404 U.S. 357 (1971), 70-90, Schilb v. Kuebel

Docket Nº:No. 70-90
Citation:404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502
Party Name:Schilb v. Kuebel
Case Date:December 20, 1971
Court:United States Supreme Court

Page 357

404 U.S. 357 (1971)

92 S.Ct. 479, 30 L.Ed.2d 502




No. 70-90

United States Supreme Court

Dec. 20, 1971

Argued October 12, 1971



Illinois law provides three ways in which an accused can secure his pretrial release: (1) personal recognizance; (2) execution of a bail bond, with a deposit of 10% of the bail, all but 10% of which (amounting to 1% of the bail) is returned on performance of the bond conditions, and (3) execution of a bail bond, secured by a full amount deposit in cash, authorized securities, or certain real estate, all of which is returned on performance of the bond conditions. Appellant Schilb, charged with two traffic offenses, secured pretrial release after depositing 10% of the bail fixed. He was convicted of one offense and acquitted of the other. After he paid his fine, all but 1% of the bail (amounting to $7.50) was refunded. In this class action, he thereafter challenged the Illinois system on due process and equal protection grounds, claiming that the 1% retention charge is imposed on only one segment of the class gaining pretrial release, and on the poor but not on the rich; and that its imposition on an accused found innocent constitutes a court cost against the nonguilty. The trial court dismissed Schilb's complaint, and the State Supreme Court affirmed.


1. The Illinois bail system does not violate equal protection requirements. Pp. 364-370.

[92 S.Ct. 481] (a) The facts that the State has no safekeeping costs where release is on personal recognizance, and has never imposed a charge with respect to a recognizance, provide a rational basis for distinguishing that situation from the situations where deposits are made. Though the administrative costs of the deposit system are substantially the same, other factors afford a rational basis for making no charge under the full amount deposit system. Rinaldi v. Yeager, 384 U.S. 305, distinguished. Pp. 367-369.

(b) There is no indication that the personal recognizance system is not used without regard to the economic status of the accused, or that the full deposit system actually favors the affluent. Pp. 369-370.

2. No due process denial results from retention of the 1% charge, which is an administrative fee (and not a cost of prosecution), imposed on all -- guilty and innocent alike -- who seek its

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benefit. Giaccio v. Pennsylvania, 382 U.S. 399, distinguished. Pp. 370-371.

46 Ill.2d 538, 264 N.E.2d 377, affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE and MARSHALL, JJ., joined. MARSHALL, J., filed a concurring opinion, post, p. 372; DOUGLAS, J., filed a dissenting opinion, post, p. 373. STEWART, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 381.

BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN delivered the 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

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the statutory 1% charge on Fourteenth Amendment due process and equal protection ground.1 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 (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,2 was in full and odorous bloom in Illinois. Under that system, the bail bondsman [92 S.Ct. 482] 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

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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.3

(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.4 When bail is made in

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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 fund in Illinois, or by unencumbered nonexempt Illinois real estate worth double the amount of the [92 S.Ct. 483] bail.5 When bail is made in this way and the conditions of

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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 115 prescribes factors to be considered in fixing the amount of bail.6 Under § 116, 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 alteration of the bond's conditions.7

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,

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and reproduced in Ill.Ann.Stat., c. 38 (Smith-Hurd ed.1970).8

[92 S.Ct. 484] The parties have stipulated that, when bail in a particular case is fixed, the judge's

discretion in such respect

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is not guided by statute, rule of court or any definite, fixed standard; various and divers judges, in fact, fix the amount of bail for the same types of offense 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 (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 (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 (1966), or whether the legislature's action falls short of "the invidious discrimination," Williamson v. Lee Optical Co., 348 U.S. at 489, or whether "any state of facts reasonably may be conceived to justify" the statutory discrimination, McGowan v. Maryland, 366 U.S. 420, 426 (1961); see

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United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6 (1970), or whether the classification is "on the basis of criteria wholly unrelated to the objective of [the] statute," Reed v....

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