Come Sunday, judges in Chicago and most other parts of the metro area will stop setting cash bail for people accused of crimes, with the decision to jail people ahead of trial depending solely on whether the judge deems them a public threat or flight risk.
But judges in Joliet, Kankakee and dozens of other downstate counties covering more than half the state map could head into the new year with the current system intact, setting dollar amounts that defendants must pay for their pre-trial release.
That’s the murky situation facing Illinois courtrooms this weekend and beyond amid an ongoing legal dispute over the most controversial provision of the SAFE-T Act, the sweeping criminal justice reform package that had promised to eliminate cash bail statewide starting Jan. 1.
Cook County leaders on Thursday asserted they will move ahead with the abolition of cash bail on New Year’s Day, despite a ruling a day earlier from a Kankakee County judge who sided with sheriffs and prosecutors in 64 other counties suing to halt the new system.
Cook County Board President Toni Preckwinkle, State’s Attorney Kim Foxx and the offices of the public defender and the circuit court clerk issued a joint statement noting they weren’t party to that lawsuit and thus will proceed with “full implementation of the SAFE-T Act on January 1, 2023 as planned.”
“As leaders in Cook County’s criminal court system, we remain committed to the principles of pretrial fairness and the elimination of money bond,” they said in a joint statement. “The historic reforms in the Pretrial Fairness Act represent an important step toward improving community safety, addressing decades of harm to Black and Brown communities, and guaranteeing equal justice for all under the law — not only for those who can afford to pay.”
They added: “We look forward to welcoming in this historic reform for Cook County in the new year and are confident the rest of the state will join us soon.”
That was a jab at prosecutors and sheriffs in 64 counties where bail reform is unlikely to take effect this weekend. Their lawsuit argues the bail provision violates the separation of powers outlined in the Illinois Constitution.
Kankakee County Chief Judge Thomas W. Cunnington agreed in his Wednesday decision, ruling “the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat.”
Democratic Illinois Attorney General Kwame Raoul has said he would appeal that decision, which he argues is binding only in a limited number of judicial circuits in the state. A Raoul spokesperson insisted the bail reform provision will be in effect for residents in all 102 counties as of Jan. 1.
“As of Jan 1, individuals — who are presumed innocent until proven guilty — will have the right to seek release from jail pending their trials — as allowed by the SAFE-T Act and the Illinois Constitution,” the spokesperson said in an email. “Judges in those individual cases will have to decide if they agree with Judge Cunnington’s decision.”
Republican leaders applauded that decision but said it creates “potential chaos” with different rules in different areas.
“We now will have — if nothing is done between now and Jan. 1 — there will be unequal application of this law throughout the state of Illinois,” said outgoing Illinois House Republican Leader Jim Durkin. “That is not right.”
Democratic leaders and reform advocates said they were confident that decision would be overturned by the Illinois Supreme Court, with bail still poised to become a thing of the past in Cook and 37 other counties in the meantime.
The counties unaffected by the suit account for about two-thirds of Illinois’ total population, including Cook, Lake and DuPage. Will, McHenry and Kankakee counties are among the roster of mostly downstate counties that sued to stop the bail reform measure.
Gov. J.B. Pritzker called Cunnington’s decision “a setback for the principles we fought to protect.”
Benjamin Ruddell, director of criminal justice reform at the American Civil Liberties Union of Illinois, called it “good news … that the money bond system in Illinois’ most populous counties ends on January 1, 2023.”
“We are confident that money bond ultimately will be eliminated across the entire state,” Ruddell said in a statement.
Other major provisions of the SAFE-T Act are still poised to go into effect or already have in the nearly two years since the legislation was signed by Pritzker.
Among the changes still on the way are diversions of low-level drug crimes to treatment programs, modernized sentencing laws, updates to make it easier for victims to receive compensation, expanded training for police officers and wider use of body cameras.
Raoul’s office said it would appeal Cunnington’s decision “shortly,” but it hadn’t happened by late Thursday evening.