It was a no-brainer that the Illinois Supreme Court needed to step in to avert chaos once a Kankakee County judge invalidated portions of a state law designed to end most forms of cash bail in Illinois.
Trouble was, Judge Thomas Cunnington’s ruling affected 65 of 102 Illinois counties, the ones that sued to block implementation of the cash bail portion of the SAFE-T Act. In the other counties, those that didn’t sue, the full SAFE-T Act would have gone into effect — creating a nearly bail-free system in a patchwork of counties across the state.
Consider Aurora. Four counties converge within its city limits. Two would have eliminated bail in most cases; two would have kept it. In Naperville, the Will County portion would have retained cash bail but not the DuPage County portion.
The state Supreme Court averted this mess by putting a hold on implementation of parts of the Safety, Accountability, Fairness and Equity-Today Act governing cash bail. A final ruling on the law’s pretrial fairness provisions is expected within weeks.
Gov. J.B. Pritzker on Wednesday kept a brave face during impromptu remarks to reporters. He stands by the new law and vowed to continue pushing for bail reform — “come back at it” were his words — even if the Supreme Court invalidates the SAFE-T Act’s elimination of cash bail for defendants awaiting trial for many alleged criminal offenses. Pritzker sees this as a matter of equity, an effort to eliminate a system in which wealthy people buy their way out of jail and the poor languish behind bars while awaiting trial, sometimes for many months.
Pritzker surely means what he says about fighting back even if the state Supreme Court reinstates cash bail. But in practice, the Supreme Court’s rulings stick, even on issues of major public consequence.
In 2015, the court overturned a pension reform law, rejecting the state’s argument it could invoke “emergency powers” delineated in the constitution to reduce retiree cost-of-living increases. Instead, the court sided with a constitutional guarantee that pensions would never be “diminished or impaired.”
Pension reform proponents called for a redoubled effort, up to and including a constitutional amendment. None came to pass.
In 2016, the state’s highest court rejected an effort to end gerrymandering in Illinois by creating an independent commission to draw the state’s electoral maps. A petition to put a citizen initiative on the 2016 ballot had been backed by more than 500,000 voters, but the court in a technical, partisan ruling kept the question off the ballot.
Fair maps advocates vowed to fight back. But their efforts to regroup came to naught, and Illinois now suffers from some of the worst gerrymandered electoral districts in the country.
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This time could be different. With bail reform a key objective of political leaders in what has become a deep-blue state, Pritzker and others may find a path forward even if an Illinois Supreme Court ruling blocks this first approach.
And Attorney General Kwame Raoul is working to make that unnecessary, preparing arguments he will use in the effort to vacate the ruling by Judge Cunnington of the Kankakee County Circuit Court. Cunnington found the legislature overstepped its authority by taking away judges’ discretion on whether to impose bail. Cunnington also ruled questions about bail need to go to voters in the form of a state constitutional amendment.
DuPage County State’s Attorney Bob Berlin is not a fan of the SAFE-T Act’s bail reforms. During the legislature’s fall veto session, he worked successfully to tighten vague language and protect public safety. But bottom line, he still believes judges should have sole discretion on bail decisions without the state legislature telling them how to rule.
Berlin points out, too, that the long road to bail reform is creating costs and uncertainties for prosecutors and taxpayers across the state. DuPage County spent around $20 million on a courtroom designed to handle cashless bail, Berlin reminded me, and hired more than a dozen lawyers — prosecutors and public defenders — in part to deal with bail provisions of the SAFE-T Act.
Illinois is hardly alone in its fits and starts. New Jersey in 2017 implemented a far-reaching reform that effectively ended cash bail. But the rising national crime wave has hit Jersey, too, and a retrenchment of reforms is in the works. New York City Mayor Eric Adams is pushing to revoke state reform that effectively forbids judges from taking into account a defendant’s potential threat to the community when considering bail.
Part of the trouble in this debate — what may become a perpetual debate, apparently — is the complex and evolving nature of the evidence on both sides. Volumes of research demonstrate the validity of arguments that cash bail systems create gross inequities for poor people, disproportionately people of color. For lack of the ability to post bail, people sometimes are held for longer than a year awaiting trial, when even a single night in jail can mean a lost job for people living on the margins of the economy.
Yet, at the same time, violent crime is on the rise, in Illinois and nationally. This scares people and prompts an understandable demand for tougher crime laws — while providing fodder for alarmists.
Raoul may ultimately persuade the Illinois Supreme Court to clear the way for full implementation of the SAFE-T Act. And if he doesn’t, Pritzker may well find another way to implement the reforms he seeks on cash bail.
No matter which way the state Supreme Court rules, the debate over public safety and the best path toward equitable criminal justice will continue — with confusion and uncertainty and perhaps without end.
David Greising is president and CEO of the Better Government Association.
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