noted that Illinois Supreme Court precedents have determined that there are limits. How a court is administered falls under the purview of the judiciary, and the state's Supreme Court back in 1975 determined that bail is "administrative" in nature. Over several state precedents, the top court has concluded that the judicial branch has independent authority over bail guidelines.

Cunnington ruled, then, that the bail reforms of the SAFE-T act violate the separation of powers between the legislative and judicial branches. "Because…all judges will be categorically prohibited from even considering in their discretion a monetary component to the conditions of release," he wrote, "the judiciary's inherent authority to set or deny bond will necessarily be infringed in all cases."

This would seem to doom the bail reforms if it's upheld, but Cunnington rejected the plaintiffs' request for a preliminary injunction to stop the reforms from being launched in January. Illinois Gov. J.B. Pritzker and Attorney General Kwame Raoul say they're going to appeal the ruling to the Illinois Supreme Court. Raoul noted in a statement that the ruling applies only in the cases that Cunnington ruled on in the 21st Judicial Circuit. According to Kankakee County State's Attorney Jim Rowe, that means the bail reforms won't be launched in the 65 counties that participated in the lawsuits, but will be implemented in 37 others.

It appears that Illinois will follow through with implementing bail reform changes knowing that they may ultimately be struck down by the state's Supreme Court. That said, if the bail reforms work out well, judges would be able to voluntarily maintain them even if the top court throws out the legislative mandate. If the reforms stop courts from using money to determine who gets stuck in pretrial detention and it doesn't affect crime rates or court compliance, then judges should consider keeping them. Bail was never meant to be a mechanism for keeping people detained over low-level offenses just because they can't afford to pay for their release.