McHenry County will keep cash bail following ruling on SAFE-T Act

SAFE-T Act’s elimination of cash bail set to take effect Jan. 1

McHenry County State's Attorney Patrick Kenneally (right) talks with Criminal Division Chief James Newman Wednesday, Dec. 28, 2022, about changes implemented as a result of the SAFE-T Act at their office in the McHenry County Government Center in Woodstock.

The elimination of cash bail set to take effect Jan. 1 will no longer be happening in McHenry County, the county’s chief judge and top prosecutor said.

In a decision on Wednesday, Kankakee County Chief Judge Thomas Cunnington ruled the cash bail provision of the Illinois Safety, Accountability, Fairness and Equity-Today, or SAFE-T, Act, was unconstitutional, as it takes the authority to set bail away from the courts, what he described as an “inherent power.”

The decision is the result of lawsuits filed by 64 county prosecutors, including Kenneally, that were consolidated in Kankakee County and comes just days before the cashless bail provisions of the law were scheduled to take effect on Jan. 1.

Illinois Attorney General Kwame Raoul, who said in news release Wednesday that he intends to appeal the decision, emphasized that the ruling only affects the pretrial portion of the SAFE-T Act and said even the elimination of cash bail, will still take effect on Jan. 1.

However, in a follow-up email on Thursday, his office clarified that it will be up to individual judges in other cases to decide if they agree with the Kankakee County decision.

His office does not plan to request an emergency stay that if granted by the Illinois Supreme Court could put Cunnington’s ruling on hold, a spokeswoman said.

“As of Jan. 1, individuals … will have the right to seek release from jail pending their trials – as allowed by the SAFE-T Act and the Illinois Constitution,” Deputy Press Secretary April McLaren said on Thursday. “Judges in those individual cases will have to decide if they agree with Judge Cunnington’s decision.”

McHenry County Chief Judge Michael Chmiel said Thursday the plan for McHenry County will be to continue using cash bail.

“What else would we do?” Chmiel said. “We have a law that says no more cash bail. That law is out now. ... We’re going to continue to follow the law we have for [decades].”

In the lead up to the law taking effect in McHenry County, legal authorities have been working to clear up new processes, such as how the county will handle arrests going forward. A courtroom in the McHenry County courthouse has been set aside to accommodate new detention hearings.

While McHenry County State’s Attorney Patrick Kenneally said he expects Cunnington’s decision to be appealed, he called the decision in a news release “a victory for the rule of law, which unfortunately the Illinois General Assembly and the Governor disregarded when passing this ‘solution in search of a problem’ legislation.”

“It is the legislative process, not the criminal justice system, that is broken in Illinois,” he said in the release.

An appeal to the Illinois Supreme Court could take “months to resolve,” Kenneally said, adding in an interview that he is concerned with it being left up to individual judges to make the call. He said he feels the state should continue with the current cash bail system until a final ruling is issued.

“It’s unfortunate,” Kenneally said. “This is not how we should be doing business in the state.”

State Sen. Craig Wilcox, R-McHenry, in a statement on Thursday called the SAFE-T Act “flawed from day one,” and chastised the Democrats for putting “political policy agenda over what our founders wrote into our Constitution.”

“Democrats knew what they wanted, and they pushed their bill through with no regard for public safety, the rights and responsibilities of the judicial branch, and proper process for making changes of this magnitude,” Wilcox said in the statement. “Judge Cunnington’s ruling is the latest proof that significant issues remain in this legislation.”

State Sen. Don DeWitte, R-St. Charles, gave a similar statement on Thursday, applauding Cunnington on the decision, adding that parts of the SAFE-T Act violate the separation of powers element of the state’s constitution.

“Had Democrats included Republicans in the process and heeded warnings that their hastily-passed SAFE-T Act was filled with constitutionality concerns, we would not be facing the utter chaos that is certain to ensue since this decision was handed down just three days before counties are expected to implement no-cash-bail provisions of the Act,” he said in the statement.

Joliet Herald-News reporter Felix Sarver and Northwest Herald reporter Amanda Marrazzo contributed to this report.