Why the Delay in the Pre-Trial Fairness Act?
On December 28, 2022, Kankakee Judge Thomas Cunnington declared the Pre-Trial Fairness Act (PFA) to be unconstitutional. In addition to Kankakee County, 63 other counties were involved in the consolidated litigation. Those 64 counties took the position that, come January 1, they would continue using the state's current cash bail system. The Attorney General's Office took the position that the finding was not applicable to any county. Subsequent to the ruling, a few counties took the step to file for temporary restraining orders to apply the Kankakee ruling to their jurisdiction. This resulted in approximately 70 counties that would not be using the cash bail system as of January 1, while 32 would implement the PFA. Kane, DuPage, Lake and Cook are among those counties that would be eliminating the use of cash bail.
Come January 1, Illinois would have seen chaos if the law was applied differently throughout the counties. As an example, the city of Aurora is in four counties – Kane, DuPage, Will and Kendall. In one city alone, a person could be arrested for a crime in Kane and be held without bail while another person committing the same crime in Will County would be given the opportunity for bail. The state's laws are created to treat people fairly and equitably. That would not have been possible but for the intervention of the Illinois Supreme Court.
On December 30, the Kane County State's Attorney's Office joined forces with the DuPage County State's Attorney's Office to seek guidance from the State Supreme Court on what each county should be doing in the New Year. The action was filed with the hope the Supreme Court would either keep the current system in place or advance the PFA for all counties until they are able to rule on whether the law is constitutional. Late on December 31, right before we all celebrated the end of 2022, the state's highest court issued a ruling staying the implementation of the PFA until the court could determine its constitutionality.
I am incredibly grateful for this ruling. The thought that justice would be served differently throughout the State of Illinois is not something that any person would want, let alone the chief prosecutors in each county. While the issue of constitutionality is being decided, it is always better to keep the status quo than to apply a new law while there is a question as to its validity.
As the State's Attorney, I have vowed to bring about true criminal justice reform that is guided by public safety. I am absolutely in favor of the elimination of cash bail as it no longer serves the purpose it was intended for. Defendants who are not a danger nor a willful flight should not remain in jail because they cannot afford bail. Additionally, dangerous individuals should not be able to pay their way out of jail simply because they can.
With that being said, I share concerns about the constitutionality of this law. Judge Cunnington declared the law invalid for three reasons.
First, the legislature violated the separation of powers by creating a law that limits what a judge can do. Specifically, judges cannot detain individuals that they deem to be dangerous or a flight risk if they are not charged with certain enumerated offenses.
Second, the law violates the victim's bill of rights by not allowing a judge to take into consideration the safety of the victim or the victim's family in cases that are not allowed to be detained.
Lastly, the law violates the constitution in that it allows people who are charged with probationable offenses to be detained without bail. Article I, Section 9 of our constitution requires that “all persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person." The court ruled that eliminating cash bail, without amending the constitution first, is a violation of the constitution.
The Supreme Court has already set a briefing schedule and will hear arguments in mid-March. They have promised to make this an expedited proceeding so that we can have an answer soon. While I am in favor of implementing criminal justice reform that eliminates the antiquated use of cash bail, I continue to be concerned with the PFA as drafted. Certain dangerous offenders, like those charged with unlawful restraint, cannot be held based on how this law is drafted. If the Supreme Court invalidates this law, I truly hope that the legislators will work with law enforcement and prosecutors to draft a law that ends cash bail while focusing on the protection of our community.
As your Kane County State's Attorney, I will continue to advocate for reform but always keeping the safety of our citizens as my top priority.