Judge gives no hints on SAFE-T Act, says he faces ‘monumental task’ to rule on sweeping law by Dec. 28

KANKAKEE — A Kankakee County judge offered no hints Tuesday on how he might rule on a legal challenge to Illinois’ controversial criminal justice reform law known as the SAFE-T Act, which is set to abolish cash bail across the state in less than two weeks.

Kankakee County Chief Judge Thomas W. Cunnington simply said, after hearing arguments over the law, that he hopes to hand down an opinion by Dec. 28 — an effort he called a “monumental task.” Cash bail is set to end in Illinois four days later, on Jan. 1.

Kankakee County State’s Attorney James Rowe urged Cunnington to send the law back to the Illinois General Assembly, where he said lawmakers would then be forced to pass its provisions “the right way, the safe way.”

Darren Kinkead of the Illinois Attorney General’s office argued that Rowe and a collection of prosecutors and sheriffs, who are suing to stop the law, have “very strong feelings.” But he said they boiled down to a policy disagreement, not a legitimate legal dispute.

Rowe countered that, if it were that simple, “we would do nothing in this courthouse but sue Springfield over bad ideas.” Rather, he said the SAFE-T Act is “wholly unconstitutional.”

The arguments Tuesday were held in an effort to resolve roughly 60 lawsuits, now combined, brought by prosecutors and sheriffs around the state. It is the first of what will likely be many legal challenges to the SAFE-T Act.

Throughout his argument, Rowe repeatedly waved the nearly 800-page law in the air and dropped it on a table in the courtroom. He did the same with a recent 300-page amendment passed by the Legislature. Will County State’s Attorney James Glasgow joined Rowe at the counsel table in the well of the courtroom but did not argue before the judge.

Cunnington kept a straight face as he listened to the arguments of Rowe and Kinkead at the Kankakee County courthouse. He asked just a few questions to clarify technical points. When all was said and done, he complimented the attorneys and commented on the work ahead of him.

“It is a monumental task to come up with a decision that has so many moving parts,” Cunnington said. He added that “some are more complicated than others” and “require more thought and more research.”

Starting Jan. 1, judges are expected to decide whether defendants charged after the start of the year will be locked up while awaiting trial based on their alleged crime and whether they pose a threat or are likely to flee.

Supporters say the law is intended to address long-standing public safety issues, police distrust and a system that lets wealthy defendants buy their way out of jail. It was harshly criticized throughout the 2022 election campaign. But Kinkead reacted Tuesday to a claim that the law was unpopular by noting that “recent election results” suggested otherwise.

Rowe shot back that “they won this election because they lied about what was in [the law]. They told lies for months and months and months.”

Tuesday’s arguments otherwise revolved around whether the law met constitutional muster. Touching on a passage in the state Constitution that says “all persons shall be bailable by sufficient sureties,” Rowe insisted that Illinois judges should be allowed to set bail involving money.

“The law that the defendants have passed have taken all of those powers away from you,” Rowe told Cunnington. He repeatedly told the judge that the Legislature “put its hand on your gavel.”

As expected, Kinkead argued that the “sufficient sureties” passage bestows a right on criminal defendants, not sheriffs and prosecutors, meaning Rowe and the other plaintiffs couldn’t successfully sue to vindicate it.

Rowe additionally argued that the law was unconstitutionally vague and that it violated the constitutional rights of crime victims. He said it improperly addresses multiple subjects and violates the separation of powers. And he said the lawmakers who passed it violated a rule requiring them to read bills “on three different days” in each legislative chamber.

Kinkead countered that lawmakers must “go very far” before they actually violate the so-called single-subject rule. And he said the separation-of-powers doctrine does not mean “that powers cannot overlap.”