The Background

SAFE-T FIRST

First, let’s take a moment to appreciate the punny acronym we’re working with here. The Safety, Accountability, Fairness, and Equity-Today Act, or SAFE-T Act, is a state law that reforms several aspects of the criminal justice system, from policing to sentencing. Much of it went into effect in 2021. But one section, the Pretrial Fairness Act — specifically, the provision that would eliminate cash bail — has become a political lightning rod statewide.

If you’ve ever watched a single police procedural show, you are acquainted with the bail system. In essence: Innocent until proven guilty, but also, you know, please actually come to court. Sounds reasonable. Or does it? Folks who can’t afford bail end up sitting in jail. America, baby! Also, the Philippines — the only other country with a commercial-bondsmen-dominated process.

Many states have reformed their cash bail systems, but Illinois would be the first to abolish it. Whether a defendant withers away in jail before trial would no longer hinge on their income stream but on whether a judge thinks they pose a threat or might skip town.

The Controversy

FAIR VS. FIRM

Fans of cash bail argue it keeps dangerous criminals off the street, while critics say it punishes the poor. Yep, it’s civil rights vs. tough-on-crime rhetoric all over again. If there’s anything Americans love these days, it’s a reboot of a bad old show. Smash-cut to the Tough-on-Crime guys taking the SAFE-T Act to court.

In a case combining lawsuits across 64 counties, Kankakee County state’s attorney Jim Rowe contends that ending cash bail violates the Illinois Constitution. Late last year, Thomas Cunningham, a conservative Kankakee County judge, agreed. Attorney General Kwame Raoul appealed Cunningham’s ruling to the Illinois Supreme Court, which heard oral arguments in mid-March. A decision is expected this summer.

The Legal Arguments

WHO’S GOT THE POWER?

Rowe contends that the judiciary’s right to set cash bail is enshrined in the Illinois Constitution; thus it could be abolished only by amendment, which would require a statewide referendum. The AG’s office counters that, sure, judges have the power to ensure that defendants show up in court, but there are other methods: electronic monitoring, home confinement, regular check-ins — so many ways to surveil citizens these days!

A Possible Outcome

DUCKING A DECISION

Since Democrats outnumber Republicans five to two on the state supreme court, the justices probably won’t strike down the act. More likely they will punt. Chief Justice Mary Jane Theis hammered Rowe on whether he even had legal standing to bring a case. His response: “If we’re regulated by the act, then we are a proper party to that litigation.” Theis sounded unconvinced. Annoyed, even! Politically, the court’s safest move is to throw the case out without taking a stand on cash bail. That’s good old American justice for you!