# Schilb v. Kuebel/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Marshall
* Dissenting Opinions Douglas Stewart
United States Supreme Court
404 U.S. 357
Schilb v. Kuebel
Argued: Oct. 12, 1971. --- Decided: Dec 20, 1971
Mr. Justice STEWART, with whom Mr. Justice BRENNAN concurs, dissenting.
In 1963, Illinois enacted new provisions governing bail in criminal cases. Ill.Rev.Stat., c. 38, Art. 110 (1963). These enactments provide that a person charged with a criminal offense may obtain pretrial release in one of four ways.
(1) The accused may be released on his own recognizance. Persons in this class do not pay any costs to cover the administration of their release. § 110-2.
(2) The accused may deposit 10% of the full amount of the bail that has been set. § 110-7. When bail is made in this manner, the clerk of the court ultimately retains as bail costs 1% of the full amount of bail (10% of the amount actually deposited). § 110 7(f).
(3) The accused may offer cash, stocks or bonds in an amount equivalent to the required bail. No administrative costs are imposed. § 110-8(a)(1).
(4) The accused may secure double the amount of required bail in unencumbered real estate. Again, no administrative costs are imposed. § 110-8(a)(2) and (f).
A person must satisfy a judge that he meets certain criteria to be eligible for release on his own recognizance. Otherwise the State allows individuals to choose freely among the three other methods of obtaining pretrial release (assuming the individual has the wherewithal to make a choice).
The 1963 bail provisions of the Illinois Criminal Code represented substantial reforms in the State's procedures for granting pretrial release. The central purpose of the legislation was to restrict severely the activities of professional bail bondsmen who had customarily collected 10% of the amount of a bond as a fee, which they retained whether or not the conditions of bond were met by the accused. Before 1963, accused persons who could not obtain release on their own recognizance had no choice but to offer the full amount of the bail that was set. The primary innovation of bail reform was to create a class of 'ten-percenters,' persons who could gain release by depositing only 10% of the required bail.
Appellant, John Schilb was charged with leaving the scene of an accident and obstructing traffic. Bail was set at $500 for the first offense and $250 for the second. As a 'ten-percenter,' the appellant posted $50 and $25 bonds. He was found guilty of the second charge and not guilty of the first. After these judgments were entered, the State retained $5 and $2.50 respectively, as administrative costs on his bonds. Subsequently, the appellant brought this class action against the clerk of the Circuit Court of St. Clair County, Illinois, alleging that the cost-retention provision of the state bail law, § 110-7(f), constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment because administrative costs are imposed only on that class of persons who obtain pretrial release by depositing 10% of the required bail. The Illinois Supreme Court ultimately upheld the validity of 110-7(f), with two justices dissenting. 46 Ill.2d 538, 264 N.E.2d 377 (1970).
It is common ground that the Illinois bail reform scheme reflects an admirable attempt to reduce the cost of liberty for those awaiting trial. Chapter 38, § 110-7(f), does arbitrarily discriminate, however, against the appellant and those similarly situated. As this Court said in Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497:
'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. . . . (L)egislation 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." Id., at 308-309, 86 S.Ct., at 1499-1500 (citations omitted).
The Court assumes that the rationality of § 110-7(f)'s classification should be analyzed in relation to the purpose of ending the evils created by the bail bond system. However, while ending those evils is the aim of the whole bail reform, it § not the aim of § 110-7(f) itself. Rather, the appellees have acknowledged that the purpose of § 110-7(f) is to cover administrative costs; they have also acknowledged in oral argument that the financial burden on the State is probably as great or greater for those who use the other methods of obtaining pretrial release. Can the appellees constitutionally justify the selective imposition of administrative costs? I think not.
The Illinois Supreme Court held that there can be no unconstitutional discrimination in the state system of bail release, since each person accused has a choice of method for obtaining pretrial release. 46 Ill.2d, at 548, 264 N.E.2d, at 382. Those who deposit 10%, said the court, 'are not automatically placed in this class . . . by the law. They join only by the exercise of their own volition.' Whether many persons accused of crimes can really choose between paying 10% or paying the full amount (or securing double the amount in real estate) is highly debatable. But however that may be, it is clear that not every person accused of a crime is free to choose to be released on his own recognizance. Yet those who are fortunate enough to be so released need pay no costs whatever.
The appellees argue that those who pay only 10% are being given a benefit that justifies imposing a burden. The appellees say that such persons are not required to put up the full amount of the bail set and that the 1% such persons do ultimately pay is a boon by comparison to the 10% of required bail that they would have automatically forfeited to the bondsman under the old procedures governing bail. This justification, however, also fails to distinguish between the 'tenpercenters' and those who are released on their own recognizance. Obviously, those released on their own recognizance receive an even greater benefit than those who deposit 10%, since they give no money to the State at any time if they meet the conditions of release.
The appellees attempt to distinguish between those released on their own recognizance and the 'ten-percenters' by noting that the recognizance practice is 'historic,' whereas the cost-retention provision was recently enacted to end the evils spawned by bail bondsmen. This distinction, however, does not confront the reality that both classes of persons receive benefits and only one class must pay administrative costs. A second attempt to distinguish between those released on their own recognizance and those who deposit 10% turns on the idea that the members of the former class are more 'worthy' of the benefit they receive and therefore may rationally be required to pay less. But while the criteria used by judges to determine release on one's own recognizance-e.g., length of residence in the jurisdiction, marital status, employment record, or past criminal record-are obviously relevant to the recognizance decision, they are not rationally related to the decision to impose purely administrative costs, especially when such costs are at least as great for those released on their own recognizance as for those required to post bond.
Given the infirmities in the asserted justifications for § 110-7(f), I think the imposition of administrative costs on only one class of those persons seeking pretrial release violates the Equal Protection Clause of the Fourteenth Amendment. Accordingly, I would reverse the judgment before us.

## Notes

* ↑ Other common abuses perpetuated by the bondsman system were overcharges of bail fees, failure to return security pledges to the owner, and retention of money reimbursements for forfeited bond judgments which were later vacated. D. Freed & P. Wald, Bail in the United States: 1964, p. 34 (1964). According to the appellees' brief, the Illinois reforms have apparently put an end to the activities of professional bondsmen. As the Illinois Supreme Court noted: '(T) he ultimate objective of this reform was to regain from professional bondsmen the control of bail releases and restore such control to the courts where it rightfully belongs.' 46 Ill.2d 538, 544, 264 N.E.2d 377, 380-381 (1970).
* ↑ I would decide this case solely on the ground that the provision in question arbitrarily discriminates between like classes of persons. I would not, therefore, reach the two other arguments urged by the appellants: that the provision arbitrarily favors the rich over the poor and that the provision violates due process by imposing costs on those who are ultimately found to be innocent.
* ↑ As the Court notes, the parties have stipulated that 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 higher cost in the administration of Section 110-8.' With regard to those released on their own recognizance (under § 110-2) and the 'ten-percenters,' the appellees acknowledged at oral argument that the administration or release for both classes imposes equal costs on the State:
* ↑ The Bail Reform Act of 1966, 18 U.S.C. §§ 3141-3152, a federal law in some ways similar to Illinois' provisions governing bail, provides for 'ten-percenters' at the discretion of the judge. However, it imposes no administrative costs on persons seeking pretrial release through the deposit of something less than the full bail required. 18 U.S.C. § 3146(a)(3). Earlier versions of the legislation had imposed an administrative cost of 1% of the total bail required on those who elected to deposit 10%, S. 2840, 88th Cong., 2d Sess. (1964).
* ↑ The dissent in the Illinois Supreme Court took 'judicial notice of the fact that many defendant cannot afford to pay the full amount of the bail.' 46 Ill.2d, at 553, 264 N.E.2d, at 385. From this basic fact it can be argued that, since many of those accused have no choice but to deposit 10%, the imposition of administrative costs upon that class alone amounts to a violation of the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.
* ↑ The appellees contend that those who offer the full amount of bail in cash actually pay an administrative cost because they sacrifice the interest that would accrue on the money. However, this argument totally fails to meet the objection raised with regard to those released on their own recognizance. Moreover, those who offer stocks or bonds or who secure property to obtain their release may not, apparently, lose any income that might accrue on those items during the period before trial. The statutory scheme governing bail does not by its terms provide for the State to receive interest, dividends, or rent on stocks or bonds or land. The record before us is silent on the question of Illinois practice with regard to the benefits that flow from those sources of income before trial. Stocks and bonds are deposited with the clerk of the court, but there is no indication that the accused does not continue to receive earnings. Similarly, the accused gives the State first lien on the real estate offered as bond, but there is no indication that the accused is deprived of the use of the land. Ill.Rev.Stat., c. 38, § 110-8 (1963).
* ↑ The Court refers to a statement made in oral argument that the State of Illinois has never imposed costs on those who obtain release on their own recognizance. But under the rules governing pretrial release that existed before the 1963 reforms, the State did not impose administrative costs on anyone obtaining pretrial release. 46 Ill.2d 538, 264 N.E.2d 377. The question here is whether the current, selective imposition of administrative costs by the State is constitutional.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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