Schilb v. Kuebel/Opinion of the Court
John Schilb, of Belleville, Illinois, was arrested on January 16, 1969, and charged (a) with leaving the scene of an automobile accident and (b) with obstructing traffic. In order to gain his liberty pending trial, and in accord with the Illinois bail statutes hereinafter described, Schilb deposited $75 in cash with the clerk of the court. This amount was 10% of the aggregate bail fixed on the two charges ($500 on the first and $250 on the second). At his ensuing trial Schilb was acquitted of the charge of leaving the scene, but was convicted of traffic obstruction. When he paid his fine, the amount Schilb had deposited was returned to him decreased, however, by $7.50 retained as 'bail bond costs' by the court clerk pursuant to the statute. The amount so retained was 1% of the specified bail and 10% of the amount actually deposited.
Schilb, by this purported state class action against the court clerk, the county, and the county treasurer, attacks the statutory 1% charge on Fourteenth Amendment due process and equal protection grounds.  The Circuit Court of St. Clair County upheld the statute and dismissed the complaint. The Supreme Court of Illinois affirmed, with two justices dissenting. 46 Ill.2d 538, 264 N.E.2d 377 (1970). We noted probable jurisdiction. 402 U.S. 928, 91 S.Ct. 1524, 28 L.Ed.2d 862 (1971).
* The Illinois bail statutes compose Article 110 of the State's Code of Criminal Procedure of 1963, made effective January 1, 1964. This Code complemented Illinois' then new and revised Criminal Code of 1961, made effective January 1, 1962. The work of revision of the theretofore existing statutes was that of a Joint Committee of the Illinois State and Chicago Bar Associations. See 1 Ill.Rev.Stat. 1963, p. 1629.
Prior to 1964 the professional bail bondsman system with all its abuses  was in full and odorous bloom in Illinois. Under that system the bail bondsman customarily collected the maximum fee (10% of the amount of the bond) permitted by statute, House Bill No. 734, approved July 17, 1959, Ill.Laws, 1959, pp. 1372, 1376, and retained that entire amount even though the accused fully satisfied the conditions of the bond. See People ex rel. Gendron v. Ingram, 34 Ill.2d 623, 626, 217 N.E.2d 803, 805 (1966). Payment of this substantial 'premium' was required of the good risk as well as of the bad. The results were that a heavy and irretrievable burden fell upon the accused, to the excellent profit of the bondsman, and that professional bondsmen, and not the courts, exercised significant control over the actual workings of the bail system.
One of the stated purposes of the new bail provisions in the 1963 Code was to rectify this offensive situation. The purpose appears to have been accomplished. It is said that the bail bondsman abruptly disappeared in Illinois 'due primarily to the success of the ten percent bail deposit provision.' Boyle, Bail Under the Judicial Article, 17 De Paul L.Rev. 267, 272 (1968). See Kamin, Bail Administration in Illinois, 53 Ill.B.J. 674, 680 (1965).
Article 110 of the 1963 Code, as it read at the time Schilb was arrested and charged, provided that an eligible accused could obtain pretrial release in one of three ways:
(1) Under § 110-2 he may be released on his personal recognizance. 
(2) Under § 110-7 he may execute a bail bond and deposit with the clerk cash equal to only 10% of the bail or $25, whichever is the greater.  When bail is made in this way and the conditions of the bond have been performed, the clerk returns to the accused 90% of the sum deposited. The remaining 10% (1% of the bail) is retained by the clerk 'as bail bond costs.'
(3) Under § 110-8 he may execute a bail bond and secure it by a deposit with the clerk of the full amount of the bail in cash, or in stocks and bonds authorized for trust funds in Illinois, or by unencumbered nonexempt Illinois real estate worth double the amount of the bail.  When bail is made in this way and the conditions of the bond have been performed, the clerk returns the deposit of cash or stocks or bonds, or releases the real estate, as the case may be, without charge or retention of any amount.
In each case bail is fixed by a judicial officer. Section 110 5 prescribes factors to be considered in fixing the amount of bail.  Under § 110-6 either the State or the defendant may apply to the court for an increase or for a reduction in the amount of bail or for alternation of the bond's conditions. 
The choice between § 110-7 and § 110-8 is reserved to the accused.
The thinking and intentions of the Joint Committee revisers are apparent from the Committee's comments, as revised by its Chairman, Professor Charles H. Bowman, and reproduced in Ill.Ann.Stat., c. 38 (Smith-Hurd ed. 1970). 
The parties have stipulated that when bail in a particular case is fixed, the judge's 'discretion in such respect is not guided by state, rule of court or any definite, fixed standard; various and divers judges in fact fix the amount of bail for the same types of offenses at various and divers amounts, without relationship as to guilt or innocence of the particular defendant in a criminal charge, and without relationship of the particular offense charged and the bail fixed.' They have also stipulated, 'The actual cost of administering the provisions of said Sections 110-7 and 110-8 are substantially the same but there may probably be a slightly greater cost in the administration of Section 110-8.'
The Court more than once has said that state legislative reform by way of classification is not to be invalidated merely because the legislature moves one step at a time. 'The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.' Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). 'Legislatures are presumed to have acted constitutionally . . . and their statutory classifications will be set aside only if no grounds can be conceived to justify them. . . . With this much discretion, a legislature traditionally has been allowed to take reform 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." McDonald v. Board of Election Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969). The measure of equal protection has been described variously as whether 'the distinctions drawn have some basis in practical experience,' South Carolina v. Katzenbach, 383 U.S. 301, 331, 86 S.Ct., 803, 820, 15 L.Ed.2d 769 (1966), or whether the legislature's action falls short of 'the invidious discrimination,' Williamson v. Lee Optical Co., 348 U.S., at 489, 75 S.Ct., at 465, or whether 'any state of facts reasonably may be conceived to justify' the statutory discrimination, McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct., 1101, 1105, 6 L.Ed.2d 393 (1961); see United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 17, 27 L.Ed.2d 4 (1970), or whether the classification is 'on the basis of criteria wholly unrelated to the objective of (the) statute,' Reed v. Reed, 404 U.S. 71, at 76, 92 S.Ct. 251, at 254, 30 L.Ed.2d 225 (1971). But the Court also has refined this traditional test and has said that a statutory classification based upon suspect criteria or affecting 'fundamental rights' will encounter equal protection difficulties unless justified by a 'compelling governmental interest.' Shapiro v. Thompson, 394 U.S. 618, 634, 638, 89 S.Ct. 1322, 1331, 1333, 22 L.Ed.2d 600 (1969); Oregon v. Mitchell, 400 U.S. 112, 247 n. 30, 91 S.Ct. 260, 326, 27 L.Ed.2d 272 (1970) (opinion of Brennan, White, and Marshall, JJ.).
Bail, of course, is basic to our system of law, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951); Herzog v. United States, 75 S.Ct. 349, 351, 99 L.Ed. 1299, 1301 (1955) (opinion of Douglas, J.), and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment. Pilkinton v. Circuit Court, 324 F.2d 45, 46 (CA8 1963); see Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1965), and id., at 675, 82 S.Ct., at 1425 (Douglas, J., concurring). But we are not at all concerned here with any fundamental right to bail or with any Eighth Amendment-Fourteenth Amendment question of bail excessiveness. Our concern, instead, is with the 1% cost-retention provision. This smacks of administrative detail and of procedure and is hardly to be classified as a 'fundamental' right or as based upon any suspect criterion. The applicable measure, therefore, must be the traditional one: Is the distinction drawn by the statutes invidious and without rational basis? Dandridge v. Williams, 397 U.S. 471, 483-487, 90 S.Ct. 1153, 1160-1162, 25 L.Ed.2d 491 (1970). See Richardson v. Belcher, 404 U.S. 78, at 81, 92 S.Ct. 254, at 257, 30 L.Ed.2d 231 (1971).
With this background, we turn to the appellants' primary argument. It is threefold: (1) that the 1% retention charge under § 110-7(f) is imposed on only one segment of the class gaining pretrial release; (2) that it is imposed on the poor and nonaffluent and not on the rich and affluent;  and (3) that its imposition with respect to an accused found innocent amounts to a court cost assessed against the not-guilty person.
We are compelled to note preliminarily that the attack on the Illinois bail statutes, in a very distinct sense, is paradoxical. The benefits of the new system, as compared with the old, are conceded.  And the appellants recognize that under the pre-1964 system Schilb's particular bail bond cost would have been 10% of his bail, or $75; that this premium price for his pretrial freedom, once paid, was irretrievable; and that, if he could not have raised the $75, he would have been consigned to jail until his trial. Thus, under the old system the cost of Schilb's pretrial freedom was $75, but under the new it was only $7.50. While acknowledging this obvious benefit of the statutory reform, Schilb and his co-appellants decry the classification the statutes make and present the usual argument that the legislation must be struck down because it does not reform enough.
A. It is true that no charge is made to the accused who is released on his personal recognizance. We are advised, however, that this was also true under the old (pre-1964) system and that 'Illinois has never charged people out on recognizance.'  Thus, the burden on the State with respect to a personal recognizance is no more under the new system than what the State had assumed under the old. Also, with a recognizance, there is nothing the State holds for safekeeping, with resulting responsibility and additional paperwork. All this provides a rational basis for distinguishing between the personal recognizance and the deposit situations.
There is also, however, no retention charge to the accused who deposits the full amount of cash bail or securities or real estate. Yet the administrative cost attendant upon the 10% deposit and that upon the full deposit are, by the stipulation, 'substantially the same' with, indeed, any higher cost incurred with respect to the full deposit.
This perhaps is a more tenuous distinction, but we cannot conclude that it is constitutionally vulnerable. One who deposits securities or encumbers his real estate precludes the use of that property for other purposes. And one who deposits the full amount of his bail in cash is dispossessed of a productive asset throughout the period of the deposit; presumably, at least, its interim possession by the State accrues to the benefit of the State. Further, the State's protection against the expenses that inevitably are incurred when bail is jumped is greater when 100% cash or securities or real estate is deposited or obligated than when only 10% of the bail amount is advanced. The Joint Committee's and the State Legislature's decision in balancing these opposing considerations in the way that they did cannot be described as lacking in rationality to the point where equal protection considerations require that they be struck down.
Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), lends no support to the appellants here. In that case a New Jersey statute imposed the cost of a transcript upon the indigent appellant who had been convicted of a crime and was sentenced to prison and who then was unsuccessful on his appeal. The statute, however, did not impose that cost upon the indigent appellant who likewise was convicted of a crime, and was unsuccessful on his appeal, but who had received a suspended sentence or who had been placed on probation or who had been fined rather than sentenced to prison. The distinction the New Jersey statute drew between appellants was based only upon the nature of their punishment, and the burden was imposed only upon those who were confined. The Court held, and rightly so, that a punishment distinction had no rational connection with a transcript cost and served to deny equal protection to the convicted appellant whose liberty was at issue on the appeal. Mr. Justice Stewart, in speaking for the Court said,
'The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. It also imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. 'The Constitution does not require things which are different in fact . . . to be treated in law as though they were the same.' Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have 'some relevance to the purpose for which the classification is made." 384 U.S., at 308-309, 86 S.Ct., at 1499 (citations omitted).
The New Jersey distinction thus was invidious and without rationality for it was not related to the fiscal objectives of the statute and rested on no administrative convenience.
B. The poor-man-affluent-man argument centers, of course, in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct., 585, 100 L.Ed. 891 (1956), and in the many later cases that 'reaffirm allegiance to the basic command that justice be applied equally to all persons.' Williams v. Illinois, 399 U.S. 235, 241, 90 S.Ct. 2018, 2022, 26 L.Ed.2d 586 (1970).
In no way do we withdraw today from the Griffin principle. That remains steadfast. But it is by no means certain, as the appellants suggest, that the 10% deposit provision under § 110-7 is a provision for the benefit of the poor and the less affluent and that the full-deposit provision of § 110-8 is one for the rich and the more affluent. It should be obvious that the poor man's real hope and avenue for relief is the personal recognizance provision of § 110-2. We do not presume to say, as the appellants in their brief intimate,  that § 110-2 is not utilized by Illinois judges and made available for the poor and the less affluent.
Neither is it assured, as the appellants also suggest, that the affluent will take advantage of the full-deposit provision of § 110-8, with no retention charge, and that the less affluent are relegated to the 10% deposit provision of § 110-7 and the 1% retention charge. The record is silent, but the flow indeed may be the other way. The affluent, more aware of and more experienced in the marketplace, may see the advantage, in these days of high interest rates, in retaining the use of 90% of the bail amount. A 5% or greater return on this 90% in a short period of time more than offsets the 1% retention charge. In other words, it is by no means clear that the route of § 110-8 is more attractive to the affluent defendant than the § 110-7 route. The situation, therefore, wholly apart from the fact that appellant Schilb himself has not pleaded indigency, is not one where we may assume that the Illinois plan works to deny relief to the poor man merely because of his poverty.
C. The court-cost argument is that the person found innocent but already 'put to the expense, disgrace and anguish of a trial' is 'then assessed a cost for exercising his right to release pending trial.'  Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966), is cited. Giaccio was a holding that an ancient Pennsylvania statute that permitted the jury to impose court costs upon an acquitted defendant, in order to offset the expenses of prosecution, violated the Due Process Clause because of vagueness and the absence of any standards preventing the arbitrary imposition of costs. The Court thus did not reach the merits, although Mr. Justice Stewart and Mr. Justice Fortas, each separately concurring, 382 U.S., at 405, 86 S.Ct., at 522, felt that the very imposition of costs upon an acquitted defendant was violative of due process.
Giaccio is not dispositive precedent for the appellants here. Certainly § 110-7 is not subject to attack for vagueness or for lack of standards. Neither is it a vehicle for the imposition of costs of prosecution as was the Pennsylvania statute. Instead, § 110-7 authorizes retention of the 1% as 'bail bond costs.' This is what that description implies, namely, an administrative cost imposed upon all those, guilty and innocent alike, who seek the benefit of § 110-7. This conclusion is supported by the presence of the long-established Illinois rule against the imposition of costs of prosecution upon an acquittal or discharged criminal defendant. Wells v. McCullock, 13 Ill. 606 (1852), and by the Illinois court's own determination, 46 Ill.2d, at 551-552, 264 N.E.2d, at 384, that the charge under § 110-7(f) is an administrative fee and not a cost of prosecution imposed under Ill.Rev.Stat., c. 38, § 180-3 (1969), only upon the convicted defendant.
Finally, the appellants would point out that Article 110 has its federal counterpart in § 3(a) of the Bail Reform Act of 1966, Pub.L. 89-465, 89th Cong., 2d Sess., 80 Stat. 214, and in particular in that portion now codified as 18 U.S.C. § 3146(a)(3). They note that S. 2840, 88th Cong., 2d Sess., contained a 1% retention provision 'to defray bail bond costs' but that a parallel bill, S. 1357, 89th Cong., 1st Sess., as it progressed through Congress, at no time had a provision of that kind. It was S. 1357 that was enacted as Pub.L. 89-465.
The committee reports, S.Rep.No.750, 89th Cong., 1st Sess., and H.R.Rep.No.1541, 89th Cong., 2d Sess., U.S.Code Cong. & Admin.News p. 2293 accompanying the 1966 Act, and the debates, 112 Cong.Rec. 12488-12504. 12841-12843, make no reference to this change from the earlier S. 2840. In the face of this silence, and without more, and being cognizant of the fact that the federal act, unlike the Illinois one, was not directed against the professional bail bondsman, we are not inclined to read constitutional implications into the absence of the retention provision in the Bail Reform Act of 1966.
Neither are we inclined to read constitutional implications into either the presence or the absence of a retention provision in corresponding statutes of States other than Illinois. See N.Y.Laws 1936, c. 518, N.Y.Code Crim.Proc. § 586.3 (Supp.1970-1971), having a 2% fee provision, now replaced by §§ 520.10-520.30 of New York's new Criminal Procedure Law, effective September 1, 1971, without the provision. See Wis.Stat. §§ 969.02(5) and 969.03(1)(c) (1969), where a 1% fee is specified but not upon dismissal or acquittal. See Alaska Stat. § 12.30.020(b)(4) (Supp.1971); D.C.Code Ann. § 23-1321(a)(3) (Supp.1971); and Iowa Code Ann. § 763.16, subd. 1, par. c. (Supp.1971), in each of which a 10% deposit is authorized with no feeretention provision.
We refrain from nullifying this Illinnois statute that, with its companion sections, has brought reform and needed relief to the State's bail system. The judgment of the Supreme Court of Illinois is affirmed.
^1 Schilb also attacked the statute as violative of Art. II, §§ 2 and 19, of the Illinois Constitution of 1870 (now Art. I, §§ 2 and 12, of the State's 1970 Constitution), S.H.A.
^2 See D. Freed & P. Wald, Bail in the United States: 1964, pp. 34-35 (1964); R. Goldfarb, Ransom 92-126 (1965); Bowman, The Illinois Ten Per Cent Bail Deposit Provision, 1965 U.Ill.L.F. 35.
^3 '§ 110-2. Release on Own Recognizance
'When from all the circumstances the court is of the opinion that the accused will appear as required either before or after conviction the accused may be released on his own recognizance. . ..
'This Section shall be liberally construed to effectuate the purpose of relying upon criminal sanctions instead of financial loss to assure the appearance of the accused.'
^4 '§ 110-7. Deposit of Bail Security
'(a) The person for whom bail has been set shall execute the bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money equal to 10% of the bail, but in no event shall such deposit be less than $25.
'(f) When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited.'
Section 110-7(f) was amended in 1969 by Pub.Act 76-1195, approved Sept. 4, 1969, by Pub.Act 76-1394, approved Sept. 19, 1969, and by Pub.Act 76-1801, approved Oct. 9, 1969. It was further amended in 1970 by Pub.Act 76-2078, approved June 22, 1970, and now reads:
'(f) When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited. However, in no event shall the amount retained by the clerk as bail bond costs be less than $5.
'At the request of the defendant the court may order such 90% of defendant's bail deposit, or whatever amount repayable to defendant from such deposit, to be paid to defendant's attorney of record.'
^5 '§ 110-8. Cash, Stocks, Bonds and Real Estate as Security for Bail
'(a) In lieu of the bail deposit provided for in Section 110 7 of this Code any person for whom bail has been set may execute the bail bond with or without sureties which bond may be secured:
'(1) By a deposit, with the clerk of the court, of an amount equal to the required bail, of cash, or stocks and bonds in which trustees are authorized to invest trust funds under the laws of this State; or
'(2) By real estate situated in this State with unencumbered quity not exempt owned by the accused or sureties worth double the amount of bail set in the bond.
'(f) When the conditions of the bail bond have been performed and the accused has been discharged from his obligations in the cause, the clerk of the court shall return to him or his sureties the deposit of any cash, stocks or bonds. If the bail bond has been secured by real estate the clerk of the court shall forthwith notify in writing the registrar of titles or reorder of deeds and the lien of the bail bond on the real estate shall be discharged.'
^6 '§ 110-5. Determining the Amount of Bail
'(a) The amount of bail shall be:
'(1) Sufficient to assure compliance with the conditions set forth in the bail bond;
'(2) Not oppressive;
'(3) Commensurate with the nature of the offense charged;
'(4) Considerate of the past criminal acts and conduct of the defendant;
'(5) Considerate of the financial ability of the accused.'
^7 '§ 110-6. Reduction or Increase of Bail
'(a) Upon application by the State or the defendant the court before which the proceeding is pending may increase or reduce the amount of bail or may alter the conditions of the bail bond.'
^8 '. . . The provisions of sections 110-7 and 110-8 were designed to severely restrict the activities of professional bail bondsmen and to reduce the cost of liberty to arrested persons awaiting trial. . . .' P. 298.
'The committee realized full well the many arguments advanced in opposition to changing the present system. We were not impressed with any of them. If a person can pay a professional bondsman ten per cent of the bail amount as a fee, he can deposit it with the clerk. At the present time he receives nothing back from the bondsman if he appears for trial; his ten per cent fee is gone. Under the provisions of (§ 10-7(f)) he gets back ninety per cent of the amount deposited if he appears. The ten per cent of the deposit retained by the county will offset in monetary amount the costs of handling bail bonds (which must be done now anyway), and any loss resulting from the occasional bail jumper where the prefessional bondsman might now forfeit the amount of the bail. . . .' P. 300.
'This section (§ 110-7) is new and provides the procedure for depositing ten per cent of the amount of bail as security for appearance. However, the bail bond will provide for forfeiture of the full amount of the bail upon nonappearance. In addition, the accused would be subject to the penal provisions for bail jumping. However, subsection (f) provides for a return of ninety per cent of the bail deposit (which amounts to (retention of) one per cent of the amount of bail set by the court in the first instance) to the accused upon compliance with the conditions of the bail bond. The ten per cent of the deposit retained by the clerk is to cover costs of handling bail bonds and deposits.' P. 316.
'There is nothing in Article 110 which is intended to work any additional hardship on anyone in the giving of bail. It is designed to permit the continuation of present practices in regard to sheriffs, police officers, etc., taking cash bail or drivers' licenses, and to simplify the procedures in all other cases so as to lessen the ultimate cost of bail to offenders (by thousands of dollars each year) who appear for trial anyway, and to assure to the counties in every case a reasonably amount (one per cent of the total amount of bail set) to cover the cost of time and paper-work involved in handling bail cases.' P. 324.
^9 Schilb has neither alleged nor shown that he is indigent or that he applied for and was denied release on his personal recognizance. No question of standing, however, was raised in the Illinois courts or here. The Illinois Supreme Court found it unnecessary to pass upon the propriety of the class action. 46 Ill.2d, at 552, 264 N.E.2d at 384.
^10 'QUESTION: Mr. O'Toole (counsel for appellants), (if) you prevail here, do you anticipate the old bond(s)man system will be revised?
'MR. O'TOOLE: Oh no, your Honor. . . . that is the furthest thing-we want to make that eminently clear. We believe this to be very good legislation. We feel this aspect of it is wrong. Definitely not, there would not be any reincarnation of the bondsman.' Tr. of Oral Arg. 11.
^11 Tr. of Oral Arg. 27.
^12 'Thus, those least able to afford it, the poor and non-affluent, who have no choice but to remain in jail or deposit 10% of bail, are unconstitutionally, 'penalized in a quest for justice due to a lack of wealth." Brief for Appellants 16.
^13 Brief for Appellants 16.