In 1995, I was the assistant public defender, now retired, who unsuccessfully argued before the Illinois Supreme Court that the no-bail provision of the stalking law was unconstitutional.

As Judge Thomas W. Cunnington wrote in his December 28 memorandum of decision holding the SAFE-T Act unconstitutional—the implementation of which has been put on hold pending the Illinois Supreme Court’s review of the Cunnington decision—SAFE-T’s The unconstitutionality of the T Act flows from two provisions of the Illinois Constitution.

First, the bail provision, Article I, Section 9, specifically includes the option for the trial court to make a cash bond (bail) a condition of pre-trial release. Second, there is a separation of powers provision in the Constitution, Article II, Section 1.

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When you add these provisions together, it matters little whether the Legislature passed the SAFE-T Act or whether the state’s attorney and public defender and private defense bars in Cook, Lake, and Will counties are SAFE-T. willing to comply with the Act. terms. Any trial court in Illinois has the separation of powers to set a cash bond and an inherent, administrative authority due to the Bail Clause in the Constitution. Moreover, the court can do it on its own without a request from any of the parties.

While the case I argued in the Supreme Court is significant to the Cunnington decision, perhaps the more important Supreme Court case, cited by Cunnington, is one where, even though no statutory provision exists in the Juvenile Court Act or the Criminal Code Provided that a trial court can, on its own, fix cash surety for two juveniles who were facing prosecution for offenses as adults, because the trial court has the inherent discretion to fix cash surety, had administrative authority.

This right cannot be taken away from the trial judge merely by the enactment of a statute (as this would violate separation of powers), the will of the parties or even the absence of a statute which provides for a cash bond in a given case. authorizes.

As Cunnington eloquently writes, the issue is not what the state’s attorney wants, the defendant wants, the defense wants, or the Legislature wants. Rather, the simple issue is what the trial court is inherently empowered to do under the Constitution as interpreted by the Supreme Court.

Cunnington leaves the door open for the abolition of the cash bail system in Illinois. This would be achieved by voters amending the bail provision of the Constitution. This would allow the Legislature to re-enact the no-cash bail provision of the SAFE-T Act.

James N. Pearlman, Buena Park

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