SAFE-T Act provision to end cash bail likely to remain in limbo for a while

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The Illinois Supreme Court will hear arguments in March on the SAFE-T Act’s controversial provision to end cash bail.

Kankakee County Judge Thomas Cunnington set off a chaotic chain reaction Dec. 29 with his ruling that the General Assembly over-stepped its constitutional grounds when it voted to eliminate cash bail. Cunnington essentially said that a cash bail requirement, even though not specifically mentioned in the Constitution, could be inferred; and that the General Assembly had exercised powers that properly belonged to the judicial branch. 

Cunnington’s ruling only applied to the jurisdictions where 64 lawsuits had been filed to block implementation of the law on Jan. 1, without regard to the fact that some cities are in multiple counties. Aurora, for instance, is in four counties, including Kane and DuPage, which did not sue to stop the law from taking effect. Aurora is also in Kendall and Will, which were plaintiffs. Naperville straddles DuPage and Will counties. 

Some county leaders who were not part of the lawsuit added to the confusion by filing for local temporary restraining orders, often giving minimal or even no warning to the attorney general’s office. Some counties actually filed for TROs without giving any notice at all to the AG’s office, including Alexander, Lawrence, Pike and St. Clair, according to the office.

It seemed to some that a few counties may have been coordinating their efforts to thwart the attorney general’s efforts to dispute their TRO demands. In Menard County, for instance, the AG’s office asked for a one-hour delay while they argued in another county. The request was ignored, and the state’s attorney reportedly entered the TRO without any ability for the state to respond.

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Finally, on Dec. 30, the Democratic state’s attorney for Kane County, Jamie Mosser, and the Republican state’s attorney for DuPage County, Bob Berlin, filed an emergency motion for a supervisory order from the Illinois Supreme Court. Mosser had supported the push to eliminate cash bail and Berlin helped work behind the scenes to get the revisions in place during veto session. The two pointed to the massive jurisdictional issues and the TRO filings and asked the court to “enter an order sufficient to maintain consistent pretrial procedures because without such an order, 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.”

The Supreme Court complied within hours, staying the effective date of the SAFE-T Act’s cash bail provision during an expedited appeal process and effectively stopping the chaos from spreading further. 

When asked by reporters last week, Gov. JB Pritzker said he expected the Illinois Supreme Court to decide what to do about the state’s cashless bail law “sometime in the next few months.”

That could well be, but the court won’t even hear oral arguments in the case until March.

A joint motion filed with the Supreme Court by the state and the county plaintiffs set out an agreed-upon briefing schedule; the Court adopted it. Opening briefs will begin in late January and will run through the end of February. Oral arguments will be held during the court’s March calendar. 

From there, it’ll be up to the Supremes to hash out their decision and draft their opinion(s). So, it could possibly be a while.

Meanwhile, a poll taken Nov. 15-20 by Impact Research found that 32% of voters had a favorable view of the SAFE-T Act, which included the elimination of cash bail, while 40% had an unfavorable view. The super-controversial law was the subject of millions of dollars in campaign advertising, not just statewide, but also in state legislative districts. So it’s not surprising that those who had a strongly unfavorable view outnumbered those with strongly favorable views by 20 points (34-14). Even so, 28% had no position on the law. Criticism of the law didn’t seem to ultimately harm Democrats, except maybe in a couple of legislative races.

The poll of 800 likely 2024 voters (with a margin of error of +/-3.5 percentage points) was taken for a group called Giffords, a gun control organization founded by former member of Congress Gabby Giffords. 

The poll also found that Pritzker’s favorables were 51%, while his unfavorables were 46%; 29% had a very favorable view of Pritzker, while 40% had a very unfavorable view.

And 41% of those polled said they had a positive view of the National Rifle Association, while 53% had an unfavorable view (46% said they had a very unfavorable view).

Rich Miller also publishes Capitol Fax, a daily political newsletter, and CapitolFax.com.

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January 6, 2023 at 05:05PM

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