On December 28, 2022, Judge Thomas Cunningham of Kankakee County ruled that the portions of Illinois’ Safety, Accountability, Fairness and Equity-Today Act (“Safe-T Act”) eliminating the pre-trial release and bail reforms set to begin on January 1, 2023 were unconstitutional.  There were 65 cases from 65 counties who filed lawsuits alleging that the Safe-T Act was unconstitutional with respect to the provisions concerning pre-trial release and bail.  The Court initially held that the County Sheriffs suing the Defendants (the Illinois Attorney General Kwame Raoul; Governor Pritzker; Illinois Speaker of the House Emanuel Welch; and, Illinois Senate President Donald Harmon) had standing to bring their lawsuit by reasoning that the additional risk to sheriff’s deputies to serve additional summonses and warrants “puts the Sheriff’s staff at increased risk” and is thus a “…clear matter of law enforcement safety.” 

The Court then turned to the Defendants’ argument that eliminating monetary bail violated the Illinois Constitution, finding “…that the provision eliminating monetary bail in all situations in Illinois, prevents the court from effectuating the constitutionally mandated safety of the victims and their families.” This section of the Illinois Constitution is intended to serve “as a shield to protect the rights of victims.” People v. Richardson, 196 Ill.2d 225, 237 (2001), discussing Ill. Const. Art. I, § 8.1.  The Court further reasoned: “[t]he constitutional requirement of bail is meant to help ensure victims’ safety, the defendant’s compliance with the terms of release, and the defendant’s appearance in court. The Act instead leaves courts with no ‘amount of bail’ to fix and confines the court to legislatively enacted standards for detention.”  As such, those provisions were found to be facially unconstitutional, and the Court concluded that: “[b]ecause, as the Illinois Supreme Court has determined, 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, the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat. Therefore, the court finds that Public Acts 101-652 and 102-1104 as they relate only to the pretrial release provisions do violate this separation of powers principle underlying our system of governance by depriving the courts of their inherent authority to administer and control their courtrooms and to set bail.   Elrod, supra.

The remainder of the Safe-T Act’s reforms regarding police accountability, body cameras, officer training and other criminal justice issues remain in place, with many of the statutory provisions taking effect on January 1, 2023.  Despite the ruling, Illinois Attorney General Raoul stated: “[a]lthough 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.”  Attorney General Raoul plans to appeal the decision directly to the Illinois Supreme Court.  As of today, the Safe-T Act’s requirements related to cash bail do apply to many Illinois counties, including Cook, DuPage, Kane and Lake starting January 1st, while counties such as Will, McHenry, Kankakee, DeKalb, LaSalle, Grundy and Kendall are exempt from the cash bail requirements.  Given the distinctions between counties, and the broad reach of the law, please do not hesitate to reach out to our team to discuss any lingering issues and questions you may have on the Safe-T Act and its applicability to your police department, officers, and county. 

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