Yesterday, a Kankakee County judge sided with the 58 State’s Attorneys and sheriffs suing Illinois over the SAFE-T Act. While the Kankakee court’s ruling on the state’s attorneys’ constitutionality lawsuit could pause implementation in some counties, we believe this decision will be reversed.

Judge Thomas W. Cunnington ruled that the Pretrial Fairness Act was unconstitutional. He believes the law is unconstitutional because:

• The Pretrial Fairness Act eliminates the use of money bail, and the Illinois constitution says “All persons shall be bailable by sufficient sureties”,
• The Pretrial Fairness Act violates the separation of powers doctrine 

Both of these arguments rest on incorrect readings of basic bail and constitutional laws.

Both the Illinois and federal courts have made clear that the word “bailable” does not refer to money but instead to the concept of pretrial release. “Bailable” does not mean “allowed to post money bail,” it means “allowed to be released from custody.” Paying money to secure release is just a common condition of bail. The Pretrial Fairness Act doesn’t eliminate the right to be bailable, it just ensures money isn’t required for release. In doing so, it eliminates an actual constitutional violation: detention based on poverty.

The state’s attorneys’ second argument, that the Pretrial Fairness Act offends separation of powers principles, is likewise based on an incorrect reading of constitutional law. While courts decide the outcome in individual cases, the legislature and the judiciary share authority when it comes to the procedures that courts follow in making rulings and the limits that are placed on judicial power. Just like the legislature can constitutionally put maximum and minimum limits on prison sentences, and make rules about how those sentences can be imposed, they can put limits on when people can be sent to jail pretrial and how courts must make those decisions. 

We anticipate that the poorly reasoned decision that found the Pretrial Fairness Act unconstitutional will be swiftly corrected by the Illinois Supreme Court.