Illinois Attorney General Kwame Raoul appeals decision derailing bail reform in 64 counties

The most controversial provision of the SAFE-T Act promises to end the cash bail system starting this Sunday — but not in 64 counties where authorities have sued to halt the reform.

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Illinois Attorney General Kwame Raoul speaks at a Gold Coast news conference in May.

Illinois Attorney General Kwame Raoul on Friday appealed a ruling that a law ending cash bail was unconstitutional.

Pat Nabong/Sun-Times

Illinois Attorney General Kwame Raoul on Friday appealed to the state’s highest court to overturn a Kankakee County judge’s ruling earlier this week that partially derailed a new law abolishing cash bail.

The most controversial provision of the SAFE-T Act — the sweeping criminal justice reform bill signed almost two years ago by Gov. J.B. Pritzker — takes effect Sunday, promising to end the long-held system in which judges set dollar amounts that criminal defendants must pay to be released from jail ahead of trial.

That will be the case heading into 2023 in Cook, DuPage, Kane, Lake and 34 other counties — but not in the remaining 64 counties, where prosecutors and sheriffs filed lawsuits to halt the bail reform.

Kankakee County Chief Judge Thomas W. Cunnington sided with those opponents Wednesday, agreeing with their argument that the new law violates the state Constitutions’s separation of powers — that “the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat.”

Raoul immediately said he’d ask the Illinois Supreme Court to reverse that decision, and his office filed the official paperwork Friday.

But Raoul isn’t the only person asking the Supreme Court to act.

Two state’s attorneys in counties where cash bail would be eliminated — Robert Berlin, a Republican, in DuPage and Jamie Mosser, a Democrat, in Kane — asked the court to provide uniformity while it ponders Raoul’s request to overturn the Kankakee County ruling.

Whether it comes down on the side of allowing cash bail or, for now, or banning it statewide, the court must “exercise its supervisory authority to enter an order sufficient to maintain consistent pretrial procedures” they wrote. Otherwise, “defendants in different jurisdictions will be subject to different treatment upon arrest and throughout pretrial proceedings, creating an equal protection problem for citizens across the State.”

Raoul, a Chicago Democrat, still maintains the new bail provision will be effective in all 102 Illinois counties Sunday. But his office has acknowledged that — at least until the suit concludes — judges in the counties that are party to the suit will decide whether they set cash bail. That includes Kankakee, Kendall, McHenry and Will counties near Chicago.

“Illinois residents in all counties should be aware that the circuit court’s decision has no effect on their ability to exercise their rights that are protected by the SAFE-T Act and the Illinois Constitution,” Raoul said in a statement Wednesday.

Raoul’s office said they would request an expedited schedule early next week with the state Supreme Court. A court representative did not have details on when justices might take action.

Later Friday, Raoul issued a statement suggesting a flurry of new legal challenges, and perhaps temporary restraining orders, had popped up around the state.

Raoul slammed the last-minute objections to a law Pritzker signed nearly two years ago, noting that “my office received less than one hour’s notice of hearings in some counties and no notice at all in others. ... To say that this is an abuse of the judicial process is an understatement.”

Democrats hold a 5-2 majority on the Illinois Supreme Court after gaining a seat during the Nov. 8 elections.

Throughout the campaign, Republicans pounced on the SAFE-T Act and bail abolition, aiming to paint Democratic opponents as soft on crime.

Under the new law, a judge’s decision on whether to lock up a defendant before trial must hinge solely on whether the judge thinks the person is a public threat or a flight risk.

Supporters say it helps make the justice system more equitable; opponents claim it will leave more dangerous people on the street.

Barring action from the state Supreme Court, the no-cash-bail era is expected to begin Sunday at the state’s busiest criminal courthouse, at 26th Street and California Avenue.

“We look forward to the Illinois Supreme Court’s review and clarification regarding the constitutionality of these laws,” Cook County leaders said in a joint statement Thursday. “Until then, we stand firm in our commitment to the smooth and successful implementation of the SAFE-T Act in its entirety.”

Contributing: Jon Seidel

Here’s Illinois Attorney General Kwame Raoul’s notice of appeal to the Illinois Supreme Court:

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