Illinois Supreme Court upholds end to cash bail; change to go into effect Sept. 18

The ruling by 21st Judicial Circuit Chief Judge Thomas Cunnington in late December found that the pretrial release portions of the SAFE-T Act violate the separation of powers clause of the Illinois Constitution, and would not take effect in 64 counties that had sued to block the abolishment of cash bail.

During oral arguments in March, Illinois Deputy Solicitor General Alex Hemmer argued on behalf of the state, saying the bail clause in the Illinois Constitution grants defendants the right to seek pretrial release – while not requiring the state to maintain monetary bail or any other kind of rules governing how pretrial release is carried out.

He said the Illinois General Assembly passed legislation that conflicts with the Constitution – which would require a popular vote on a matter such as abolition of cash bail. "The plaintiffs never faulted the legislature's earlier forays into this area. Presumably, they found those amendments palatable. However, the substance of the amendment is irrelevant. If the legislature could reconsider bail over the course of so many years, it could do so again in 2021 without offending separation of powers principles," Theis wrote.

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