SCHILB v. KUEBEL

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Argument of John J. O’toole

Chief Justice Warren E. Burger: We will hear arguments next in number 90, Schilb against Kuebel.

Unknown Speaker: Your honor prior to proceeding I would like to make a motion.

Chief Justice Warren E. Burger: Would you just protest this event for a moment that we can clear this counsel?

Mr. O’Toole, you may now proceed.

Mr. John J. O’toole: Mr. Chief Justice, may it please the court, I moved that James A. Rooney be permitted to argue pro hac vice on behalf of the appellee in this case, he is a member in good standing of the bar of Illinois but he has not been a member for more than three years.

Chief Justice Warren E. Burger: You motion is granted for the purpose of this case, so you may proceed Mr. O’Toole.

Mr. John J. O’toole: In 1963, 75th General Assembly of the State of Illinois revamped our entire bail procedure, and they did this for two-fold reasons and the main and the most important one was to assure that all persons regardless of their financial status would not be unnecessarily detained a waiting trial.

As an ancillary blessing of the system we have practically eliminated the Bondsman System in the State of Illinois.

Basically, what this legislation did was to enable a person accused of a crime to gain his pretrial freedom in one of the three manners, under 110-2 he could make an application for release on his recognizance, under 110-8 he could post the full amount of the bond, I mean the bail set by the court in either cash, stocks, bonds or real estate in double the value, or he could deposit 10% of the full amount of bail under 110-7 and all of this was very good and has been very effective.

But in doing so, they put in one anachronism and that is they impose a cost on the individuals who are released under 110-7, those that make a deposit of 10% of the full amount of bail.

In this case, John Schilb and all those other similarly situate sought and received their release under 110-7 and they were all charged a 10% bail cost upon their release or conviction.

Now we contend that this imposition of a cost on this one segment is unconstitutional for all of the people involved here seek one end and that is to be released so they could prepare for trial and not to be subject to pretrial incarceration, yet they impose the burden of supporting the entire system on one segment of that class.

The second--

Justice Harry A. Blackmun: Let me ask you do they -- have they imposed the 1% on those who deposit a 100%, he would not be--

Mr. John J. O’toole: Oh no, I think there is -- as the argument develops Mr. Justice Blackmun, you will see that if there was an over across the board imposition of the cost, I would still alleged that it would be not proper in that it could never be imposed upon indigents, true indigents, nor could it ever be imposed upon a man who is found innocent.

So, just across the board statute I do not think would solve our judges --

Unknown Speaker: You mean even if it were simply that everyone has set released under it either of the three provisions would pay $10 (Inaudible), is it still like that?

Mr. John J. O’toole: I think it would be wrong, when it became to a true indigent or to a person that was innocent.

Unknown Speaker: True indigent, might be if he could not pay up, that would be one of problem.

But you would also say it was unconstitutional as charge found innocent--

Mr. John J. O’toole: Right.

Unknown Speaker: --of the $10, is that it?

Mr. John J. O’toole: That is part of our contention before this court, where it is not only this class aspect where we say one segment is segregated out in burden.

But in addition to that, we also contend that these people who put up the 10% simply cannot afford the full amount of bail and they are penalized in their quest for justice in contrary to the long line of cases since Griffin versus Illinois.

Chief Justice Warren E. Burger: Not necessarily true.

A man might be in business and want to keep his cash, keep his cash flow position very liquid.

So, instead of buying a bond, he put up the 10% even though he had a hundred thousand dollars in the bank.

Mr. John J. O’toole: Oh yes, your honor.

I buy this fully that that statement was not meant to be a universal.

I think the statistics will bear out which we have cited some in our brief that as the amount of bail goes up, the ability to make the full bond decreases sharply and whereas some people might choose to only put up the 10%.

The fact is, that he has a choice but what about that large segment of our population?

And actually this is a moderately poor, the working man, who just does not have a sufficient assets to make that choice.

He has no choice, he has to go in and make the deposit and then he is subjected to the burden of supporting the whole system.

It is not his choice.

Unknown Speaker: I know, but everybody who walks with a lower amount pays it.

Mr. John J. O’toole: Yes, yes your honor—that was an element.

But then, if it is unconstitutional to even impose it on one person, I think the whole statute--

Unknown Speaker: Well, I gather your class here is not relative to indigent--

Mr. John J. O’toole: No, I will agree.

Unknown Speaker: Indigents, is it?

Mr. John J. O’toole: A true indigent is helped in one way, by 110-7.

And he is harmed in one way by 110-7F which is the cross provision.

If I were a true indigent, I would have a far better chance of borrowing the money if I could signed the back of that bond receipt and the one who lends it on me was willing to get full amount back.

As it is now, he only gets 90% of it.

Unknown Speaker: Yes but, you mean the true indigent would not have a 10% of those, will he?

Mr. John J. O’toole: Oh, I agree with you, your honor.

We are talking about the people who are relative.

Bail--

Unknown Speaker: But would it be about people here who, if I understand it correctly, who have posted the 10%--

Mr. John J. O’toole: That is right your honor.

Unknown Speaker: And whose complaint is that when the purpose of the bail has been served, they get back only 90% of what they deposit.

So we are really about indigents as indigents?

Mr. John J. O’toole: No, actually not indigents in the true sense of the word.

Unknown Speaker: But you are saying that the statement did not say to anybody, we will relieve you from the obligation to post a 100% of bail which is parole system, we will give you the option -- we will give you the chance of getting out on bail by depositing 10% but in that case, it is going to cost you something, it is going to cost you 1%.

Mr. John J. O’toole: I do not think they can do it if they do it in an equal manner.

Unknown Speaker: Do they say that to everybody?

Mr. John J. O’toole: Excuse me Your Honor.

Unknown Speaker: They say that for everybody?

Mr. John J. O’toole: I do not think that they have the power.

I think that the way that it is set up here is that, it is just not constitutionally permissible.

Unknown Speaker: But if I were a rich man or if I had some money and the State gave me this charge, it would still be invalid to me?

Mr. John J. O’toole: On the 10%?

I do not think that it could be practically segregated out to a question of proof in each case if an individual actually had the option, but the question remains that as long as all people do not have a choice, this is their only means of getting out on bail, they should not be charged with the burdens.

Unknown Speaker: Well as I get it-- if you have -- those who were released on own recognizance.

Mr. John J. O’toole: Right your honor.

Unknown Speaker: --are charged no fees.

Mr. John J. O’toole: Not at all.

Unknown Speaker: -- to support the bail system or administration, right?

Mr. John J. O’toole: Right your honor.

Unknown Speaker: Those who post to 100% are charged no fees.

Mr. John J. O’toole: Are charged no fee.

Unknown Speaker: The only ones who pay are those who post 10%--

Mr. John J. O’toole: That is right.

Unknown Speaker: And they are charged 10% of the 10%.

Mr. John J. O’toole: 10% of the 10% or a net of 1%.

Chief Justice Warren E. Burger: Going back to hypothetical, if someone opposes, do you require, I would like to get your answer again, suppose the statute provided for a $25 fee for everyone for administrative override, where they released on its own recognizance, where they released on a bail bond or they released on 10% or a 100% what about that?

Mr. John J. O’toole: I would answer the question in the same manner, Mr. Chief Justice and that would be that I think that it would valid as to all except the true indigent and except to those that are found innocent.

Chief Justice Warren E. Burger: Well by definition of the indigents, for all practical purposes has a waiver (voice overlap) which you cannot (Inaudible) as it were, then you would say it is invalid as to the person ultimately found innocent.

Mr. John J. O’toole: Right your honor.

Chief Justice Warren E. Burger: Now, what theory is that?

Mr. John J. O’toole: Well the theory of that is what—

Chief Justice Warren E. Burger: Constitutional Theory?

Mr. John J. O’toole: Constitutional Theory.

This court entered a decision in 1966 in Giaccio versus Pennsylvania in which a jury in Pennsylvania was permitted at the finding of a person innocent to impose court trust.

And that the court in majority opinion held that the statute was vague.

But the concurring opinion of Mr. Justice Stewart stated that in his opinion, it was a violation of due process, rudimentary due process, and I think that that is the law of the land and that should be the law in regard to this case, that in no manner can anybody impose a cost attended to a criminal proceeding and individual found innocent.

And if there is any question as to whether that is an integral part of a proceeding is probably the most important aspect because it affects the man’s family, it affects the outcome of the trial or it affects the severity of a sentence, unduly burdens of man, he losses his job and that—

Justice Potter Stewart: Mr. O’Toole, that was somewhat different at least in chronology in the Giaccio case because there was a trial and the jury found the defendant innocent and then, only then, of course the defendant required to pay something after he had been found innocent but surely, there is a cost.

There are many cost imposed upon people and under charges of criminal offenses if not monetary cost.

There is a cost of a -- a possibility of incarceration if he cannot make bail and the various others social cost and personal and psychological costs to go along with just being the target of the criminal charge even if that person is eventually found not guilty.

There are all sorts of cost, either the constitution or any judges interpreting or applying can really-- do we want to apply those costs.

Mr. John J. O’toole: I agree with you Mr. Justice Stewart that there are other costs that are created by our society.

Justice Potter Stewart: By just the levering of a criminal charge.

Mr. John J. O’toole: Right.

But this is not created by our society.

This is created by our legislature.

Justice Potter Stewart: Well and that is acquired by the society as far as (voice overlap).

Mr. John J. O’toole: It is a cost that's imminent to that proceeding.

The interesting thing to note too in relation to that cost is that prior to enactment of this new Act when we had the Bondsman, the court perform the same service, handled the same paper and never charged anybody anything.

Unknown Speaker: (Inaudible).

Mr. John J. O’toole: No.

But now, the legislation—

Justice Potter Stewart: The expense from the point of that the defendant as I gather is much, much higher until you got this so called reformed legislation.

Mr. John J. O’toole: That is right your honor.

But basically, I believed, that the difference here is that we cannot remedy the aspect of the social evil but we can remedy this cost.

Justice Harry A. Blackmun: Mr. O’Toole, you prevail here, you anticipate that the old Bondsman system will be revived?

Mr. John J. O’toole: Oh no, your honor, Mr. Justice Blackmun, that is farthest thing we want to make that eminently clear, we believe this to be very good legislation.

We feel this aspect of it is wrong and definitely not, there would not be any reincarnation of the Bondsman.

Unknown Speaker: Well obviously, there is an expense to administering this purpose.

Mr. John J. O’toole: Yes your honor.

Justice William J. Brennan: And the state somehow has to pay those expenses.

Now if you prevail, where are they going to get the money to pay the cost of administering the bail group?

Mr. John J. O’toole: The same place they got it before Mr. Justice Brennan.

Justice William J. Brennan: Out of what?

Mr. John J. O’toole: Back into old system, on the bond forfeitures, they realized X balance.

Today, under out statute, our sheriff, our state’s attorney is required to collect bond forfeitures and they go after people that do jump bond and that if a person had the full amount of bail up or he has got 10% up, right at that point you have costs coming in or cost reimbursement.

In addition to that, it is quite a record in the very foundation, the Columbia Bail Study and various other findings that the local and state and federal governments are saving millions and millions of dollars a year due to the fact that when we have enlightened legislation such as this that the jail population slips significantly and that our fewer people incarcerated waiting trial.

Now —

Unknown Speaker: Of course they could put $5 bail, they can impose $5 ahead on everyone who has admitted the bail.

In other words (Inaudible)

Mr. John J. O’toole: I will only say that we are having trouble in the area of a true indigent and I still feel that this is cost attending—

Unknown Speaker: But you would not have anymore trouble in the areas of the true indigents and you have worked with this present system where a true indigent is required to put up 10% of the bail and if he cannot pay it, he stays in jail.

Mr. John J. O’toole: That is right your honor.

The true indigent, there is no problem in that area.

Unknown Speaker: Mr. O’Toole, what do you think was the supposed policy behind the distinction between the 10% people and the 100% people?

Mr. John J. O’toole: Well, I believe this was the idea behind it, is that at the time or prior to the enactment of legislation under the Bondsman system, an individual could give the Bondsman 10%, the Bondsman in most cases would retain the entire 10%.

Unknown Speaker: You do not think it was that the 10% people would be more likely to jump bonds of those who have done a 100%?

Mr. John J. O’toole: I do not believe so, your honor.

I believe basically, it was a question that they felt if they were -- if these people were paying a charge to the Bondsman, they can pay a charge to the clerk, a charge which was never imposed on them before, but there is one basic difference in that too, is that our clerk does not assume liability for any bail jumping as the Bondsman did.

And there the cost was justified by a possible liability.

Justice William J. Brennan: It is definitely because the election that of the suspect, whether they deposit 10% or a 100% or what the judge say, in your case, you will have to deposit a 100% (voice overlap).

Mr. John J. O’toole: Mr. Justice Brennan, in the State of Illinois it is 10% flat, no discretion in the court at all.

Justice William J. Brennan: I see, in other words, the suspect might make the election whether you to deposit 10% or 100%

Mr. John J. O’toole: If he has--

Justice William J. Brennan: --if he had denied release on the his own recognizance.

Mr. John J. O’toole: Right, if he has the necessary funds.

Unknown Speaker: And this is a bailable offense.

Mr. John J. O’toole: Yes, that is right your honor, that there are a couple of offenses in the State of Illinois which are not bailable.

Chief Justice Warren E. Burger: Now going back to the preposition I suggested before and let me make a variation of it, suppose a man had a million dollars in the bank and they fix $100,000 as bail, now he has got that money out earning interest, is he likely to put up the 100% or is he likely to put up 10%?

Mr. John J. O’toole: I do not know what that individual would do perhaps he would elect to put up the 10%.

Chief Justice Warren E. Burger: (Voice overlap) it is arithmetic and common sense to put up 10%.

So it is not a poor-man rich-man argument really at all, is it?

Mr. John J. O’toole: Well, I think when you get into the poor-man rich-man area Mr. Chief Justice, this court -- in a bail application Mr. Justice Douglas said, that having that poverty in the area of bail is merely whether you have enough money to pledge for your freedom.

This was recognized by our former Chief Justice in a speech before the National Bail Conference also, that when it comes to bail, the question of poverty is a relative concept.

It might bond as a thousand dollars and I have 900.

I am a poor man because I am going to be incarcerated waiting trial, that is the concept.

Also, we have to take into – a factor I could you an example saying the State of Illinois that if an individual owned a larg ebuilding with a million dollars and he had a mortgage of a 100,000, he could not pledge that on a real estate bond because our statute requires unencumbered, that he would be relatively poor as far as that was concerned and he would have no choice as to whether he was going to deposit full or 10%.

We feel that that it is very clear from (Inaudible) that the one segment is definitely discriminated against.

We feel the relative is poor discriminated against and we feel that this is a cost pertinent to a criminal proceeding which should not be recognizance.

Chief Justice Warren E. Burger: Mr. Rooney, you may proceed whenever you are ready.

Argument of James A. Rooney

Mr. James A. Rooney: Mr. Chief Justice, may it please the court.

I think that the best way to understand why the Illinois 10% deposit provisions are constitutional to take a look at what we had in Illinois before they were passed.

Prior to 1963, when the whole bail procedure in Illinois was overhauled, we had two ways of getting out of the jail once bailed had been set.

First of all, you had a release on recognizance which was not utilized, that was perhaps cured, perhaps not cured if the release on recognizance is doubled in Illinois since the bail reform statute went through.

It has doubled.

Unknown Speaker: Yeah, the number released on --

Mr. James A. Rooney: The number released on recognizance has double and it is still not an extremely large percent.

But we still have to release on recognizance.

The only other way you can get out prior to 1963 was either to have yourself or somebody else for you pledge the full amount of the bond.

Now because you have to pledge the full amount of the bond, there were defacto three categories of people.

There were the rich who could put up the full amount of the bond, there were those who could not put up the full amount of the bond but could go to the bondsman to pay his fee and get out that way, and then there were who really -- the truly indigent who just did not have the money even to go to the bondsman, they have to stay in jail, attending the trial of their case.

Now, I think there is a difference of opinion as to the purposes of 110-7, the 10% bail deposit provisions.

They were, first of all, designed to get rid of the bail Bondsman in Illinois.

Unknown Speaker: What for is that 10% should be paid?

Mr. James A. Rooney: The 10%, usually cash.

Unknown Speaker: Usually, what are the forms may it take?

Mr. James A. Rooney: The statute says that, money, it is all.

Unknown Speaker: So, it has to be cash?

Mr. James A. Rooney: It has to be cash.

The other purpose of the Bail Reform Act 110-7 was to reduce the financial imposition on those who had to go to the Bail Bondsman.

Now, the reason why to get rid of the bail bondsman is fairly obvious, they have been the villains for all the legal journals over the last 20 year.

There were all sorts of abuses including some scandals that unfortunately involved judges and the Assistant State Attorneys in Cook County and throughout the State of Illinois but that does not mean that bail bondsman should still be around just because we had judges and Assistant States attorneys involved.

The big problem was that, by statute in Illinois, a bail bondsman could charge 10%.

Now, that was suppose to be the maximum limit that bail bondsman could charge but unfortunately in things like this, that became the minimum and it finally got to the place where the bail bondsman, not the judge, held accused to the jail in many cases because if you are unable to post the full amount of the bond and you want to go to see the bail bondsman, the bail bondsman will take a look at you and you will decide whether or not you are a good risk.

If you are not at good risk, the price went up and so 10% was the beginning of the bargaining.

Now other scandals that involved the bail bondsman having judgments vacated and not returning the pledges to the defendants, and of course the way they got the defendants back to the courtroom if the bond had been jumped was notorious.

So, what the Illinois legislature wanted to do is first of all, get rid of the bail bondsman, second of all, make it a little bit less expensive for those who are not exercising a constitutional right but exercising really statutory right to get out.

When you went to the bail bondsman, you put down the amount of your bail, excuse me, the 10% with him, the statutory amount and then the bail bondsman all he did was was sign a bond, he did not have to put down any money because he had money down in his bank, that is the way it worked.

But when you put down that 10%, that is the less you saw that -- no matter whether you were innocent, not-guilty, you forfeited 10% of the amount of your bond.

Now, I think a question was asked, where do we get the 10% and the 1%?

Unknown Speaker: Mr. Rooney then tell us, what you think is the purpose of the 1%?

Mr. James A. Rooney: The purpose of the 1% is to cover basically the expenses of the clerk in writing the bonds, keeping records on the bonds, returning forfeited bonds—it is a big operation.

Unknown Speaker: And then what is in the charge if the man who puts a 100% down?

Mr. James A. Rooney: It is not charged to the man who puts a 100% down because we feel that he is exercising a constitutional right.

We feel that the constitutional right is the right to a reasonable amount of bond.

Now, the man who gets the 100% bond, he is exercising a constitutional right to what his reasonable amount would be.

A man is exercising the 10% right is exercising a statutory right which we feel -- we are not letting him out on reasonable amount of bond, we are letting him out on 10% of what a reasonable amount would be.

Unknown Speaker: (voice overlap) is it hard for them to justify those who are out on their own recognizance?

Mr. James A. Rooney: It makes it harder to justify those who are on their on recognizance.

Unknown Speaker: What if we charge it to them?

They are not necessarily indigent.

As a matter of fact that's what likely they are.

Mr. James A. Rooney: We think they are little differently situated than those—

Unknown Speaker: Not expense wise to the system?

Mr. James A. Rooney: No, not expense wise to the system but before you are released on recognizance, the judge makes a a defacto but rather extensive look into your background and we think that these type of defendants, since it is more likely that they will show up and it is all relative, the sort of discretionary with the judge , the release on recognizance, since they more likely to show up do we think that there is sufficiently, differently situated as not to charge them.

Unknown Speaker: Well exactly -- let us now ever consider a fact free basis instead of--

Mr. James A. Rooney: I do not believe so.

Chief Justice Warren E. Burger: Certainly the cost to the state is across the board, is it not?

Mr. James A. Rooney: The cost of the state is across the board and in the stipulation of facts when we process a bond where there are securities or mortgage and the un- mortgaged real estate are put down, there is perhaps a slightly greater expense to the state then when just cash is put down under the 10% --

Unknown Speaker: Have other states adopted systems like the State of Illinois?

Mr. James A. Rooney: Not--

Unknown Speaker: Have they gone to the 10% deposit and so forth, do you know whether they charge?

Mr. James A. Rooney: No, it is unique.

Illinois is unique in charging a 1%, so you have a total (voice overlap)

Unknown Speaker: They charge a flat rate or what?

What do the others do?

Charge nothing or charge a flat rate?

Mr. James A. Rooney: Well, a good example is the federal statute.

In the federal statute, it is up to the discretion of the judge whether he lets you out at a 100% or 10%.

Now, there are all sorts of other conditions you can put on your bond.

In Illinois, the legislatures limited the discretion of the judges to releasing a man on his recognizance or setting a dollar amount of bail.

The legislature has not vested the judge with that type of discretion, perhaps by an amount of 10%, perhaps not by the amount of 10%.

Once he sets the amount, it is automatic.

Justice Thurgood Marshall: Mr. Rooney, the fact that 1%, is it not $100,000 bond and a $1000 bond are the same kind of papers, just fixing the amount of time--

Mr. James A. Rooney: Correct.

Justice Thurgood Marshall: I mean, why does not he just have flat rate of $10 for each bond.

Is anything in history on that at all?

Rebuttal of John J. O’toole

Mr. John J. O’toole: Yes, there is something in the history.

The committee that recommended the legislature that this Bail Reform Act be adopted found that, first of all, there was a 10% charge as the bail bondsman charge and that the general bond forfeiture rate brought into the state 1%.

Justice Thurgood Marshall: I see.

Mr. John J. O’toole: Out of all the bonds that are forfeited, almost all of them were written by bail bondsman at that time.

We got a return of 1% of the amount of money, so that is why they chose the 1%.

Chief Justice Warren E. Burger: At any given time do you know what is the balance or the average balance in all of the accounts maintained to this 10%?

Mr. John J. O’toole: The average balance, I can tell you how much the state ends up making each year in Cook County.

In Cook County, we end up making about $1,250,000 a year.

Chief Justice Warren E. Burger: And the interest?

Mr. John J. O’toole: In 1%.

Chief Justice Warren E. Burger: Oh no, I mean in interest, this money whether it is a 100% or 10% is put in the bank I assume, is it not?

Mr. John J. O’toole: I assume so.

Chief Justice Warren E. Burger: I assume also if we put it in the bank it pays interest.

Mr. John J. O’toole: Our public officials would be -- were missing their duty if they did not put it in that type of an account.

I do not know what the -- I guess the interest would be 1,250,000 times whatever the prevailing bank rate would be.

Unknown Speaker: That's is 1% not 1,000,000, we are taking about 10%, the 10% deposit, the total of all debts, 10% deposit is how much?

Mr. John J. O’toole: That would be 12, 12 million.

12,500,000 over a year.

Unknown Speaker: (voice overlap) that much money--

Mr. John J. O’toole: I do not know what the cash flow is and how much we do have in the accounts at any given moment.

Chief Justice Warren E. Burger: So let us assume 4%, that is quite a lot of money that is coming in.

Mr. John J. O’toole: Yes it is, but I tried to do some research on how much it costs the state to process all the bonds and it was rather a few.

I could find out that certain departments that are concerned only with bonds, the two departments I am talking about are those that once the bonds are executed are responsible for keeping track of them and that the bond refund section and those two sections, the expenses around each year are about $415,000.

This does not count at all, the salaries of people who write bonds and that is hard to find out because some are written at the police station by policeman, some are written by clerks in the courts, and we just could not find the figures on it, we tried.

Now, the difference between 1963 and now is that Illinois is granting a substantial benefit to those same people who would have to go to the bail bondsman.

The indigents still have to sit in jail.

But there is certain group, just sort of medium group between being able to put up the 100% and going to the bail bondsman.

But they do not have to go to the bail bondsman and pay 10%.

Now what Illinois has done is, let us say you got a bond set a $100, the person will put down $10 and be released and the state would charge him $1, so what in effect has happened is the State of Illinois has loaned him a for the period of the case, no matter how long it took and for John Schilb it took five months, they have loaned him $90 and they are charging a $1 interest for the term of the case and no bail bondsman can match that and that is the really the reason the bail bondsman vanished in the Illinois Courts.

Unknown Speaker: Can you make any suggestions whether the state considers that a fellow puts up a 100% and provided the state with money from which the state earns this interest enough so that he makes a contribution not unlike that of the 1% charge against the fellow who puts his own recognizance.

Mr. John J. O’toole: Yes he does during the term that the 100% is put up, that money also is invested just like the 10%.

He is not making a contribution.

I do not know what the figures on that also.

Unknown Speaker: (Inaudible).

Mr. John J. O’toole: Correct, he does not.

Chief Justice Warren E. Burger: Do you have any information of how many people who have put up a 100% in money?

Mr. John J. O’toole: Yes, in the Circuit Court of Cook County, 90% of the people put up the 10% bond.

About 10% put up the 100% and--

Chief Justice Warren E. Burger: And the 100% money be in money or real estate?

Mr. John J. O’toole: Might be money or real estate or bonds or bonds or securities.

Unknown Speaker: It has to be encumbered real estate.

Mr. John J. O’toole: An encumbered real estate.

Unknown Speaker: (Inaudible)

Mr. John J. O’toole: I am sure although we have got quite a few more (Inaudible).

The reason that 90% of the people put up the 10% bond rather than the 100% bond is based on I think on the return that they can get.

There are a lot of rich people who would much rather put up 10% and have the other 90% working for them because the state loans money at such a fantastically low interest rate.

So, I do not think that really rich man poor man makes much difference here because anybody given a choice, if they think it out, will put up the 1%.

For those poor people, the state is loaning the money at such a fantastically low interest rate that I just do not think rich man poor man applies.

Unknown Speaker: What about the recognizance people?

Mr. John J. O’toole: The recognizance people, as I tried to make clear, State considers them substantially different than the people who required the money.

Unknown Speaker: I know you said that but I do not understand it.

They are different in the sense that they do not have to put up any money.

Mr. John J. O’toole: But there are also different type of individual that the judge would not have let them out.

Unknown Speaker: That is true, but are you saying that you are deciding in advance there are certain kind of people as that people and a hundred people--

Mr. John J. O’toole: No, but the judge has to make that type of determination.

Unknown Speaker: (Voice overlap)in extensive expense of administering the program.

There is certainly an expense involved in connection with those who are released on their own recognizance that (Voice overlap)

Mr. John J. O’toole: Correct, their expenses are the same as putting up cash bond.

I am sorry I did not understand the question which you asked.

Unknown Speaker: I know the State considers them different but how are they different so that a state may satisfy their entire burden out of this one group?

Mr. John J. O’toole: They are substantially different and the judges made a decision that they are most likely to return to the court and therefore they need not to be burdened with this type of expense as opposed to the others.

Unknown Speaker: --Just made a decision that it is not going to require the people involved to contribute to the administrative cost of the cash bond system but not to the collateral bond system but not to the recognizance bond system and the question is whether or not that can be rationally supported?

Mr. John J. O’toole: I think that since we are granting to this people, a new substantial benefit—

Justice William J. Brennan: You are letting the recognizance people even a greater benefit that you are the 10% people and also from what you say it probably administratively costs a little more to the recognizance people.

So you can not justify it that way, can you?

Mr. John J. O’toole: The way I justified is over past this stream, the Illinois has never charged people out on the recognizance bond —

Justice William J. Brennan: Historically and whether or not it is a rational classification.

Mr. John J. O’toole: Well, I do not think we can charge them because they are exercising their constitutional right also.

Justice William J. Brennan: Well, much more than their constitutional right, constitution probably only guarantees in the right to not having to – not to have to pay excessive bail, does it not?

Mr. John J. O’toole: Correct.

Justice William J. Brennan: What is this Appendix B in the appellee's brief seems to bear on?

You answered a lot of the questions that have been asked you, but what are D-bonds and what are C-bonds?

Mr. John J. O’toole: That is an official designation.

There are three types of bonds I know are really High bonds of which are personal recognizance, D-Bonds which are the 10% bonds and C-bonds which are bonds when a man has posted the full amount.

In Cook County when we found that where the petty offenses, where the amount of bail is $25 or less, nobody posts a 10% bond.

Justice William J. Brennan: Well, does it at all -- you require a minimum of what, $25 or something?

Mr. John J. O’toole: On parking tickets there is a different type.

But on most cases, it is $25 to a minimum of $5.

We have also found that once you get over $25 that the amount, the percentage is 90%, it will post the 10% and 10% it will post the 100%.

Now, other that, about 10% to post to the 100% bond.

There are Illinois Supreme Court rule which govern certain types of offenses where the Illinois Supreme Court by rule and it is specified in the bond statutes that Supreme Court made specified by rule.

The Supreme Court specifies $500 cash, which means that 10% is not available to them, and that is anomaly and the Illinois Supreme Court has put that in mostly on traffic offenses and I believe it is to prevent practices of setting too high a bond by speed track judges, I believe that, that is the policy and I do not really understand —

Justice William J. Brennan: Those rules are not involved in this case.

Mr. John J. O’toole: No, there was an argument made in the Illinois Supreme Court on the petition for re-hearing that perhaps one of the Illinois Supreme Court rules would govern at 100% should have been posted rather than the 10%.

That petition for hearing was denied by the County.

Justice William J. Brennan: And that is washed out the case here.

Mr. John J. O’toole: I believed it to be Your Honor.

The Supreme has passed and said the 10% would properly apply here.

Justice Thurgood Marshall: (Inaudible) that the original one that of the three systems of bail in Illinois, there is only one that get 1% charges.

Rebuttal of James A. Rooney

Mr. James A. Rooney: Only one.

Justice Thurgood Marshall: And all three of them need court officials to do the paperwork, all three of them.

Mr. James A. Rooney: Correct.

Justice Thurgood Marshall: And the only basis of this 1% on this would be because of this special new thing?

Mr. James A. Rooney: No, because we are giving them a special benefit.

We are releasing them at 10% of the amount of the reasonable bond.

Justice Thurgood Marshall: But you could release him for nothing, on recognizance.

Mr. James A. Rooney: Yes, we could.

That is not utilized.

Justice Thurgood Marshall: That is what I think is the petitioner’s argument.

Mr. James A. Rooney: Well, I did not perhaps understand it that way.

Justice Thurgood Marshall: I think the difference is that you take position that once you reach to the point where he is not eligible (Inaudible).

He is in a different category and if he gets his 10%, he has to pay for that because he does not have to put the money, that is your position, is it?

Mr. James A. Rooney: Correct and as I try to explain, I believe that is because judges made a determination before we get to that point that he is substantially different.

Unknown Speaker: But when one is released on his own recognizance, does he execute, I know that you said, I-bond, does he execute a bond, a personal bond in the amount 15,000, 10,000, 25,000?

Mr. James A. Rooney: Correct.

Unknown Speaker: Whenever the judge fixes?

But the only difference is that he executes a personal bond without surety, really, is it?

Mr. James A. Rooney: Correct, absolutely right.

Unknown Speaker: He does not sign the bond that agreed to show up or not?

Mr. James A. Rooney: Yes, he just signs a bond promising that he will show up.

Unknown Speaker: But if he does not, he can forfeit 15,000 --

Mr. James A. Rooney: He forfeits the face amount of the bond.

Unknown Speaker: I am not sure (Inaudible)

Mr. James A. Rooney: Well, it depends on the type of the offense.

The judge sets what the amount of bond would be except for the fact the he feels this accused person is a type of person who is most likely to show up for trial and therefore the state will not have to go to additional expense of going out and looking for him and bringing him to trial.

One of the problems with the bail bond system was that the bail bonds, it was not the man that returned to defendant if the bail was jumped.

That type of value is very speculative, most of them were picked up by police officials and brought back to the court, that is where the bail bonds did not go through really any expense that way.

Unknown Speaker: Your personal recognizance is that typical kind of --

Mr. James A. Rooney: I think it is universal --

Unknown Speaker: So the bond that is signed by the individual with no assurance.

Mr. James A. Rooney: Yes, I think, it is universal throughout the court system in the United States.

Unknown Speaker: Let me ask you the same question I asked your opponent.

If you lose this case, do you anticipate to return to the old bondsman system?

Mr. James A. Rooney: I do not know how else the State of Illinois can function still having a 100% system.

If you take the 10% fee, you will have 10% system with no fee and it will be mandatory as of right now.

So what that will mean, is that after a judge finds that a reasonable amount of bond will be 100%, it will be allowed down on 10% and we can go in abrogation of the judges discretion in setting by.

Unknown Speaker: So really (Inaudible)-- let us say that the judge set bail on every case to some people and you have to put up the 100%, a lot of people (Inaudible)

Mr. James A. Rooney: Correct.

Unknown Speaker: (voice overlap) puts up 10% or 100 —

Mr. James A. Rooney: Oh, yes, and the 100% and 10% it is up to the defendant.

Unknown Speaker: Entirely.

Mr. James A. Rooney: But on the recognizance —

Unknown Speaker: The law permitted, the law permitted these three ways of identifying the bail law procedures.

Have you ever released anyone there, just (Inaudible)

Mr. James A. Rooney: That is the recognizance spot of what we in Illinois call the I-bond.

Unknown Speaker: Well what (Inaudible)

Mr. James A. Rooney: Oh, correct, I think the state has a —

Unknown Speaker: That is why that any forms of bond, in my state we have on personal recognizance Judge (Inaudible) decided a personal bond of $15,000 if we did not show up and the state would have to reduce that bond and judgement against your property or the judge could say that at many times, I will just accept your promise that you will show up, do you not have that?

Mr. James A. Rooney: It is not utilized that way Mr. Justice.

In closing, I would like to turn to the third point that the plaintiffs raised in their brief and that is that no bond cost can be imposed on any person who has found innocent and they rely on the Giaccio case and in the Giaccio case involved court cost where the jury was given the option really of punishing a person after they found him innocent.

The Illinois Supreme Court has termed this an administrative cost, but I do not think the inquiry has to stop there.

I think that, as was suggested earlier, there are some parts of our society that do not function perfectly and part of it is our criminal justice system and of course there are going to be mistakes where an innocent person, we do find innocent people and those people unfortunately, will have to bear this type of cost and there are might be a type of remedy if the state has absolutely no justification for picking them up just like the – in element of damages in the civil rights actions or in a false imprisonment action, but it is not the type of situation that should be brought up here really on a kind of class action.

And I would like to point out that there was no allegation in this that anybody was indigent, there is no motion for reduction of bond, there is no motion for Release on Recognizance and if the case is here and the plaintiff in this case is really sewing on the head of indigent people, we do not know really anything about him.

There is a stipulation of facts, but the -- it is very sketchy.

It is from down state Illinois, our office did not participate in it, but one of the real problems is that John Schilb might have been one of these people who made an intelligent decision.

He had the money, but he added up in the interest rates and came out and says, I will put down the 10% and I think that if the bond was excessive in this case, it should have been tested the general way by habeas corpus on motion for reduction of bond.

Justice William J. Brennan: Now will you Just summarize for me, what are the state interests that you assert justify this discrimination among the classes?

Mr. James A. Rooney: I think the fact that the state of Illinois is granting to these people a substantial benefit which they did not have before and also pursuing a valid purpose in eliminating the bondsman from the court system justify as the imposition of this type of cost and this quest.

They were the ones who had to go to the bondsmen before and they are the ones who had to pay the 10% before, we are letting them out on a cost of 1%.

We think that is sufficient to designate that class as the one to bear the cost.

Justice William J. Brennan: This case came out of St. Clair County, is it not?

Is it not this Belleville, (Inaudible)St. Clair?

Mr. James A. Rooney: Yes.

Justice William J. Brennan: But, how do you get in as the county states attorney?

Mr. James A. Rooney: It is an interesting situation, we have the same type of class action pending in Cook County and we felt that we had a quite an interest in this case because we handle much of the criminal litigation in Cook County and there is a possibility of loss right now of $2,500,000 to Cook County through a refund of this type of a payment.

Justice William J. Brennan: (Inaudible) St. Clair County is not abidingly interested in deal?

Mr. James A. Rooney: St. Clair County I believe was going to be here, but they called me and said they did not – they are abidingly interested.

They asked our office to handle the deal fr them.

Rebuttal of John J. O’toole

Mr. John J. O’toole: Mr. Chief Justice and may it please the court.

I just wish to make a few observations.

Initially, the issue here is the constitutionality of that cost retention provision.

This system will go on regardless of whether this discriminatory imposition of a burden on one segment is gone away with their net or if I can answer, I believe it was Mr. Justice Marshall, where did the 1% figure come from?

It came from the fact that they got 1% on forfeitures from bondsmen.

Today, they equate very close to that 1% on forfeitures and bail jumping where people deposit 10% and they deposit the full amount.

They are getting the same amount of money that they got before, the only thing they are doing today is they are charging one segment across where they never charged them -- across anybody across before.

That is basically what it is.

Justice Thurgood Marshall: I am confused, they would have paid 10% to the bond, like these people right here and there would not be any like that?

Mr. John J. O’toole: That is right Your Honor.

Justice Thurgood Marshall: So, Illinois says, if you pay us the 10%, we will let you out on the same condition and when the case is over we will give you 9% back (voice overlap) I mean, how do you lose on that?

Mr. John J. O’toole: Well, basically.

Justice Thurgood Marshall: How does this man lose?

Mr. John J. O’toole: That man did not lose at all, I agree with you that they had improved the system, there is no doubt about it, but the difference between the clerk and the bondsman is, the clerk is not having an undertaking to pay the full amount if the guy jumps bail.

Unknown Speaker: But the court would not have undertaken the pay himself, obviously.

Mr. John J. O’toole: Or it all go onto the country treasury, but the county is (voice overlap)

Unknown Speaker: Well, I mean the bondsmen are not plotting this as the case?

Mr. John J. O’toole: No, they are not, definitely not.

We do not want that.

Unknown Speaker: Well, I am worried about these people. (voice overlap) these people who instead of paying 10% have paid 9%.

Mr. John J. O’toole: That is right Your Honor.

Unknown Speaker: I mean, you pay 1%, and they are complaining?

Mr. John J. O’toole: They do not think that they should pay anything because nobody is paying for it.

Unknown Speaker: Well, I would agree that —

Mr. John J. O’toole: (Inaudible)

Unknown Speaker: Yes, Your Honor.

But, in relation to Mr. Justice Brennan’s question, there are several jurisdictions, there are three jurisdictions at present which have a 10% deposit statute such as Illinois too charge no one any cost that has —

Mr. John J. O’toole: What other states?

Unknown Speaker: Iowa and, I think it is Alaska, Your Honor.

Wisconsin last July, July of 1969 put in 10% deposit statute.

They charged the guilty who deposited 10%, 1% and charged the innocent nothing.

And in the state of New York, they have across the board 2%, I believe --

Mr. John J. O’toole: How they were released?

Unknown Speaker: No matter how you are released, but they do not have 10% system such as ours, it is not a true 10% deposit system.

Mr. John J. O’toole: Does the District of Columbis not leverage 10% or something like that?

Unknown Speaker: Well, I think that is under the federal act, your honor.

Now, right after the state of Illinois enacted our 10%, the federal government Congress — 88th Congress, there were three bills introduced in the Senate.

One of the bills was the identical provision that we have here in Illinois and that is 10% in 10% charge.

Those bills died in the committee in the 88th Congress and were resubmitted into the 89th Congress and between the two sessions of Congress, the Congress pulled out the 10% charge, so now there is no charge in the federal system which permits a judge to release a person on less than full bond in his discretion.

Now our system is contra into the federal system and those are the only jurisdictions I know that have any provision for release on less than full.

In relation to the statistics, now we just wish to make one observation in as to all people would make a deposit, their conclusion, if you return to their statistics, you would note one thing that have have not broken down.

Initially, all people who have a bond of $25 or less, this is on minor offenses, must post the full amount, there is not any 10% deposit on $25 or less, so that throws the statistics out a little bit.

The second thing is that on taking a look at their breakdown, in District Number 1 which is the City of Chicago, where 1 out of 47 puts up the full amount of bond.

If you take a look at District Number 3, which is a relatively affluent suburban area, 2 out of every 5 deposit the full amount, and what benefit do they get and why do they do it?

Well one, they have the means to do it, and just as the individual who gets out on his own recognizance and incidentally, Mr. Justice Brennan, there was no amount mentioned in our rare occasion, but then only about 2% of people.

Bail application in the state of Illinois is not at its best, well not in the record, it is just a matter of information that there is a schedule in Cook County for bail, $10,000 for this, Narcotics arrest, take the advice of the narcotics officer, these are the directions that go to the judges.

About 2% are released on their own own recognizance.

Now what benefit or why would somebody who has to full post the full amount, because he has the ability to post treasury bills, stocks, bonds, any type of security representing an interest.

He can pledge for his freedom and leave that asset in tact and earn interest while we are imposing a cost here, we are allowing this person to continue making money on his investment.

And here he sees about it, the person who was released are allowed to see the benefit, the 10% person receives the benefit.

Well, why should a system insist that one segment of those who are released on bond support that entire system and when there is not even a need for it because the same bond forfeitures that existed prior to the Act exist today.

This is actually a fiscal policy of increasing the revenues and that is all it is.

Chief Justice Warren E. Burger: Thank you Mr. O’Toole.

Thank you.

The case is submitted.