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The bail provision in the Illinois SAFE-T Act has been declared unconstitutional

The bail provision in the Illinois SAFE-T Act has been declared unconstitutional

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A Kankakee County judge has found that a key provision of Illinois’ comprehensive criminal justice law violates the state constitution, potentially overturning a controversial measure that would have eliminated cash bail starting in the New Year, according to a copy of the judge’s ruling.

The judge’s decision affects only the pretrial release provisions of the law, leaving intact all other measures of what is known as the SAFE-T Act. Judge Thomas Cunnington is expected to formally hand down his decision Thursday morning.

Cunnington’s decision stems from a lawsuit filed by several dozen state attorneys in Illinois. Cunnington agreed with prosecutors’ argument that the state legislature violated the separation of powers component of the Illinois Constitution when it passed a measure eliminating cash bail and therefore interfered with the duties of the judiciary.

He noted in his 36-page opinion that the Illinois Supreme Court has specifically held that judges have “independent, inherent authority to deny or revoke bail to ‘preserve the due process of criminal proceedings.’

Cunnington also wrote that the SAFE-T Act “creates new classes of non-bailable offenses not included in the Constitution; completely removes cash bail as an option that a judge can use to ensure the defendant’s appearance in court; and contravenes the constitutional standard governing when an accused may be held without bail.

“In eliminating bail, the discretion afforded by the Constitution to courts to protect victims and their families through this method is gone,” Cunnington wrote. “The constitutional requirement for bail is intended to help ensure the safety of victims, the defendant’s compliance with conditions of release, and the defendant’s appearance in court.”

The state will appeal the decision to the state Supreme Court, according to a statement late Wednesday from Illinois Attorney General Kwame Raul. But it’s unclear when the Supreme Court will take up the case or whether pretrial motions will be put on hold until the Supreme Court issues its decision. The state Supreme Court is overseeing the implementation of the cash-free bail policy and other preliminary provisions that were set to take effect Sunday.

The ruling represents a victory for opponents of the 764-page SAFE-T Act, who have long argued that the no-cash bail policy would drastically limit a judge’s ability to detain dangerous criminals before their trial. Supporters of the law argue that ending cash bail is a way to ensure a fairer justice system.

Pritzker’s office late Wednesday called the decision “a setback for the principles we fought to protect through the passage of the SAFE-T Act.”

“The General Assembly and advocates have worked to replace an outdated criminal justice system with one rooted in fairness and justice,” he said in a statement. “We cannot and should not defend a system that fails to protect people by allowing those who are a threat to their community the ability to simply buy their way out of jail.”

House Republican Leader Jim Durkin, who will step down next month, issued a statement welcoming Cunnington’s decision. “Legislation of this magnitude should be evaluated not only on substance but also on process,” said Durkin of Western Springs. “In this regard, Illinois Democrats have failed Illinois.”

The lawsuit also claims that the SAFE-T Act violates the constitution’s so-called “one-subject rule,” which is meant to ensure that bills focus on a single subject. On this issue, Cunnington sided with the state, finding that the plaintiffs had not met their burden of showing that the provisions of the SAFE-T Act “lack a `natural or logical connection’ to the criminal justice system.”

Opponents of the no-cash bail policy have raised concerns that the provision would free violent criminals, although judges retain the ability to keep defendants behind bars if the state can prove they are a flight risk or a danger to society.

Earlier this month, Pritzker signed several changes to preliminary regulations ahead of the Jan. 1 effective date.

The changes clarify the standards judges must follow when determining whether a defendant is a danger to the public, and add several crimes for which judges can hold someone if they consider them a threat to the community or another person, including aggravated robbery, second-degree murder and home invasion.

Prosecutors had expressed concern that it would be nearly impossible to argue that a defendant is a flight risk because the SAFE-T Act originally did not allow them to use a defendant’s prior history of failure to appear in court. Under the changes, patterns of failure to appear in court – but not a single failure to appear – can be used as an argument for detention.

Defendants charged with crimes before Jan. 1 will also have the option of remaining under the old bail system or being moved to the new system. To ease the burden on the court system, the changes set specific timeframes for detention hearings for those transitioning to the new system.

The changes also make it clear that police can arrest people for offenses such as trespassing that would normally only require a ticket, stating that arrests can be made if officers believe “the accused poses a threat to the community or any person” or if “criminal activity continues .” An arrest can also be made if the alleged offender has “obvious medical or mental health problems” that pose a risk to his own safety, according to the changes.

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