dollars bail bond forfeiture penalty against my client after he was acquitted was unconstitutional this afternoon i hope to argue that a bail bond cost statutes unconstitutional unconstitutionality under both the supreme court case of nelson versus colorado and the illinois supreme court case of people versus cook though of course i'm happy to take any questions on any of our my client mr lovelace was found to be in and then acquitted of all criminal charges yet he was assessed a thirty five thousand dollars bail bond forfeiture penalty farish the imposition of any monetary assessment on an acquitted her symbiote needed due process under nelson versus colorado this is a shocking deprivation of property not rationally related to any government and this second the ten percent bail bond retention was unconstitutional under people versus cook because it was imposed without regard to mr lovelace his ability to pay i've said mr lovelace was acquitted nelson and now it's in the supreme court examined the question that's relevant here when a criminal conviction is invalidated is the state obliged to refund fees court cost restitution when there is no conviction the supreme court said our answer is yes there is no conviction here and the process is generally deficient for mr lovelace review the supreme court  tremendous i financial burden with that i think in this case also although he was not convicted it was still tied to the  offend because it's imposed in consideration to the a to the offense and under illinois law that makes it it can't be a cost or feat to it have to be a penalty which makes said sensually tied fee has to be tied to compensation to the state for services provided and that the bail bond constitute doesn't do that so in the end the supreme interest to recoup in the money paid to the state and in this case because it really is a final it can't be cost or a fee under illinois law then it's even more vulnerable under n this is a penalty that whatever cost was attendant to my client being now i'm bail was covered by the electronic monitoring feed which we are not contesting this thirty five thousand dollars is clearly a penalty and the state has no interest in keeping it so as and now say in the bouncing test ways decisively for my client and show is that section seven f is unconstitutional the next point and i'd like to make is that the bond forfeiture statue is also unconstitutional because  for reimbursement to the state of public defender fees which in that case was a fee that was tied to services provided to the defendant unlike unlike here where it's really that the us argues that it's tied to the function of the overall bail bond system but not that it's tied to actual services provided to my client which makes said can't be a cost or under illinois so and even there where was the feed the court still needed to give the defendants an opportunity to show that they were and bijan that that didn't happen here and it's not required under the statute and for that reason it's indistinguishable from where they apply rational basis and under rational basis the statue also fails  it is not tied to illegitimate state interest and there there needs to be an injured you can see determination  so i will continue on to my next argument which i've touched upon the fact that this is a penalty under illinois law which has been very careful as exhibited under people versus jones  distinguishing a cost a fee and a fine so a cost and a fee of the main factor for determining whether something is a cost or fee is whether it's compensatory in nature  there is no argument here that this is compensating the state for any service provided and so it can not be a cost or a fee and it's necessarily a penalty which makes  conviction there's and there's no offense there can be a fine and again any costs that were provided expended by the state for my client to be out on bail were covered by the electronic monitoring bail bond and there hasn't been argued that it does make a if under illinois law if money is used for a general fund of a service that's a fine and my cl then why should also be struck under the equal protection clause and the illinois uniformity clause because under under the current tax if someone u ses bail in cook county they only pay one hundred dollars that's unfair to the rest of the state unfair to my client and it show is that it is not a cost or fee because how could it cost a hundred dollars in cook county but it cost thirty five thousand dollars in adams county that it doesn't make sense and it shows that the way that the bail bond cost well i mean i don't think that it is i think i think it's still showing that the statue is being applied unfairly here and have also shown th yes but i still think i got a list of what the legislature has chosen to do and other statutes it's so unfair here it's still thirty five thousand dollars two hundred dollars and if we're saying that the purpose if i had to say to say that the purpose is to fund the bail bond system it doesn't cost more i downstate and a why should downstate counties fund the  that that may be but that does not make the statue constitutional as applied to my client and i think also when you're looking at thirty five thousand dollars that could affect liberty interest and that somebody may choose not to go out and bail because of that staggering cost and there's no reason that somebody down see should be faced with that choice and ok so how can now some both require there to be a rational relationship between the state depriving someone especially and this a person of their property or affecting their rate their right i don't legitimate state interest for doing this there is no rational relationship between section seven after which is not provide any protective procedures for engine acquitted people facing a tremendous cost of property and therefore section seven  having what in this instance is the best separates in the amount of bond with the letter i look for legislative history comment as to why they made this distinction in this case i couldn't find anything on point size plaque which it was that from the this record or the road court decision play this was the district court so it was not the seventh circuit but violated bat and i and it is a common that phrase carries with population over three million people is a very common phrase in only statutory authority the point of platte is that even assuming cook county has moved away from this and kept it at one hundred dollars that does not mean that there is a not a rational basis to continue the one percent system in the rest of the state especially considering the strong government interest there is in keeping this fee at one percent appellate arguments basically a of rely on two iranians assumptions one that this is a penalty or a fee it's clearly not or a penalty or fine it's clearly not it's not a punitive in nature it has no it does not matter at all what the outcome of the trial is if there's a conviction or acquittal this has to do with the time before trial and during trial  it doesn't matter what happens to a defendant when arrestee after that so it should not be considered a penalty or a fine because punitive measures are taken into account the second assumption is that this  is based on a fundamental right like in cook and love those two cases apply to the fundamental right to counsel and whether indigent definit can pay for that schill stated over forty years ago that this  is not a fundamental right and can hardly be classified as a fundamental right or based upon any subs suspect arterial that showbiz still go law shill speaks directly to this statutory section and held that not only is it constitutional but it does not violate the equal protection plat so much more recent cases were going to act like chill because antiquated or whatever plat apply shield throughout the whole thing section one to eight would not exist section one tin that is the full bond deposit system also i would point to a palace reply brief they incorrectly state that one to eight you can't pay that full bond by cash clearly you can i don't know if that was a misreading or misstatement or what but that part of their brief should be disregarded the first subsection of section one ten eight discusses paying the the total bail amount in cash if there is no fee in section one hundred seven  absolutely no reason for anyone to ever pay more than ten percent of their bond because the appellant also fails to recognize that the state then bears ninety percent of the liability just as a bet i guess a bail bondsman would in the old days they  take ninety percent of the liability that bail on for that time period this is not a fundamental right this is a this is a benefit to those defendants they only have to pay ten percent a bet of that bail in exchange for him percent feet or one percent of the total bellemont amount feet the second strong governmental interest is that it is a flat percentage fee it's simple it's easy to administer and it also fluctuates with the state's liability that takes care of any equal protection argument as shillman and plateau both tell the third strong governmental interests is that the bail bond feet the phrase the cost of administering the bail bond system both the administrative costs as well as the costs of those who jumped bail i would also add that the service that appellant argues there's no service that somebody is getting they're getting the service of only having to pay ten percent of their bail in other words the state is on the hook for the other ninety percent of the liability at risk that is a cost that should be considered in this section as part of that administrative cost and i think that both platt and shill hold that as far as cook and love  they again had to do with a fundamental right right to counsel that that means that they're not analyzed under a rational basis the highly deferential rational basis standard here i just gave you three strong governmental interests that are rationally related that in there in melson the supreme court held that a colorado statute called the exoneration act it violated due process they're requiring a defendant whose conviction have been vacated to prove their innocence again by clear and convincing evidence in order to obtain a refund of cos fees and restitution spade for two pursuant to the invalid conviction that's the important phrase there as justice steinman pointed out this is not pursuant to any conviction this has nothing to do with whether if it's convicted or acquitted it has nothing to do with the outcome of any trial therefore it's hard to say what process do process is being violated here there's no process at all it's a one percent fee it's junior high math calculated just move the deciples decimal point over to to  spaces and that's how much they pay of the total bound amount and if they want to avoid that fee it's easy you go through section one ten dash eight either by real estate or stocks or bonds or by cash otherwise as  points out there would be no incentive to use the full bond deposit system nelson's instructive though for one reason is that and that's that they use the matthews test that weighs three factors to determine whether procedural due process is violated of the first act as a private interest to be affected by the government sanction class stated because there is no fundamental right to be free from administrative fees which is what this is the payment of a bonfire does not trigger any heightened level of private or private interest so that weighs heavily i in favor of the state second matthews factor is the risk of an erroneous deprivation here palin is not even arguing that bail was incorrectly calculated that the bail amount itself is improper in fact they went through a procedural a procedural guideline and move to reduce the bail and that was granted so the risk of an erroneous deprivation of too high a bail here is minimal especially in this case and then the risk of an erroneous deprivation of this fee is almost impossible simply one percent of the total bail amount so the second matthews factor also weighs heavily in favor of the state and the third and final one is the government's interest including any administrative or financial burdens that additional procedural safeguards i already told you about the three strong governmental interests but a state of illinois of course has interest in collecting fees to support the administration of the entire bail system if the defendant does use the ten percent system the state has a ninety percent liability or risk interest the government of course maintains a legitimate interest in reducing its exposure you argue the plan to sue us those are two federal court decision  restitution or a fine or anything like that as far as plat and again the uniformity cause issue and plat was also soundly rejected for reasons i already discussed finally the trial court was abuse of discretion they did not abuse or abdicate their discretion in this case first the record clearly or specifically stated it knew it had discretion to give back more than ninety percent of the bailiff stated that exact thing on the record it just chose not to use that discretion mention the length of the proceedings this was an eight month back to the fee encourages compliance and the fact that the bond was a few funds the costs all three of those are legitimate government interests brought up in both children flat the court did say that it never saw less than ten percent many years on the bench however that comment didn't suggest some sort of foregone conclusion or a rigid policy or anything like that that was in the context of the explaining the lack of the word in any case any case law holding an of discretion when the trial court did not give back less than ten percent the only cases appellate cites are cases where the trial court specifically stated on the record mistakenly that they didn't have the discretion that they ought to pay they did not know that they had the discretion to give back more than ninety percent here we know that's not the case the trial court specifically stated that on the record so there is no arbitrary or unreasonable decision here the trial court did not abuse of discretion careful illinois law determining what is a cost and what is a five and there they kind of blithely say well this is a cost and they say it's a cost and relation to the bail bond system that's not what illinois does own noise if a cost is imposed to fund something generally that's a fine and it's a fine here to be a cost or fee has to be tied to some expense of the state incurred in in the living gay shit and that that is that's a penalty and you can say  nelson does not apply simply because there was not a conviction because they were concerned with depriving the same people of property so in a way it's saying they were looking out hundred dollars you know a thousand dollars a night you need if you're in the set and it can be that they can see the supreme court concerns themselves there with one hundred dollars a thousand dollars and here thirty five thousand dollars with no relation to any expense incurred by the state is ok just because my client was acquitted on the first instance but that just can't beat that is has no rational basis in anything and i think  with you know that how big it is how can it cost thirty five thousand dollars in adams county and when the judge said well that's basically how the clerk funds their office if that's an indication of legislative  and what's happening here that is a fine there there's no argument the state doesn't make one that this is related to some actual service provided for just saying well the state had to bear the risk at the time this was imposed the risk was was done he was acquitted there was no risk anymore that three million dollars that he should have spent he should have just given the whole three million and got it that's a fiction that's a real thing and i think it shows why this statute is unconstitutional because people don't have back and money it's not you can choose the one percent or you can choose to give three million dollars you would choose jail and that does  a liberty interest and the cook does apply here because they applied the rational basis test they did they didn't say this is a rational basis for imposing here thirty five thousand dollars on the innocent person and we're not contesting the five thousand dollars that was the cost associated with him what's a fine and they look at you know even the end of a probation quite services on the fourth district only charges that when probation has actually done an assessment that's ten dollars i'm somebody who is being convicted so we're dollars on somebody who's convicted but we're not going to worry about thirty five thousand dollars i'm somebody has to sit in a set because forty six years ago when the system was first in place we said it smacks of ministry person and to it just i guess assumes this is a cost and that it's legitimate to fund the system in toto and it and it's just