The Illinois “SAFE-T Act” was set to take effect on January 1, 2023. However, following a ruling of Kankakee County Judge Thomas Cunnington on Wednesday finding portions of it unconstitutional, the law is on hold.

The Act was initially passed and signed into law by Illinois Governor J.B. Pritzker in early 2021, though it has since been amended several times — the latest signed on December 6, 2022. What exactly is the “SAFE-T Act”? Here’s how it has been described by the Illinois Policy Institute:

The omnibus bill made sweeping changes to how criminal justice operates in Illinois, aside from it all but eliminating cash bail. The law revises police use of force standards and procedures, reforms complaints and misconduct proceedings for police officers, amends the police officer certification and decertification process, and amends both pretrial and correctional proceedings. Here is a summary of some of the changes to the law beyond cashless bail:

Police reforms

The SAFE-T Act implements several reforms to how policing is done in the state and how police officers are held accountable for misconduct. The law:

• Restricts the ability of police officers to negotiate residency requirements in cities of over 100,000 people
• Gives the Illinois Attorney General additional authority to investigate civil rights violations committed by police officers
• Allows anonymous complaints against officers and eliminates the requirement to sign a sworn affidavit
• Requires the retention of misconduct records and requires increased reporting of crime statistics and use-of-force information by police departments
• Adds several restrictions to what constitutes a police officer’s justified use of force, including banning chokeholds, clarifications on when deadly force is justified and execution of search warrants
• Requires all law enforcement agencies to use officer-worn body cameras by 2025.

Correctional reforms

• Reforms the Felony-Murder Law so the defendant or someone acting with them must have caused a death in order to be charged with murder
• Loosens mandatory minimum sentences and supervised release terms
• Eliminates “prison gerrymandering” by counting inmates as living in their last known place of residence for the purposes of legislative redistricting

In addition to policing and correctional reforms, the Act contains reforms aimed at pretrial detention. As IPI further explains:

The elimination of cash bail and the amendments to the corresponding pretrial detention provisions is where the SAFE-T Act proves most controversial, and with good reason. Pretrial detention replaces bail to prevent the defendant from fleeing prosecution but also serves to protect the public from the threat posed by dangerous defendants.

But the SAFE-T Act sets multiple standards for pretrial detention layered one on the other. These provisions will make it difficult for prosecutors when petitioning to detain defendants that pose a threat to the public.

Since its passage, there has been no shortage of criticism regarding the Act. In October, the Chicago Sun-Times ran an editorial/commentary authored by Daniel M. Locallo, Daniel Kirk, and Alan Spellberg, titled “The SAFE-T Act should be repealed or amended.” In it, the authors lay out the flaws of the Act, including its inception:

The proper way to address the merits of a bill is to hold hearings, allow proponents and opponents to be heard and allow the members of the General Assembly to discuss both the purpose of the proposed law and the precise statutory language to be adopted.

In other words, create a legislative history.

The 764-page SAFE-T Act was introduced in the Illinois Senate at 4 a.m., and it passed at 5 a.m. It took the Illinois Senate only one hour to radically alter Illinois’ justice system. Hours later, the SAFE-T Act was introduced in the Illinois House for the first time. It passed at 11 a.m. No bona fide hearings or debates occurred. There was no opportunity for input from proponents or opponents. Ramrodding through any bill, let alone one that will profoundly affect the lives and safety of nearly 13 million Illinoisans, is irresponsible, improper and wrong.

They also stressed concerns regarding the constitutionality of the Act:

First, the SAFE-T Act eliminates cash bail. Article 1, Section 9 of the Illinois Constitution’s Bill of Rights clearly states that a defendant has a right to bail set by the court, except in very limited circumstances. The Legislature does not have the authority to pass a law that amends the Illinois Constitution, nor can it be amended by executive orders.

Second, the SAFE-T Act is not confined to one subject. The act addresses abolition of cash bail, police training, complaints against police officers, use of body cameras, how a judge must evaluate a petition for detention, cancellation of automobile insurance and how the State Board of Elections should gather demographic data to determine legislative districts.

But the single-subject clause in the Illinois Constitution reads: “Bills, except bills for appropriations and for the codification, revision or rearrangement of laws, shall be confined to one subject.”

The most recent amendment to the Act made several significant changes to it:

1. Expands the scope of forcible felonies for which a judge can deny pretrial release if detainees are proven to pose a “real and present threat” to communities
2. Empowers judges to deny pretrial release for detainees based on flight risk or intent evade prosecution
3. Allows persons in custody come Jan. 1. to petition for a reversal of their pretrial terms starting with the least violent detainees
4. Creates an unfunded grant program to train and support public defenders with appropriations set by the General Assembly

Wednesday’s ruling means that cash bail will still be in effect for 64 Illinois counties (for now), though it will cease on Sunday for those counties which were not part of the lawsuit, including Cook, Lake, Kane, DuPage, and 34 other counties in the state.

In the 33-page ruling, Judge Cunnington found that portions of the Act violate the principle of separation of powers, concluding:

Because, as the Illinois Supreme Court has determined, the administration of the justice system is an inherent power of the courts upon which the legislature may not infringe and the setting of bail falls within that administrative power, the appropriateness of bail rests with the authority of the court and may not be determined by legislative fiat. Therefore, the court finds that Public Acts 101- 652 and 102-1104 as they relate only to the pretrial release provisions do violate this separation of powers principle underlying our system of governance by depriving the courts of their inherent authority to administer and control their courtrooms and to set bail. Elrod, supra.

As reported by ABC7, Illinois Attorney General Kwame Raoul disagrees with the decision, stating, “In fact, with the recent amendments to the SAFE-T Act, I think a judge’s discretion with regards to pretrial detention is expanded.”

Raoul also contends that the ruling does not restrict the Act’s implementation in any of the State’s 102 counties, as Judge Cunnington’s ruling did not include an injunction.

McHenry County State’s Attorney Patrick Keneally called the ruling, “a huge victory and it’s a victory for the rule of law,” but also noted that it was liable to lead to confusion:

“It’s going to inject an enormous amount of confusion in the Illinois court system writ large. You’re going to have different counties doing different things complying with different laws depending on the individual decisions of judges.”

Raoul’s office is expected to appeal the ruling to the Illinois Supreme Court, so this is far from over.