As you may have heard, there's more drama around the Pretrial Fairness Act; Kankakee County Chief Judge Thomas W. Cunnington ruled the Pretrial Fairness Act provision of the SAFE-T Act unconstitutional. Attorney General Kwame Raoul stated that he and Governor Pritzker would appeal the circuit court's decision directly to the Illinois Supreme Court.
On December 28, 2022, Chief Judge Cunnington ruled the Pretrial Fairness Act provision of the SAFE-T Act unconstitutional. The judge argued that the act violates the Illinois constitution, which states that "all persons shall be bailable by sufficient sureties," and the separation of powers doctrine.
However, this interpretation of the act is incorrect. "Bailable" refers to the right to be released from custody, not the requirement to pay money bail. The Pretrial Fairness Act does not eliminate the right to be bailable. Still, it ensures that money is not required for release, thereby eliminating the constitutional violation of detention based on poverty.
The judge's second ruling is that the act offends separation of powers principles because “the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat.” And lawmakers should have instead "submitted the question on the ballot to the electorate at a general election,” which is also based on an incorrect reading of constitutional law.
The legislature and the judiciary have authority over the procedures and limits of judicial power. The legislature can limit pretrial detention and the decision-making process for courts, just as it can set limits on prison sentences and how they are imposed; they can restrict sending people to jail pretrial and how courts must make those decisions.
Attorney General Kwame Raoul said, "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.”
The ruling will only affect a portion of the SAFE-T Act, specifically the bail reform standards, in the counties that sued, including Tazewell, Fulton, and Woodford counties. For the 37 counties not part of the lawsuit, such as Peoria County, the changes should go into effect on Sunday.
Unfortunately, Peoria County State’s Attorney Jodi Hoos has decided to break from the Attorney General and Governor and chosen not to follow the law and implement the SAFE-T Act as scheduled in Peoria county.
Change Peoria agrees with the Attorney General and Governor that the Pretrial Fairness Act is constitutional. We expect the Illinois Supreme Court to overturn the Circuit Judge’s ruling.
The Illinois Supreme Court was instrumental in creating the SAFE-T Act and the Pretrial Fairness Act. First, the Illinois Supreme Court created the Commission on Pretrial Practices in November 2017. The Commission’s charge was to provide guidance and recommendations regarding comprehensive pretrial reform in the Illinois criminal justice system. They then issued a report in April 2020 on which the Pretrial Fairness Act is based.
Next, before the SAFE-T Act was passed in February 2021, the Illinois Supreme Court created the Illinois Supreme Court Pretrial Implementation Task Force to prioritize and implement the recommendations of the Supreme Court Commission on Pretrial Practices and help prepare the justice system for the changes coming once the Pretrial Fairness Act (PFA) takes effect in 2023.
We expect the Supreme Court to continue to support their recommendations encapsulated in the Pretrial Fairness Act and overturn the Circuit Court Judge’s decision.
Any notion that the Pretrial Fairness Act was a surprise passed in the “dead of the night” or that it is unconstitutional is ludicrous. The Pretrial Fairness Act has been in the works since 2017 with the participation of the Illinois Supreme Court and Circuit Court Judges, representatives of the State’s Attorney Offices, Sheriffs, and others involved in law enforcement.
We urge the Peoria County State Attorney’s office to implement the Pretrial Fairness Act as scheduled on January 1, 2023. The egregious unfairness of the current pretrial system must end immediately.