Counties in limbo after judge rules parts of SAFE-T Act unconstitutional

Published: Dec. 29, 2022 at 6:45 PM CST
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PEORIA (25 News Now) - More than half of Illinois counties will keep cash bail in place when the new year begins, but it’s not clear what the rest will have to do.

More than 60 counties filed a lawsuit calling the elimination of cash bail unconstitutional, which is one part of a 700-plus-page bill passed by the Illinois General Assembly in the early hours of January 2021. A Kankakee Circuit judge ruled in their favor, declaring the law invalid. However, the jurisdiction of the Circuit court doesn’t spread statewide, which means that the invalidity of the law only applies to those who filed suit against the judge.

“A trial court is not a court of review... so its decision is not precedent in trial courts in other counties,” Professor of Government and Politics at Illinois State University Thomas McClure said.

Even that, however, is unclear. Peoria County State’s Attorney Jodi Hoos announced Thursday morning her office would hold off on eliminating cash bail until the state’s Supreme Court weighed in. Since the Circuit Court ruled the law unconstitutional, she believes she cannot enforce it. Whether or not that’s a violation of the SAFE-T Act come January 1 is unknown.

McClure said counties could bring a case to their circuit courts and see the law struck down there. There have been several theories on who can and will determine if a county will follow the ruling.

Attorney General Kwame Raoul has already made a motion to the state Supreme Court. Whatever ruling happens there will impact the entire state.

Tazewell County State’s Attorney Kevin Johnson was one of the attorneys who filed suit. His office was preparing for the elimination of cash bail, now they’re on hold. However, he’s waiting to see what the Supreme Court does, if anything.

“We don’t know what the Supreme Court is going to do today, tomorrow, or even this weekend,” Johnson said. “We’re still prepared as if it’s going to happen.”

A breakdown of 21st Circuit Court Judge Thomas Cunnington is below, separated by each argument laid out by States Attorneys.

Violates the state constitution

Several of the arguments made by States Attorneys hinge on the fact that the elimination of cash bail in the SAFE-T Act violates existing language in Illinois’ constitution. Since the law was passed without a vote from the public, the counties argue it’s not a proper amendment and therefore unconstitutional.

There are two major constitutional violations mentioned in the decision. First, the SAFE-T Act violates language in the Crime Victim’s Rights portion of the state’s constitution. Victims are entitled to feel safe and secure, and their safety must be considered in setting the amount of monetary bail.

“In eliminating monetary bail, the discretion constitutionally vested to the courts to protect victims and their families by this method are gone,” the decision states. The decision goes further to suggest getting rid of cash bail will hurt the court’s ability to protect crime victims.

The other violation argues the legislature is encroaching on the judicial branch’s powers with the SAFE-T act.

The Illinois Constitution states each branch of government shall not “exercise powers properly belonging to another.”

Essentially the counties argue by eliminating cash bail, the legislature is taking away the court’s discretion. Cunnington considers setting monetary bail as a power of the judiciary for as long as common law has existed.

“Bail exists, as it has for centuries, to balance a defendant’s rights with the requirements of the criminal justice system, assuring the defendant’s presence at trial, and protection of the public,” Cunnington writes.

The state didn’t defend its reasoning for removing monetary bail, according to Cunnington. Previously, proponents of the SAFE-T Act argued this would put full discretion in the court’s hands, by giving the judge the ability to decide whether or not someone is detained before their trial.

Cunnington ruled the SAFE-T Act violates the separation of powers.


The Illinois constitution requires every law in the state to focus on only one subject. It’s meant to prevent other legislation from slipping into a bill that otherwise would not pass on its own, or prevent “bundling unpopular legislation with more palatable bills,” as quoted in the decision.

The counties in the suit argued the 700-page bill addressed 265 different laws and violated that single subject rule. The state defended that each part of the bill was related to criminal law. Cunnington ruled with the state, finding that each law was connected to criminal justice.

Three readings

Illinois’ constitution requires each bill to be read three times in each chamber of the legislature before it can go to the Governor’s desk for signing.

Each reading must occur on a different day. However, loopholes in the process result in legislators getting a bill to the final reading, then amending it to add in different bill language before passing it a final time. The counties that filed suit argued this violated the constitutional rule, but Cunnington dismissed it, citing that both the House Speaker, Senate President, and minority leaders in both chambers agreed that proper procedures were done.

Unconstitutionally vague

The States Attorneys filing suit argued the law language was too vague to be properly enforced. This was quickly dismissed by Cunnington, who ruled with the State that the law was clear enough.

The counties also asked for a preliminary injunction to delay the law’s effectiveness. This was shot down by Cunnington, because he declared that portion of the SAFE-T Act unconstitutional and invalid, therefore a preliminary injunction was not needed.