Illinois bail reform change blocked after judge rules portion of SAFE-T Act unconstitutional

KANKAKEE, Ill. (WLS) -- A win for dozens of prosecutors throughout Illinois. Cash bail could stay in place for now in at least 64 counties after part of the SAFE-T Act was ruled unconstitutional. However, many of the most populous counties will still see cash bail end Sunday.

A Kankakee County judge ruled Wednesday that the portion of the SAFE-T Act, that ends cash bail in Illinois, is unconstitutional after states attorneys in 65 Illinois counties challenged the new law in a hearing last week.

In his 33-page opinion, Judge Thomas Cunnington cited the need for a separation of powers, saying "...the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat."

However, Illinois' attorney general disagrees.

"In fact, with the recent amendments to the SAFE-T Act, I think a judge's discretion with regards to pretrial detention is expanded," Attorney General Kwame Raoul said.

RELATED: Illinois SAFE-T Act under fire in court, where opponents say it violates state Constitution

Raoul and conservative prosecutors, like McHenry County State's Attorney Patrick Kenneally, argued the legalities of a judge's ruling against the provision ending cash bail in the SAFE-T Act.

"It's important to note that this judge did not enter an injunction, so nobody is restricted from implementing the SAFE-T Act in any of the 102 counties," said Illinois Attorney General Kwame Raoul.

"It's a huge victory and it's a victory for the rule of law," Kenneally said.

But now comes the confusing part.

According to the Kankakee County State's Attorney, the ruling means the pre-trial release and bail reforms spelled out in the law will not take effect in those counties come the first of the year.

"It's going to inject an enormous amount of confusion in the Illinois court system writ large. You're going to have different counties doing different things complying with different laws depending on the individual decisions of judges," Kenneally said.

After this new ruling, cash bail will remain in McHenry, DeKalb, Kendall, Grundy, Will, and Kankakee counties in the Chicago area, while it will still end January 1 in Lake, Kane, DuPage, Cook, and 34 other counties in the state. Cook County reaffirmed Thursday its intention to end cash bail.

The judge's ruling does not affect the scores of other counties, including Cook, that were not part of the lawsuit.

Read the judge's decision here

The portion of the law would have allowed judges to decide if a defendant does not pose a public safety risk, they could be released without posting cash bail.

ABC7 Chicago Legal Analyst Gil Soffer explains why Kankakee County Circuit Court Judge Thomas Cunnington believes this portion of the SAFE-T Act is unconstitutional.

"Specifically what this judge is saying is that judges, the judiciary, has the inherent power to make decisions about pre-trial release and bail, and, in this case, the legislature inappropriately took that away from the judiciary, so they found it was a violation of separation of powers," Soffer said.

Other parts of police accountability and training will still take effect on that date.

RELATED: What is the Safe-T Act?

The Illinois Attorney General's office is expected to appeal the ruling to the Illinois Supreme Court.

"The Supreme Court is going to make its decision on its reading of the law and its interpretation of the Illinois constitution," Soffer said.

In a statement, Gov. JB Pritzker wrote, "Today's ruling is a setback for the principles we fought to protect through the passage of the SAFE-T Act. The General Assembly and advocates worked to replace an antiquated criminal justice system with a system rooted in equity and fairness. 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. I thank the Attorney General for his work on this case and look forward to the Illinois Supreme Court taking up the appeal as soon as possible."

Kenneally looks at it differently.

"Defendants have a right to monetary bail. It's in the constitution," he said.

State Republican leaders were applauding the decision Thursday morning.

"The SAFE-T Act as we have said limits judicial discretion by eliminating cash bail, and this opinion makes that clear," said Rep. Patrick Windhorst, R-Metropolis.

Kankakee County State's Attorney Jim Rowe wrote in part, "(The SAFE-T Act) amended the State Constitution and eroded the constitutional protections of the Victim Rights Act, all while disenfranchising the people of their Constitutional right to vote on such reforms."

Illinois Attorney General Kwame Raoul said in a statement, "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. To definitively resolve this challenge to the pretrial release portions of the SAFE-T Act, Governor Pritzker, the legislative leaders named in the consolidated cases and I intend to appeal the circuit court's decision directly to the Illinois Supreme Court, where we will ask the court to reverse the circuit court's decision.

"Most of the SAFE-T Act's provisions have been in effect for more than a year, and regardless of today's circuit court decision, all parts of the SAFE-T Act, including the pretrial release portions addressed in the court's decision, will go into effect Jan 1. For instance, the right of individuals awaiting criminal trials - people who have not been convicted of a crime and are presumed innocent - to seek release from jail without having to pay cash bail will go into effect in a few short days, despite the court's ruling against those provisions. Illinois residents in all counties should be aware that the circuit court's decision has no effect on their ability to exercise their rights that are protected by the SAFE-T Act and the Illinois Constitution."

WATCH: What happens next after judge rules part of SAFE-T Act unconstitutional?

What happens next after a judge rules part of the Illinois SAFE-T Act is unconstitutional?

"Today's ruling is a victory for the often neglected victims of crime and the men and women of law enforcement who wear the badge every day. Legislation of this magnitude must not only be judged on substance, but also on process. In that regard, the Illinois Democrats failed Illinoisans," House GOP Leader Jim Durkin said. "In order to fix this one-sided, anti-law enforcement, and anti-victim act, it is imperative to have a transparent and substantive negotiation with all interested parties, not just a few stakeholders and political insiders. The people of the State of Illinois deserve nothing less."

Legal experts said there are real questions to the validity of the ruling.

"The court short-changed the legislature's longstanding interest in defining what is a crime, defining what is a sentence for a particular crime, and defining when bail should be allowed or not allowed," said Professor Harold Krent, Kent College of Law and separation of powers expert.

The ACLU of Illinois Communications Director Ed Yohnka agrees said the ruling only adds uncertainty to the Illinois Legal system.

"It creates doubt and confusion across the state and again I think that's why it's so critical that the attorney general has made clear that he is going to appeal this to the Illinois Supreme Court as soon as possible," Yohnka said.

The American Civil Liberties Union also released a statement, saying "Despite this ruling, the good news is that the money bond system in Illinois' most populous counties ends on January 1, 2023. This means that while this decision is appealed, many people across the state no longer will be held in jail before trial simply because they lack access to resources necessary to meet a money bond.

"While we disagree with the court's findings on the money bond issue, it is heartening to see that the court swept aside a series of process arguments that largely ignored the years of work that went into drafting, debating and adopting the SAFE-T Act.

"Further, we are encouraged that the Attorney General clearly indicated an appeal to the Illinois Supreme Court is forthcoming. We are confident that money bond ultimately will be eliminated across the entire state."

There are many wide reaching changes and reforms in the SAFE-T Act that are not affected by this ruling and will go into effect state-wide on January 1.

Attorney General Kwame Raoul plans to appeal this ruling impacting cash bail directly to the Illinois Supreme Court.

"We're going to ask the Illinois Supreme Court to declare the entire act unconstitutional and make it applicable to the entire state," Kennealy said.

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