Chicago City Wire

The reckoning is at hand for the cashless bail provision in the General Assembly’s overhaul of the criminal justice system, the SAFE-T Act approved in the Democratically controlled legislature with no debate late last year.

On Tuesday, the Supreme Court justices, five of whom are Democrats, heard oral arguments both in support and against a late December ruling by Kankakee County Judge Thomas Cunnington that the provision violates both the Crime Victims’ Bill of Rights and separation of powers sections of the state Constitution. Cunnington is a Republican.

The other, more practical side of the debate – and one broached on Tuesday by Kankakee County State’s Attorney Jim Rowe who argued against the provision’s constitutionality – is what cashless bail means to public safety.

Law enforcement and county prosecutors (outside Cook County) argued the provision will make an already high crime rate much worse; victims rights advocates and criminal justice reformers insist cashless bail will actually make the streets safer.

For John Jay College of Criminal Justice Adjunct Professor Joseph Giacalone, the elevation in crime if the provision -- stayed since the Cunnington ruling -- is upheld will be real and immediate.

“It’s just ludicrous to keep on going down the same road of zero deterrence,”  Giacalone, former head of the Bronx Cold Case Squad, told Chicago City Wire in an email.

“No longer are there consequences for people’s actions - deterrence is another alternative to jail that no one wants to use anymore.”

“When you look at the number of reforms already in place and the violence continues, when is an adult going to stop and say, ‘This is not working,’” he added. “Chicago homicides are higher now than the 1990s when none of these ‘reforms’ were in place.”

In Chicago, the union representing police officers, FOP Lodge 7, filed a document with the court stating that cashless bail would have a “drastic adverse impact on the work and safety of its members, their families, the community they serve, and the work of all law enforcement officers across Illinois. Less detention results in more crime, including violent crime.”

Critics also maintain that the legislation was vaguely worded, and hastily approved.

Under the cashless bail provision, detention can only be imposed if the defendant poses a “specific, real and present” threat to a person or has a high likelihood of willful flight.

But notes the Illinois Policy Institute in an earlier analysis of the provision, “The phrase ‘specific, real and present threat’ is not defined, and there is no case law that interprets the meaning of the phrase, though “real and present threat” is a standard used in jurisdictions outside of Illinois.”

The 764-page bill was never vetted in the General Assembly. The first time state senators as a body saw the legislation was 4 a.m. on December 1. They approved it an hour later. The House approved it at 11 a.m. the same day.

“The sponsors of the SAFE-T Act have asserted they were addressing flaws in our state’s criminal justice system,” former Cook County Judge Daniel Locallo wrote in a commentary, with former Cook County assistant state’s attorney Dan Kirk, and former chief of appeals in the state’s attorney’s office, Alan Spellberg. “If this was true, then input should have come from judges, state prosecutors, public defenders, private criminal defense attorneys, law enforcement officers, probation officers, civil rights advocates, victim’s rights groups and clerks of the circuit courts.”

The spiraling crime rate looms large in the April 4 runoff for the mayor’s race between Paul Vallas and Brandon Johnson. Vallas is on record opposing the end to cash bail; Johnson supports ending it.

It’s unclear when the Supreme Court will rule.