Effect of judge's ruling regarding end of cash bail differs across the suburbs

A Kankakee County judge's ruling late Wednesday that ending cash bail in Illinois is unconstitutional does not apply to courts in Cook, Lake, DuPage or Kane counties, but could throw a wrench into how cases will be handled in other parts of the state.

Judge Thomas Cunnington found provisions of the law eliminating cash bail violated the separation of powers clause of the Illinois Constitution by "depriving the courts of their inherent authority to administer and control their courtrooms and to set bail."

The ruling was an 11th-hour victory for state's attorneys and sheriffs seeking to block cash bail reforms set to take effect on Jan 1. But prosecutors say the ruling covers only those counties - including Will and McHenry - that signed onto a consolidated lawsuit attempting to stave off the move to a no-cash bail system.

Illinois Attorney General Kwame Raoul said his office intends to appeal the circuit court's decision directly to the Illinois Supreme Court.

"Although the court's decision is binding in the 64 cases that were consolidated in Kankakee County, it is important to note that it is not binding in any other case, including those involving criminal defendants in any of the state's 102 counties," Raoul said in a statement.

The judge's ruling could still put the 30-plus counties that were not party to the lawsuit in a "delicate situation," said Harold Krent, a professor at Chicago-Kent College of Law.

If the Illinois Supreme Court affirms the Kankakee decision, Krent said, then counties that did not sue would face an "administrative headache" determining whether those who were previously released prior to trial pursuant to the SAFE-T Act should be re-apprehended.

Cook, DuPage, Lake and Kane counties were not part of the lawsuit.

McHenry County State's Attorney Patrick Kenneally, one of the suburban prosecutors leading the legal battle against the SAFE-T Act, called the judge's decision "a victory for the rule of law."

Kenneally's statement noted the state can seek an "emergency stay" before the Illinois Supreme Court that would delay the judge's ruling and allow the bail provisions to go into effect on Jan. 1. A formal appeal "will likely take months to resolve," Kenneally said.

Krent said he expects the higher court to expedite the case because "it's such an important issue, and it has caused so much controversy across the state."

"If some entity decided to file an emergency motion for a stay across the entire state and then they perhaps ask for expansion to cover other counties, it would be unusual, unorthodox," Krent said, "but that could happen, but it would not happen automatically."

In his ruling, the Kankakee judge wrote that "the administration of the justice system is an inherent power of the courts upon which the legislature may not infringe and the setting of bail falls within that administrative power."

But Krent, a separation of powers expert, said the Kankakee ruling shortchanged "the long-standing interests of the General Assembly in defining what is a crime and what is not a crime, and then defining what is the permissible sentencing bounds for each of these crimes."

Judges can detain defendants facing first-degree murder, criminal sexual assault, home invasion and other charges that, upon conviction, would require a mandatory prison sentence. Late last month, legislators amended the SAFE-T Act to expand detainable charges. In addition, judges can order defendants held in custody if prosecutors convince them an individual poses a flight risk or a threat to someone else.

"We can all draw the lines differently," Krent said, "but I think ... the Kankakee court didn't notice that this was a reasonable effort under the Illinois constitution to try to accommodate the interests of the public in being safe, with having a fair and equitable criminal justice system that didn't automatically make freedom pending trial contingent upon someone's wealth."

State Sen. Don DeWitte, a St. Charles Republican, applauded the judge's ruling, saying in a statement it "clearly outlines the constitutional overreach of the Democrats' legislation."

But DeWitte said "utter chaos" is "certain to ensue" since the decision was handed down just three days before counties are expected to implement no-cash-bail provisions of the law.

In a joint statement, the Cook County state's attorney and public defender said their offices look forward to the higher court's review, but they're proceeding with a "smooth and successful implementation of the SAFE-T Act in its entirety" on Jan. 1, as planned.

"This lawsuit and resultant ruling are the culmination of a concerted effort to undermine reform; those who attempt to vilify these reforms are proponents of a system that has contributed to the racial injustices of mass incarceration and the over-policing of Black and Brown communities, which has diminished safety, resiliency and trust for many residents," the statement read.

A spokesman for DuPage State's Attorney Robert Berlin did not directly comment on the judge's ruling. Berlin's office will "wait and see what the Supreme Court does," the spokesman added.