Illinois was supposed to make history at the start of this year: with the full implementation of the Safety, Accountability, Fairness and Equity-Today Act, or SAFE-T Act, passed by the legislature in 2021, it would have been the first state to completely get rid of the use of cash bail. 

Instead, the part of the law eliminating cash bail, known as the Pretrial Fairness Act, is on hold after a Kankakee County judge ruled in favor of 58 state’s attorneys and sheriffs who sued Illinois to stop it from going into effect, and on December 31 the state’s supreme court stayed its effective date until it can weigh in. In striking the provision down, the circuit court judge, Judge Thomas W. Cunnington, deployed a novel argument: that the legislature’s effort to reform bail practices violated the separation of powers between the legislature and the courts enshrined in Illinois’s state constitution.

“Legislative enactments undermining the ‘traditional and inherent’ powers of the judicial branch, particularly, those restricting judicial discretion, violate the Separation of Powers Clause,” he wrote. The court has “independent, inherent authority to deny or revoke bail.”

Sarah Staudt, director of policy at Chicago Appleseed, an organization that advocates for court reform in Illinois, said Cunnington’s argument would set a dangerous precedent if the state supreme court allows it to stand. It would indicate, she warns, that courts “have authority, despite the legislature, to do whatever they want,” essentially walling them and their procedures off from the reach of the people democratically elected by voters. 

“It’s a pretty anti-democratic idea,” she added. 

The Illinois supreme court agreed to hear an appeal and will hold oral arguments no earlier than March, though no date has been set. Briefs were filed from both sides in late January.

In a brief he filed in defense of the law,  Illinois Attorney General Kwame Raoul agrees that Cunnington’s ruling misreads the separation of powers. Raoul, a Democrat who just won re-election in November against a Republican challenger who ran on repealing the Pretrial Fairness Act, quotes past decisions to write that “’[t]he legislature may enact laws involving judicial practice’ without violating separation-of-powers principles as long as those laws ‘do not infringe unduly upon the judiciary’s inherent powers.’” He adds that the act’s provisions “merely regulate the courts’ exercise of an inherent judicial authority, namely the authority to detain defendants pending trial, and do not unduly infringe upon it.”

In making his argument, Cunnington referenced one case in New York City after cash bail was eliminated there for many lower-level offenses. Cunnington says this is the only trial court to rule on whether eliminating cash bail conflicts with a separation of powers and which found that the reform “wrest[s] from courts… final discretion” in setting conditions of pretrial detainment. But it’s “a big departure,” said Kate Schwartz, a partner at Hughes Socol Piers Resnick & Dym, Ltd., a law firm that is part of an amicus brief to the supreme court in favor of the Pretrial Fairness Act, to go from that New York ruling to arguing that “the legislature can’t impose any rules or requirements [on] the overall system.” That, she said, is a brand new cudgel against bail reform and efforts to revamp the court system.

If the state supreme court sides with Cunnington’s interpretation, critics say, it may have broad ramifications in Illinois and elsewhere. “It would suggest that courts are able to have a really broad range of discretion,” said Staudt. It wouldn’t just give them absolute authority over individual cases, but also over the parameters within which they are supposed to make those individual decisions. 

“That is something that is a legislative function, not a judicial function,” Staudt said, warning that, taking Cunnington’s decision to its logical conclusion, the legislature may no longer be able to weigh in on a range of issues that are usually seen as matters for policymakers and lawmakers to decide. 

Pilar Weiss, director of Community Justice Exchange, a national organization that works to end cash bail, agrees that the doctrine would leave judges with little oversight. “The whole thing about separation of powers is the judges can’t make their own rules,” she said. “You have to have another body…to help make and enforce the rules.”

She also shared a concern that, if the supreme court upheld Cunnington’s ruling, the effects may ricochet in other states where lawmakers are open to changing bail practices. 

“There might be a state in which a state legislature was considering pretrial reform and now feel that they can’t,” she said. 

Critics of Cunnington’s decision point to a myriad of ways that Illinois lawmakers already get to shape the court systems. “The legislature and the judiciary have always shared power when it comes to making decisions about criminal cases,” Staudt said. 

For instance, Illinois has a statute on the books allowing parties in a case to call for the substitution of a judge with a new one, one time per case, without needing to provide evidence of the need for a new judge. “If the legislature can tell a judge the party has the right to get rid of you altogether,” said Matt Piers, president of Hughes Socol Piers, the legislature has “a pretty powerful authority to tell judges what they can and can’t do.” 

Lawmakers in Illinois and elsewhere also impose mandatory sentences on their court systems or, on the other hand, sentencing limitations. “Legislatures all over the country, including the one we’re talking about the Illinois legislature, pass laws that limit what judges can do in criminal cases and other cases,” Piers said. It’s “paradigmatic.” 

Cunnington’s argument relies in large part on the idea that courts have the authority to keep the public safe and ensure that those charged with crimes return to court after their arrests. But the SAFE-T Act still allows judges to set plenty of other conditions on someone’s release: travel restrictions, drug testing, electronic monitoring, home confinement, restraining orders. Research has found that cash bail, on the other hand, does not increase people’s return to court for later hearings or enhance public safety. “The judges have a tremendous authority left to them,” Piers said. “The one thing they can’t do is use a condition that has proven to be an abysmal failure.”

Cunnington’s case also relies on the idea that the Illinois constitution enshrines bail as part of the criminal legal system, and that lawmakers cannot restrict that. But Piers points out that, while the Illinois state constitution states, “All persons shall be bailable by sufficient sureties,” that doesn’t mean money has to be involved. Bailable means “with appropriate conditions everybody has a right to be released pretrial because you are presumed innocent,” he said. “Bond is just a written promise to do something.” 

State Republicans, who have fought the SAFE-T Act, applauded Cunnington’s ruling and seemed to side with the judge’s reasoning. Senate Minority Leader Dan McConchie called the law “sloppy, rushed, [and] poorly drafted,” and a threat to public safety. “And on top of this, the central component has now been ruled unconstitutional.”

Staudt stressed that there was an effort to oust lawmakers who decided to get rid of cash bail, but Democrats retained a comfortable majority in the legislature in November. In fact, they expanded their majority in the state House. 

Democrats also have a 5-2 majority on the state supreme court because they swept the two supreme court elections held in the state in November. 

For Staudt, the court’s upcoming decision on Cunnington’s separation of powers doctrine will test who gets to decide the basic parameters of the court system in Illinois.

“I certainly worry about the outcome of this,” Staudt said. “We have to allow democratically elected legislators…to respond to their constituents and pass laws that reform our really broken criminal legal system.”

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Attorney Daniel Epstein left his job as a law firm associate in Chicago to run for office, he says, because he saw that the criminal legal system is designed to convict and punish rather than to “find truth and restore,” and he wanted to enact policies to reverse that. So Epstein put together a platform with the policy changes that he had in mind, like one might expect from a reform candidate for state legislature, or governor, or even district attorney, now that a growing number of prosecutors are using the broad discretion of their office to overhaul the criminal legal system. 

But Epstein isn’t running for any of those positions. He is running for a seat on the Illinois Supreme Court. He is running, that is, to change policy as a judge. The court’s “justices are not simply our state’s loftiest case deciders,” he wrote on a questionnaire, “they are policy makers.”

Epstein’s campaign challenges the way we approach judicial elections. Institutions like the Illinois Supreme Court shape policies around some of the system’s most critical and controversial aspects, and are sometimes the most direct route for reform, yet candidates rarely lay out policies to inform voters of their views. Epstein thinks they should.

“This is not just a political campaign, it’s an educational campaign,” he told the Appeal: Political Report. “We’ve been going around teaching people about . . . the power of the court to make policy for our justice system.” Epstein is running on reform that would establish rules to eliminate unaffordable cash bail and to provide people charged with crimes more access to the prosecution’s evidence before trial, among other proposals.

These matters all fall under the Illinois Supreme Court’s purview to set the rules that govern criminal procedure, evidence, and ethics—broad areas that touch nearly every aspect of prosecutions from setting bail to jury selection and some aspects of sentencing. And in shaping how the justice system works, the court can take up and vote on such rules directly, rather than through the individual cases it decides.

The court has jealously guarded its control over rulemaking. It used a broad interpretation of “judicial power” in 1982 to hold that the legislature cannot require judges to explain the reasons for their sentencing decisions. Before that, it asserted exclusive control over how juries are selected, when in 1977 it struck down a law that gave lawyers, and not just the trial judge, the right to interview prospective jurors. Outside of amending the state Constitution, then, the court has staked its claim as the sole avenue of reform on these issues.

Still, Epstein is the only one among seven candidates running in this election to focus on the court’s influence in these areas.

“We talk a lot about criminal justice reform,” he told the Appeal: Political Report, “and what people don’t realize is that in some cases we need the Illinois Supreme Court to use its policy making powers to make criminal justice reform real.” 

Epstein, who has worked as an attorney since graduating from law school five years ago, is running against six judges in the Cook County Democratic primary to replace Justice Charles E. Freeman, who retired last year. That includes Justice P. Scott Neville Jr., whom the court appointed to finish Freeman’s term, and is now the de facto incumbent. Illinois elects its supreme court justices by region, with voters in Cook County (the populous jurisdiction that contains Chicago and its suburbs) choosing three of the court’s seven justices. With no Republican candidate, the March 17 primary will likely determine Freeman’s permanent replacement. 

Judicial candidates, whether elected or appointed, generally bristle at the suggestion that they make policy. Often they act as though they have no policy or political views at all, casting themselves as impartial arbiters of legal disputes — mere “umpires” who call “balls and strikes” as U.S. Supreme Court Chief Justice John Roberts put it — and refusing to say how policy questions should be resolved. They often limit their campaigns to upholding lofty if vague ideals like independence and fairness and the rule of law. 

Elections for prosecutors have typically been waged on similar grounds, with depoliticized rhetoric and a focus on experience and credentials, but the vast policy discretion they exercise has increasingly reshaped those races. The same may be true for sheriffs.

The reticence of judicial candidates, though, is partly explained by codes of judicial conduct, which generally (including in Illinois) prohibit judges and candidates from making commitments about how they will decide future cases—“no hints, no forecasts, no previews,” as Justice Ruth Bader Ginsburg said at her 1993 Senate confirmation hearing, a phrase that subsequent U.S. Supreme Court nominees adopted. 

One of Epstein’s opponents, Appellate Court Judge Margaret McBride, cites judicial ethics as one reason she has declined to make policy commitments. “It’s totally inappropriate and probably a violation of the code of conduct to have a policy platform,” McBride told the Political Report. “Our constituency is the rule of law, we don’t represent groups or individuals. We must represent the rule of law, so to speak.” 

A spokesperson for another candidate, Appellate Court Judge Cynthia Cobbs, offered similar pushback. “Generally speaking, judges here do not set out a policy platform,” Diana Embil said. “That traditionally has not been what judges running here will do.” The other four candidates did not respond to inquiries about their policies, and their campaign websites do not provide policy platforms.  

But Epstein isn’t talking about future cases or legal questions the court might resolve. He is talking about rules the court has the power—and in some cases the exclusive power—to enact. 

Some of his proposals include creating “open file” discovery that allows people charged with crimes to see all the evidence that prosecutors have, some of which may help the defense, and requiring courts to consider someone’s ability to pay before setting money bail. He also wants to create a higher standard for the use of scientific expert testimony, so that people are not convicted based on faulty and debunked forensic evidence—a case he makes in a short video about how the Salem Witch Trials ended after a new rule barred “spectral evidence.” 

Reform through judicial rulemaking is not unusual. In 2018, the Washington Supreme Court adopted a new rule to address the “implicit, institutional, and unconscious” racial discrimination in jury selection. Under the rule, reasons for excluding jurors are presumed to be invalid if they are historically tied to racial bias and stereotypes—for example, that the prospective juror lives in a high-crime neighborhood, or believes that police officers racially profile. State Supreme Courts in Indiana, Maryland, New Mexico, and Arizona all recently enacted rules that limit the use of money bail. And through the Judicial Conference, the U.S. Supreme Court and lower federal court judges write the federal rules of evidence, and civil and criminal procedure. 

In Illinois, the judicial rulemaking process generally begins with submissions, including from the public, to the Supreme Court’s Rules Committee, which takes public comment and evaluates proposed rules. It then makes a recommendation to the full court on whether it should adopt a proposed rule or consider an alternative. 

This rulemaking power of courts isn’t new, and it’s frequently used. It just hasn’t been part of how we talk about picking judges. 

In Illinois, advocates have already been targeting the Supreme Court as a pathway to reform. Consider restorative justice, which provides an alternative to prison and relies on open dialogue between those accused of crimes, the people they have harmed, and members of the community. In 2017, a coalition of advocacy groups proposed a Supreme Court rule to make discussions during that process privileged and confidential. They argued that restorative justice requires candid, honest conversations that are unlikely to happen if prosecutors can later use statements in court. The court did not adopt the rule then. It is now part of Epstein’s platform. 

Also in 2017, a broad coalition of community groups and advocates, including the Cook County state’s attorney, public defender, and sheriff, endorsed a proposed supreme court rule that would require judges to set money bail only at amounts that people can afford to pay. Again, the court did not adopt the rule, which Epstein supports, but created a “Commission on Pretrial Practices” to conduct a “comprehensive review of the Illinois pretrial detention system.” The Commission’s final report, due in December 2019, has not yet been published.

Sharlyn Grace, the executive director of the Chicago Community Bond Fund, told the Political Report that she welcomes Epstein’s rules-focused campaign. “I think the education about what the Supreme Court does and what it could do has been very, very beneficial in this race,” she said.

“If the court was willing to provide more political leadership on [bail reform] and many other similar issues, it would have a profound difference in the lives of people who are going through the court system,” Grace added. 

Cobbs and McBride, two of the appellate judges running against Epstein, also object to judicial candidate policy platforms because of how the rulemaking process typically works, with proposed rules working their way through the court’s Rules Committee before they are considered and voted on by the justices. Embil, Cobb’s spokesperson, described this as a “bottom up” process that allows for input from a wide variety of stakeholders, as opposed to justices dictating rules changes on their own. The court “relies on commissions and committees, and input from citizens and community groups and experts . . . to make changes within the system,” Embil said. “It’s not a top down process for a judge to determine what the rule will be.”

Epstein dismissed these concerns as “passing the buck.” Some of the changes that he sees as urgent were proposed by citizens and community groups, but they did not succeed. Epstein says he wants to revive them and make them work. And the supreme court is free to change a rule without any input from its Rules Committee, he said. “The fact that it’s typically been a bottom up process doesn’t justify the passivity in changing rules that need changing. We need leadership on rules reform.”

Even if voters embrace Epstein’s call for rules reform, though, there are other issues at stake. If Epstein wins, the court would be all white for the first time since Freeman, the retiring justice, who is Black, was elected in 1990. 

But already Epstein has started a new conversation in Illinois about the role of judges, a conversation that he thinks could spark a national reform movement, not unlike the recent wave of progressive prosecutors. 

“If we win this thing, it’s going to change how judicial races are run across the country,” he said. “I think it’s going to change how judges behave across the country, and [they will] start really taking a look at what their responsibilities are in terms of how to ensure our rules are such that fair people can find the truth.”

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