Why the SAFE-T Act’s no-cash bail provision is clearly unconstitutional

In 1995, I was the assistant public defender, now retired, who unsuccessfully argued before the Illinois Supreme Court that the no-bail provision of the stalking statute was unconstitutional.

As Judge Thomas W. Cunnington wrote in his Dec. 28 memorandum of decision holding the SAFE-T Act unconstitutional — the implementation of which has been placed on hold by the Illinois Supreme Court pending its review of Cunnington’s ruling — the unconstitutionality of the SAFE-T Act flows from two provisions of the Illinois Constitution.

First, the bail provision, Article I, Section 9, specifically includes the option for the trial court to make a cash bond (surety) a condition of pre-trial release. Second, the Constitution has a separation of powers provision, Article II, Section 1.

When you join these provisions together, it is of little consequence that the Legislature passed the SAFE-T Act or that the states attorneys and public defenders in Cook, Lake and Will counties and the private defense bar are willing to follow the SAFE-T Act’s terms. Any trial court in Illinois possesses an inherent, administrative right, due to separation of powers and the surety clause in the Constitution, to set a cash bond. Furthermore, the court can do this on its own without request from any party.

While the case I argued in the Supreme Court is important to Cunnington’s decision, perhaps the more important Supreme Court case, cited by Cunnington, is one where, even though no statutory provision existed in either the Juvenile Court Act or the criminal code, a trial court could, on its own, set a cash bail for two juveniles who faced prosecution for crimes as an adult because of the inherent, administrative right possessed by the trial court to set cash bails.

This right cannot be taken away from the trial judge simply by the enactment of a statute (as this would violate separation of powers), the wishes of the parties or even an absence of a statute that authorizes cash bonds in a given case.

As Cunnington clearly writes, the issue is not what the states attorneys want, the defendants want, the defense bar wants or the Legislature wants. Rather, the simple issue is what the trial court is inherently empowered to do under the Constitution as interpreted by the Supreme Court.

Cunnington does leave the door open for the abolition of a cash bail system in Illinois. This would be achieved by voters amending the Constitution’s bail provision. This would allow the Legislature to re-enact the the SAFE-T Act’s no-cash bail provision.

James N. Perlman, Buena Park

Tenacious reporting

I enjoyed reading your special edition, “The Story Behind the Story,” on Dec. 18. Although I had read the stories at the time they were published, it was interesting to see how the writers and photographers went behind the scenes, did a lot of research and did not give up in gathering information to give your readers full and balanced stories. They surely had tenacity.

Keep up the good work in 2023. Many kudos to the writers, photographers and editors!

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