# Schilb v. Kuebel/Dissent Douglas

* 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 DOUGLAS, dissenting.
Appellant John Schilb brought this class action on behalf of all criminal defendants against whom the Clerk of the Circuit Court of St. Clair County, Illinois, had assessed fees of 10% of the amounts deposited as bail bonds. At issue was Ill.Ann.Stat., c. 388 § 100-7(a) (1970), which allowed a defendant to be released from custody upon 'deposit with the clerk of the court . . . a sum of money equal to 10% of the bail' which had been set by the court. Appellant challenged, under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the provision that 'the clerk of the court . . . retain as bail bond costs 10% of the amount (so) deposited.' Id., at § 110-7(f). He argued that this was an unconstitutional discrimination because bail bond costs were not imposed upon those who were released on their personal recognizance, id., at § 110-2, or those who deposited cash or other security in the full amount of the bail bond. Id., at § 110 8.
The Circuit Court found the statute constitutional and dismissed the complaint. The Supreme Court of Illinois affirmed the judgment, 46 Ill.2d 538, 264 N.E.2d 377; we noted probable jurisdiction, 402 U.S. 928, 91 S.Ct. 1524, 28 L.Ed.2d 862.
The commercial bail bondsman has long been an anathema to the criminal defendant seeking to exercise his right to pretrial release. In theory, courts were to set such amounts and conditions of bonds as were necessary to secure the appearance of defendants at trial. Cf. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Those who did not have the resources to post their own bond were at the mercy of the bondsman who could exact exorbitant fees and unconscionable conditions for acting as surety. See A. Beeley, The Bail System in Chicago 39 (1927); D. Freed & P. Wald, Bail in the United States: 1964, p. 34 (1964); R. Goldfarb, Ransom 92-126 (1965); Ares & Sturz, Bail and the Indigent Accused, 8 Crime & Delinquency 12 (1962); Boyle, Bail Under the Judicial Article, 17 De Paul L.Rev. 267, 272 (1968); Note, 106 U.Pa.L.Rev. 693 (1958); Note, 102 U.Pa.L.Rev. 1031 (1954). Criminal defendants often paid more in fees to bondmen for securing their release than they were later to pay in penalties for their crimes. Bowman, The Illinois Ten Per Cent Bail Deposit Provision, 1965 U.Ill.L.F. 35, 36.
Moreover, the commercial bond system failed to provide an incentive to the defendant to comply with the terms of his bond. Whether or not he appeared at trial, the defendant was unable to recover the fee he had paid to the bondsman. 'No refund is or was made by the professional surety to a defendant for his routine compliance with the conditions of his bond.' Kamin, Bail Administration in Illinois, 53 Ill.B.J. 674, 678 (1965).
It was in response to the abuses and inequities of the commercial bonding system that Illinois enacted the statutory scheme now under attack. The Supreme Court of Illinois indicated 'that the central purpose of the legislature . . . was to severely restrict the activities of professional bail bondsmen who customarily collected 10% of the amount of a bond as a fee which was retained whether or not the conditions of the bond were met by the accused.' 46 Ill.2d, at 544, 264 N.E.2d, at 380. To accomplish this end, it was only necessary to deal with the class represented by appellant. Those defendants who posted security in the full amount of the bail bond or who were free on their own recognizance stood in the same financial position under the new statutory scheme as under the old. No costs have ever been imposed upon them and any security deposited has always been returned upon the satisfaction of the terms of the bond.
Those defendants who under the old system had utilized the services of the professional bondsman are now required to post with the clerk of the court 10% of the face amount of their bonds in order to win their release. The significant difference, however, is that upon satisfaction of the terms of their bonds, § 110-7 now allows them to recover 90% of the amount deposited, while no such recovery was ever had from the commercial bondsman. Rather than paying a fee of 10% of the face amount of the bond, therefore the cost is now only 1%.
Appellant urges that the new system of pretrial release is constitutionally deficient despite the improvement it has wrought. Appellant first argues that § 110-7 imposes costs upon only one class of criminal defendants without any rational basis for the classification. Next he asserts that the poor and nonaffluent, who have no choice but to remain in jail or deposit 10% of bail, are unconstitutionally penalized due to lack of wealth. Finally, he says that § 110-7 violates the Due Process Clause insofar as it allows costs to be taxes against an accused who is ultimately found innocent.
In response, appellees assert that the classification implements the laudable purpose of eliminating the commercial bail bondsman. Under this view, the 1% fee is no more than the interest charged for allowing an accused his freedom upon payment of only 10% of the amount set as bail. Appellees urge that a system which requires liberal use of an accused's release on his own recognizance, Ill.Ann.Stat., c. 38, § 110-2 (1970), and which reduces to a fraction of the previous cost the financial burden on those required to post cash bonds, actually benefits the indigent.
I do not reach the question of equal protection but rest my decision on the issue stirred, but not decided, in Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447. The plaintiff in this action, John Schilb, was charged (1) with leaving the scene of an automobile accident and (2) obstructing traffic. He posted a 10% bond on each charge-one for $50 and one for $25; he was acquitted on the first one had was charged $7.50 on the two bonds.
The 1% charge is a part of the cost of a criminal prosecution, imposed even on an innocent person who is accused of a crime and who is put to the expense and anguish of a trial. Giaccio involved a state statute which directed juries 'in all cases of acquittals' to determine whether the government or the defendant should pay the costs. 382 U.S., at 400-401, 86 S.Ct., at 519. We held the Act unconstitutional on grounds of vagueness. Mr. Justice Stewart, concurring, said: 'In the present case it is enough for me that Pennsylvania allows a jury to punish a defendant after finding him not guilty. That, I think, violates the most rudimentary concept of due process of law.' 382 U.S., at 405, 86 S.Ct., at 522.
Mr. Justice Fortas also concurred, saying: 'In my opinion the Due Process Clause of the Fourteenth Amendment does not permit a State to impose a penalty or costs upon a defendant whom the jury has found not guilty of any offense with which he has been charged.' Ibid. That is my view on the merits in the instant case.
Some costs are the unavoidable consequences of a system of government which is required to proceed against its citizens in a public trial in an adversary proceeding. Yet I see no basis for saying that an accused must bear the costs incurred by the Government in its unsuccessful prosecution of him. Imposition of costs upon individuals who have been acquitted has long been eschewed by our courts. E.g., State v. Brooks, 33 Kan. 708, 715, 7 P. 591, 596 (1885); Biester v. State, 65 Neb. 276, 91 N.W. 416 (1902); Childers v. Commonwealth, 171 Va. 456, 198 S.E. 487 (1938). Some jurisdictions have provided that the imposition of costs upon acquitted individuals is reprehensible. See, e.g., Costs in Criminal Cases Act, 15 & 16 Geo. 6 & 1 Eliz. 2, c. 48 (1952); Report of the Attorney General's Committee on Poverty and the Administration of Criminal Justice 31-32 (1963); Goldberg, Equality and Governmental Action, 39 N.Y.U.L.Rev. 205, 223-224 (1964); Note, 1962 Wash.U.L.Q. 76. Where there is such uniform condemnation of a practice as onerous as the imposition of costs upon acquitted defendants, cf. Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302 (1952), I would conclude, with Justices Stewart and Fortas in Giaccio, that it violates due process.
It is, however, said that the 1% charge is not 'a vehicle for the imposition of costs of prosecution' and that it is merely 'an administrative cost imposed upon all those, guilty and innocent alike, who seek the benefit of § 110-7.' Supra, at 370, 370-371. The costs of administering the bail system occur, by definition, only during the course of criminal prosecutions. They are as much an element of the costs of conducting criminal cases as the prosecutor's salary, the fee for docketing an appeal, or the per diem paid to jurors. Nor does the rubric 'administrative' require a contrary result. If this were the talisman through which a State could impose its costs upon acquitted defendants, I could see no stopping point and we might be left with a system in which an acquittal might be nearly as ruinous to the defendant as a conviction.
On the other aspects of the case facts are absent which we would need to know if we are to make an informed judgment on the requirements of equal protection. The discrimination condemned is an 'invidious' one, it being recognized over and again that 'legislation may impose special burdens upon defined classes in order to achieve permissible ends.' Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577. The elimination of the professional bondsman seems to me to be a permissible end. The provision for the 10% bond is, in that view, an ameliorating one. The problem on which this record leaves us in the dark is theactual working of that provision and the provision for release on personal recognizance. Not everyone, I assume, is entitled to pretrial release. Equal protection would seem to require that each, whether rich or poor, black or white, is entitled to release on personal recognizance if he meets the requirements of stability, reputation, community ties, and so on. In Illinois the record is silent as to how the system of release on personal recognizance, as contrasted to release on the 10% bond, is in fact administered. The manner of administration may, of course, raise serious equal protection questions. For a statute fair on its face may be administered in an invidious way. As stated in Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct., 1064, 1073, 30 L.Ed. 220:
'Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.'
But, as I have said, the record contains no factual basis showing the manner of administration of the Illinois system.
I would reverse this judgment insofar as it imposed bail bond costs under the criminal charges of which members of the class represented by appellant were acquitted and remand for further proceedings respecting the bail bond costs on the charges on which they were convicted.

## Notes

* ↑ A study by the Champaign County Bar Association indicated that bail was often set at a higher amount than necessary to satisfy these objectives:
* ↑ In 1962 in Cook County, for example, professional bail bondsmen wrote bonds totaling $18,513,965 entitling them to receive $1,851,396 in fees. These bondsmen, however, paid forfeiture judgments of only $18o,938. Id., at 36.
* ↑ The primary argument advanced in favor of retaining the commercial bond system was that the professional bondsman would, at his own expense, track down and recapture a defendant who jumped bail. This argument was found by the Illinois Legislature to have only tenuous factual support:
* ↑ Appellees note that a major portion of those defendants who avail themselves of the 10% bail provision are not indigent. A wealthy accused who could afford to pay either 10% or 100% of the amount set as bail might well elect to pay only 10% if the 1% cost thereby imposed would be less than the interest which could be earned if the 90% were retained and invested.
* ↑ The Manhattan Bail Project which has been in operation since 1961 deals only with felony defendants:
'In evaluating whether the defendant is a good parole risk, four key factors are considered: (1) residential stability; (2) employment history; (3) family contacts in New York City; and (4) prior criminal record. Each factor is weighted in points. If the defendant scores sufficient points, and can provide an address at which he can be reached, verification will be attempted. Investigation is confined to references cited in the defendant's signed statement of consent.' D. Freed & P. Wald, Bail in the United States: 1964, p. 59 (1964).
From 1961 to 1964 out of 13,000 defendants, 10,000 were interviewed, 4,000 were recommended for release on personal recognizance, and 2,195 were paroled. Of these, only 15 failed to show up in court, a default rate less than seven-tenths of one percent.
If Illinois' experience is comparable, it is understandable why those who pass muster on personal recognizance may be treated more leniently than those who do not qualify for that kind of release. In that connection 60% of those released on personal recognizance in Manhattan were either acquitted or had their cases dismissed, compared with 23% of the others. Id., at 63.
If that were the experience of Illinois, the State certainly could not be charged with making an invidious discrimination against the other group, even though the cost of administering the personal recognizance program was as high as the cost of administering the bail program. Cf. Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4 (1970); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 33 S.Ct. 441, 57 L.Ed. 730 (1913). Cost of administration is only one item for comparison. The lessened burden on the State accruing from the few convictions and the resultant jail term sentences is a factor that a State may take into consideration. Certainly if the Illinois experience parallels the Manhattan experience, we would be hard put to say that Illinois shows an invidious discrimination against those who can only make bail as compared with those who are qualified to be released on personal recognizance.
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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