With Illinois Cash Bail Case, Courts May Wall Themselves Off from Reform

The Illinois supreme court is set to decide whether state lawmakers’ decision to end cash bail violated separation of powers, in a case with wide ramifications for who gets to regulate courts.

Bryce Covert   |    February 14, 2023

The Illinois supreme courthouse in Springfield, IL. (iStock Photo/ Sanya Kushak)

Editor’s note: The Illinois supreme court issued a ruling on July 18, 2023, that upheld the SAFE-T Act and reversed the lower court.

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.”