*1 Illinois Official Reports
Appellate Court
People v. Lovelace
,
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS T. LOVELACE, Defendant-Appellant. Caption Fourth District District & No.
Docket No. 4-17-0401 Filed May 22, 2018
Decision Under Appeal from the Circuit Court of Adams County, No. 14-CF-488; the Hon. Robert G. Hardwick, Judge, presiding. Review Affirmed. Judgment
Counsel on Jon Loevy, Tara Thompson, and Debra Loevy, of The Exoneration Project, of Chicago, for appellant. Appeal
Patrick Delfino, David J. Robinson, and Luke McNeill, of State’s Attorneys Appellate Prosecutor’s Office, of Springfield, for the People. JUSTICE STEIGMANN delivered the judgment of the court, with
Panel
opinion.
Presiding Justice Harris and Justice DeArmond concurred in the judgment and opinion.
OPINION In August 2014, an Adams County grand jury indicted defendant, Curtis T. Lovelace, for first degree murder (720 ILCS 5/9-1(a)(2) (West 2012)). Defendant’s first trial ended in a mistrial because the jury could not reach a unanimous verdict.
Subsequently, the trial court reduced defendant’s bail to $3.5 million. In June 2016, various third parties posted a $350,000 cash bond on defendant’s behalf to secure his release pending trial. The trial court ordered electronic monitoring of defendant as a condition of his release.
In September 2016, the trial court granted defendant’s motion to change venue. In March 2017, a Sangamon County jury found defendant not guilty. The trial court entered an order releasing defendant from all conditions of his bond but ordered the circuit clerk to retain the bond “pending an assessment of applicable costs.”
Later in March 2017, defendant filed a motion for return of bond in which he requested that the entire bond should be returned less the actual costs of electronic monitoring. In April 2017, the trial court conducted a hearing on the amount of the bond that should be refunded. Ultimately, the court ordered the circuit clerk to retain $35,000, which was 10% of the posted cash bond and which the court noted was provided by statute (725 ILCS 5/110-7(f) (West 2016)), and $5433.75 in electronic monitoring costs.
Defendant appeals, raising nonconstitutional and constitutional challenges. For his
nonconstitutional claims, defendant argues the trial court (1) failed to exercise its discretion
under the statute or (2) abused its discretion by considering inappropriate factors when it
ordered the retention of 10% of the posted bond. As to his constitutional claims, defendant
argues that the 10% bail bond statute (
id.
) (1) is facially unconstitutional; (2) violates due
process because it did not provide for a hearing on defendant’s ability to pay; (3) is
unconstitutional as applied to him, based upon the Supreme Court’s holding in
Nelson v.
Colorado
,
I. BACKGROUND A. The State’s Charges and the First Trial In August 2014, an Adams County grand jury indicted defendant on the charge of first degree murder (720 ILCS 5/9-1(a)(2) (West 2012)). The trial court set defendant’s bail at $5 million. Defendant was unable to post bond and remained in custody through his first trial, which occurred in February 2016. The jury was unable to reach a unanimous verdict, and the court declared a mistrial.
B. Defendant’s Motion to Reduce Bail Later in March 2016, defendant filed a motion to reduce bail, stating that he had exhausted all of his assets in defending the first trial. His motion added that “[i]f the Court were to set a more reasonable bond, there are friends who would post security *** sufficient to ensure his *3 release from custody and appearance at trial.” In May 2016, the trial court denied his request to reduce bail.
In May 2016, defendant filed a “Renewed and Unopposed Motion to Reduce Bail,” explaining the State did not oppose a reduction in bond to $3.5 million. Defendant’s motion stated “committed friends and supporters *** are willing and able to post the cash needed for а $3.5 million bond.”
In June 2016, the trial court granted defendant’s motion and reduced bail to $3.5 million. As a condition of release, the court ordered defendant to be confined to his home, wear an electronic monitoring device, and pay specified fees associated with electronic monitoring, with payment to come from the bond.
The appearance bond in the record indicates defendant paid $350,000 as 10% bond on June 6, 2016. However, the parties agree—and, as explained below, the trial court found—the cash bond was in fact paid by third parties.
C. Change of Venue and the Second Trial In September 2016, defendant filed a motion for change of venue. Defendant argued extensive media coverage and his status in the community had resulted in a tainted jury pool. The trial court granted the motion and transferred the case to Sangamon County for trial.
In March 2017, after a two-week trial, the jury found defendant not guilty of first dеgree murder. The trial court entered an order releasing defendant from all conditions of bond but ordered the bond “to be retained by the Adams County Circuit Clerk pending assessment of applicable costs.”
D. Proceedings Related to the Return of Bond 1. The Trial Court’s Proposed Order Approximately two weeks after the acquittal, the court, on its own initiative, entered an order providing as follows:
“On June 7[,] 2016, the Defendant had $350,000.00 cash bond posted for him by others, all without a bond assignment. The Defendant has been found not guilty in Sangamon County after a jury trial with that verdict coming on March 10, 2017. The bond, after applicable fees, needs to be returned. The Court proposes that the bond held by the Adams County Circuit Clerk be returned as in the proposed Order to Refund Bonds attached as Ex. “A.”
A hearing on this matter is scheduled for: April 19, 2017[,] at 3:00 pm at the Cass County Courthouse, Virginia, IL.
If any interested party objects to the return of the bond as proposed in the attached Ex ‘A’ they should file a written objection with the Adams County Circuit Clerk with a copy to Judge Bob Hardwick ***.”
A copy of the order was sent to the State, defendant, the law firm of Beckett & Webber, and Rich Herr.
The proposed order noted the defendant had bond posted for him and “Beckett & Webber attorneys[—]Urbana, IL” paid $300,000 and Rich Herr paid $50,000. The proposed order further stated “[t]he only applicable fees to be assessed against those sums are the 10% bond *4 fees plus the electronic monitoring fees of $5433.75 (which have been paid).” In the order, the court proposed the “fees/expenses” would be shared pro rata . Accordingly, the order allocated $30,000 of the $35,000 bail bond fee to Beckett & Webber and $5000 to Rich Herr. In addition, the order calculated Beckett & Webber was responsible for six-sevenths of the electronic monitoring fees totaling $4657.50, while Rich Herr bore the remaining $776.25. The proposed order concluded by directing the clerk to “refund the balance of the bonds,” as follows: “Beckett & Weber [ sic ] $265,342.50[,] Rich Herr $44,223.75.” ¶ 21 2. Defendant’s Motion Defendant filed a motion in March 2017 for return of the cash bond. In his motion,
defendant calculated the costs of hook-up and monitoring—previously ordered to be paid out of his bond—to be $5696.25. As such, defendant requested the court order $344,303.75 returned to the individuals who posted the bond on defendant’s behalf. His motion did not contain any substantive arguments. 3. The Arguments of the Parties In April 2017, the trial court conducted a hearing regarding the return of the posted cash
bond. The State argued that section 110-7 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-7 (West 2016)) made clear that bond not only secures a defendant’s presence at trial but also provides a fund from which costs can be paid at the court’s discretion. The State acknowledged that the cases interpreting section 110-7(f) have held that the trial court could return more than the statutory amount of 90% of the posted bond. However, the State argued the proper bond fee in this case was the 10% provided by statute, in addition to the electronic monitoring costs. Defendant argued the court should return the full amount of the bond and order the circuit
clerk to retain only the actual electronic monitoring costs. Defendant pointed out that his prosecution had been “financially devastating” and “depleted his life’s savings.” Further, he asserted that, because the jury had found him not guilty, imposing a charge on him created a “constitutional problem.” According to defendant, the court’s retaining 10% of the bond would be “punitive” and “arbitrary” because it was being imposed upon an innocent person. Nonetheless, defendant admitted the court should charge some fee but argued the fee should only be the $5433.75 in actual costs and not $35,000 as provided by statute. 4. The Trial Court’s Ruling on Return of Bond The trial court first ordered the $5433.75 in electronic monitoring costs to be paid from the
posted bond. The court then examined whether the circuit clerk should retain a 10% bail bond fee, concluded that the circuit clerk should, and explained, as follows:
“The statute is pretty clear, the purpose is to insure compliance with conditions of bond, but also to help defray expenses and those are in the case decisions that have come down. The court does have authority to order less than ten percent of the bond fee to be held and as [the State] said, there is not a lot of cases out there. There is people— there are cases that have talked about ten percent whether it can be withheld or not, but nothing that really addresses this in any kind of detail. Actually, I thought there would be more cases [that] I could find. And I don’t know if you looked, [defense *5 counsel], but if you had found a lot of cases, I know you well enough you would have been talking to me about them. I have been in this business for close to forty years. I don’t know that I have ever seen less than 10 percent in bond fee withheld. That’s one of the ways the [circuit] clerks basically fund their office. It wasn’t the [circuit] [c]lerk’s office that indicted Mr. Lovelace, it was the grand jury. We have had four weeks of trial, two weeks in Adams County, two weeks in Sangamon County. We have had the additional expenses of Sangamon County on a change of venue which was on the defendant’s motion. Turned out to be a good expense since you got a not guilty out of that, but in any event, I am going to order that the bond, the $350,000 be—I am basically going to order that the proposed order that I sent out last month that I am going to sign that. In other words, $5,433.75 is going to be withheld for electronic monitoring expenses and there will be a 10 percent bond fee of $35,000.” Defendant appeals, raising nonconstitutional and constitutional challenges. For his nonconstitutional claims, Defendant argues the trial court (1) failed to exercise its discretion under the statute or (2) abused its discretion by considering inappropriate factors when it ordеred the retention of 10% of the posted bond. As to his constitutional claims, defendant argues that the 10% bail bond statute (725 ILCS 5/110-7(f) (West 2016)) (1) is facially unconstitutional; (2) violates due process because it did not provide for a hearing on defendant’s ability to pay; (3) is unconstitutional as applied to him, based upon the Supreme Court’s holding in Nelson , 581 U.S. ___, 137 S. Ct. 1249, because he was acquitted; (4) violates the equal protection clause of the federal constitution and the uniformity clause of the Illinois Constitution; and (5) is an excessive fine in violation of the eighth amendment of the United States Constitution and the Illinois Constitution’s proportionate penalty provision. We disagree with all of these contentions and affirm. II. ANALYSIS Defendant’s arguments on appeal fall into two categories: (1) constitutional challenges to
the bail bond statute and (2) nonconstitutional challenges. Consistent with directions from the
Illinois Supreme Court regarding how lower courts should handle casеs in which both
constitutional and nonconstitutional claims are raised, we will first address defendant’s
nonconstitutional claims. See
People v. Chairez
,
fee. He contends the court abdicated its discretion because it simply ruled the way it always had for the past 40 years. Additionally, defendant asserts the court refused to consider “the only relevant factor”—defendant’s ability to pay—and instead considered impermissible ones, such as defendant’s seeking a change in venue and maintaining his innocenсe. Last, defendant claims the trial court abused its discretion by ordering the clerk to retain the 10% fee in addition to the $5433.75 of actual expenses.
¶ 33 Section 110-7(f) “grants a trial court the discretionary authority to return more than 90% of
a bail deposit under appropriate circumstances.”
People v. Fox
,
amount less than 10% of the posted bond be retained as costs. The court also properly
understood the purpose of the bail bond fee when it stated it was for the purpose of defraying
the costs of administration. We agree with the State that the court’s statement, that it “ha[d]
been in this business for close to forty years” and “[didn’t] know that [it] ha[d] ever seen less
than 10 percent in bond fee withheld,” was merely a personal observation that did not affect its
exercise of discretion. See
People v. Steppan
,
proceedings and change in venue. The court clearly believed having two trials in two different counties increased the costs of administering the bail bond system, thereby justifying retention of the 10% amount set by statute. Although we do not necessarily concur with the trial court’s reasoning (no evidence was presented at the hearing or on appeal as to what the actual costs of administration of the bail bond system are or what faсtors impact that administration), the court’s ruling was not, as defendant suggests, a penalty for defendant’s exercising his right to change venue and his acquittal. We conclude the trial court did not act arbitrarily. We are especially disinclined to find an abuse of discretion in this situation in which the trial court made clear it knew it had discretion and attempted to set forth its reasoning for how it exercised that discretion. We encourage trial courts to thoroughly set forth the bases for their rulings because their doing so is a great assistance to the reviewing courts. Finally, defendant forfeited any argument that the trial court abused its discretion by
ordering the circuit clerk to retain the 10% bail bond fee in addition to the actual costs of
electronic monitoring. Defendant agreed with the court that electronic monitoring costs should
be paid out of the bond, as the court had previously ordered. Defendant never argued the
electroniс monitoring costs should be deducted from the 10% bail bond fee or that the trial
court was limited in assessing all costs only up to 10% of the posted bail bond. Therefore, these
arguments are forfeited. See
People v. Pendleton
,
arguments that the bail bond statute is unconstitutional. Regarding each of his constitutional
claims, defendant first argues the statute is unconstitutional on its face and then argues in the
alternative that the statute is unconstitutional as applied to him. Because we find the bail bond
statute constitutional as applied to defendant, his facial challenges necessarily fail. See
In re
M.A.
,
(West 2016). Specifically, defendant challenges subsection (f), which states, in relevant part, the following:
“When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause[,] the clerk of the court shall return to the accused or to the defendant’s designee by an assignment executed at the time the bail amount is deposited, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited. However, in no event shall the amount retained by the clerk as bail bond costs be less than $5. Notwithstanding the foregoing, in counties with a population of 3,000,000 or more, in no event shall the amount retained by the clerk as bail bond costs exceed $100.” Id. § 110-7(f). In 1969, the legislature amended section 110-7(f) by adding the phrase “unless the court
orders otherwise.” Pub. Act 76-1195, § 1 (eff. Sept. 4, 1969). In 2015, the legislature amended section 110-7(f) to include the final sentence quoted above. Pub. Act 99-412, § 5 (еff. Jan. 1, 2016) (amending 725 ILCS 5/110-7(f)). With these exceptions, the statute is unchanged from its original form as enacted in 1963. 2. Defendant’s Ability to Pay Defendant first argues the bail bond statute is unconstitutional as applied to him because
the trial court did not hold a hearing or consider his inability to pay the bail bond fee.
According to defendant, the Illinois Supreme Court’s holding in
People v. Cook
,
110-7(g), which provided, “ ‘Whenever a defendant who has been admitted to bail utilizes the
services of a public defender or other appointed counsel,’ ” the bond may be used to reimburse
the county for the legal services.
Cook
,
defendants. When posting a 10% bail bond, the bond form must “include a written notice to
such person who has provided the defendant with the money for the posting of bail indicating
that bail may be used to pay costs.” 725 ILCS 5/110-7(a) (West 2016). Section 110-7(f)
exрlicitly provides the clerk shall retain a 10% bail bond fee “unless the court orders
otherwise.” § 110-7(f). Courts have held this provides the trial court with discretion to
retain less than 10% as provided by statute.
Fox
,
opportunity. In this case, defendant successfully petitioned the trial court to lower his bail based on his indigence and his representations that third parties had the funds to post bond. After the jury returned a not guilty verdict, the court provided notice of a hearing on the issue of the amount of the bond to be returned and invited written submissions from any interested person. Defendant submitted a motion for return of the bail bond but did not raise any of the arguments he now raises in this appeal. At the hearing, defendant was present and had the opportunity to present evidence. To the extent defendant claims he was denied the opportunity to present evidence, he failed to request an evidentiary hearing. Moreover, defendant did argue that the case had been “financially devastating” and “depleted his life savings.” Accordingly, defendant had the opportunity to and did raise the issue of his ability to pay. Accordingly, he was not denied due process. 3. Retention of the Bond Fee Despite Acquittal Defendant next argues section 110-7(f) is unconstitutional as applied to him because he
was acquitted. In essence, defendant asserts the bail bond fee amounts to a punishment on an
acquitted person. The State counters that the United States Supreme Court rejected defendant’s
arguments in
Schilb v. Kuebel
,
the Supreme Court of the United States. In
Schilb v. Kuebel
,
voluntarily choose to use the 10% system “constitute[d] a separate class under the legislative plan and purpose as already indicated.” Id. at 548. The court stated that “we know of no law or constitutional provision which would preclude [criminal defendants] being required to pay a reasonable amount for the privilege extended to those who elect to come into this class. The requirement of a fee to help defray the cost of administrative services in the courts is a traditional and basic concept recognized as valid by this court.” Id. The court further noted the “bond costs *** are chargeable regardless of what subsequently occurs in the prosecution of the case and regardless of the guilt or innocence of the accused.” Id. at 551-52. In reaching this conclusion, the court determined the bail bond fee was not a cost of prosecution and conceded court costs could not be assessed against an acquitted defendant. Id. at 552. However, that concession “has no bearing whatever on bond costs and the retention of a percentage of such costs is not tantamount to the assessment of court costs against a discharged defendant.” Id. Accordingly, the fee charged in section 110-7(f) was supported by a rational basis and did not violate equal protection or due process. Id. Subsequently, the United States Supreme Court granted certiorari and affirmed. ,
404 U.S. 357 ( Schilb II ). The plaintiffs made the same arguments to that Court that (1) disparate treatment depended on the method of securing release and (2) the fee constituted a penalty on an acquitted person. at 365-66. The Court noted the statute “smacks of administrative detail and of procedure and is hardly to be classified as a ‘fundamental’ right or as based upon any suspect criterion” and, thus, any rational basis for the law would support it. Id. at 365. The Court examined the legislative history of the bail bond scheme and noted the purpose of the bail bond fee was to offset the costs of administering the bail bond system. at 360-68. The Court explained that, because “with a recognizance, there is nothing the State holds for safekeeping, with resulting responsibility and additional paperwork,” there is a *10 rational basis for not charging those defendants a fee. Id. at 367. “Further, the State’s protection against the expenses that inevitably are incurred when bail is jumped is greater when 100% cash or securities or real estate is deposited or obligated than when only 10% of the bail amount is advanced.” Id. Thus, the Court concluded that the statute had a rational relationship to the State’s legitimate interest in defraying the expenses of administering the bail bond system as a whole. Id. at 367-68, 370-72. Additionally, the Supreme Court explained that the bail bond fee statute is not “a vehicle
for the imposition of costs of prosecution.” Id. at 370. Instead, the “bail bond costs” “is what that description implies, namely, an administrative cost imposed upon all those, guilty and innocent alike, who seek the benefit of § 110-7.” Id. at 370-71. The Court noted its “conclusion is supported by the presence of the long-established Illinois rule against the imposition of costs of prosecution upon an acquittal or discharged criminal defendant, Wells v. McCullock , 13 Ill. 606 (1852), and by the Illinois court’s own determination [in Schilb I ] that the charge under § 110-7(f) is an administrative fee and not a cost of prosecution imposed *** only upon the convicted defendant.” Id. at 371. b. Nelson v. Colorado In Nelson , the Supreme Court considered whether “the State [is] obliged to refund fees,
court costs, and restitution exacted from the defendant upon,
and as a consequence of
, the
conviction” when that conviction is invalidated by a reviewing court and no retrial will occur.
(Emphasis added.)
Nelson
,
rights were violated pursuant to the balancing test in
Mathews v. Eldridge
, 424 U.S. 319
(1976).
Nelson
,
abundantly clear it was addressing the ability of a state to retain funds from a defendant
as a
consequence of a conviction
. Here, the bail bond fee is not rеlated in any way to a defendant’s
being found guilty or not guilty. Instead, the fee is “an administrative cost imposed upon all
those, guilty and innocent alike, who seek the benefit of § 110-7.”
Schilb II
, 404 U.S. at
*11
370-71. The purpose of the bond is to ensure defendant’s appearance, and the bond is returned
“[w]hen the conditions of the bail bond have been performed and the accused has been
discharged from all obligations in the cause.” 725 ILCS 5/110-7(f) (West 2016). By the
statute’s plain language, the fee is retained as long as the defendant complies with its terms and
is discharged when the case is over. In other words, the bail bond fee is not assessed “as a
consequence of [a] conviction” (
Nelson
,
this case. In addition, we note that we are persuaded by the analyses in the decisions of the federal courts in Platt . It is of no moment that the Seventh Circuit did not address Nelson because Nelson has no bearing on the constitutionality of section 110-7(f). We note that similar bail bond fee statutes have been upheld by other courts. See Board of
County Commissioners v. Farris
, 342 N.E.2d 642, 645 (Ind. Ct. App. 1976) (upholding
constitutionality of 10% bail bond fee statute);
Estate of Payne v. Grant County Court
, 508
N.E.2d 1331, 1334-35 (Ind. Ct. App. 1987) (same);
Buckland v. County of Montgomery
, 812
F.2d 146, 148-49 (3d Cir. 1987) (finding statute that allowed each county to collect a
“reasonable” fee for defendants who post 10% bail constitutional when counties retained as
much as 3% of total bail amount);
Broussard v. Parish of Orleans
,
¶ 66 a. Uniformity Clause
¶ 67 Defendant argues the bail bond statute violates the uniformity clause of the Illinois
Constitution because it caps the bail bond fee at $100 for defendants in counties with a population of over 3 million, while all other counties are permitted to retain 10% of the posted bail bond (1% of the total bond amount). Because defendant posted bond in Adams County, he was required to pay a bail bond fee of $35,000, whereas an identical defendant in Cook County would have only paid $100. Defendant contends there is no rational basis for this distinction. We disagree. The uniformity clause of the Illinois Constitution provides that “[i]n any law classifying
the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly.” Ill. Const. 1970, art. IX, § 2. “A plaintiff challenging such a classification has the burden of showing that it is arbitrary or unreasonable; if a state of facts can be reasonably conceived that would sustain it, the classification must be upheld.” Geja’s Cafe v. Metropolitan Pier & Exposition Authority , 153 Ill. 2d 239, 248, 606 N.E.2d 1212, 1216 (1992). The uniformity clause “was intended to encompass the equal protection clause and add to it even more limitations on government.” Id. at 247. Therefore, “[i]f a tax is constitutional under the uniformity clause, it inherently fulfills the requirements of the equal protection clause.” The simplest explanation for the disparate treatment between counties with a population of
over 3 million and those without is that the legislature believed the bail bond system could be adequately funded in much larger counties by other sources. We will take judicial notice that Cook County is the only county in this state that has a population of over 3 million, and it is certainly reasonable to assume that Cook County has more sources of general revenue that can be used to administer the bail bond system. Moreover, the legislature could have reasonably believed that a $100 fee is sufficient to fund the bail bond system in larger counties because, presumably, many morе people post bail in those counties as opposed to smaller ones. Whatever the reason, defendant has failed to meet his burden of demonstrating the classification is unreasonable. Because we find defendant has failed under the uniformity clause, his claim necessarily
fails under the equal protection clause. Although we do not need to, we will address
defendant’s other equal protection claims because they rest on a different set of classifications.
b. Equal Protection Defendant argues the reasoning in
People v. Cook
with regard to former section 110-7(g)
applies with equal force to section 110-7(f). He contends the court in
Cook
found that section
110-7(g) imposed unequal treatment because the statute did not subject “indigents who have
been released on their own recognizance or who have been unable or unwilling to post bail” to
the same potential for reimbursement as those who had posted bоnd.
Cook
,
More importantly, however, defendant’s arguments were directly addressed and thoroughly rejected by the Illinois Supreme Court and United States Supreme Court in the cases. *13 We adopt the previous analysis of the Schilb cases as additional reasoning in support of our conclusion that section 110-7(f) does not violate equal protection. Supra ¶¶ 52-55. As we explained earlier, Cook and its progeny do not apply to this case. Defendant fails to provide any other authority to suggest that either the Illinois Supreme Court or the United States Supreme Court would reach a different result, much less any authority which would call into question the reasoning or holdings of the Schilb cases. Indeed, other courts that have considered similar bail bond fee statutes since the Supreme Court’s ruling in Schilb have upheld them. See supra ¶ 63. Most recently, the Seventh Circuit reviewed section 110-7(f) and found it passes
constitutional muster. In
Platt
, in addressing the plaintiffs’ equal protection argument, the
court noted “there is no classification to challenge; everyone within the 10% bail bond system
is treated exactly the same.”
Platt
,
legitimate government interests.
Id.
at 853. “First, the Fee incentivizes criminal defendants to
avail themselves of the full deposit bail bond system. Under the 10% system, the State bears
90% of the risk that a criminal defendant might jump bail. The government maintains a
legitimate interest in reducing its exposure to this liability.”
Id.
Additionally, the flat
percentage fee is simple and easy to administer.
Id.
Finally, the fee “defrays the costs of
administering the bail bond system: both the administrative costs as well as the costs of those
who jump bail.” By recouping some of its costs, the State is able to “ensure the stability of
an affordable bond service run by the courts rather than a for-profit entity.” As we earlier noted, we are persuaded by the analysis in
Platt
and adopt its reasoning. The
bail bond statute does not distinguish between any class of defendants. Instead, all defendants
who opt to post 10% bond must pay the same percentage fee. Further, any difference in
treatment between defendants who choose to post a percentage of their bail, as opposed to
posting thе full amount or being released on recognizance, is rationally related to the legitimate
government interest in defraying the costs of administering the bail bond system.
Schilb II
, 404
U.S. at 363 n.8;
Platt
,
applied to him because it imposes a penalty on an acquitted person in violation of the eighth amendment’s excessive fines clause, as well as the excessive penalties and proportionate penalties clauses of the Illinois Constitution. The State responds that the Supreme Court in found the bail bond statute imposes a fee, rather than a fine, and therefore the eighth amendment and proportionate penalty clauses do not apply. Defendant counters that “decades[’] worth of nuanced Illinois court analysis on the distinction between fines and fees” mandates a diffеrent result. We disagree.
¶ 80 Although the Schilb cases were decided before many of the cases relied upon by defendant
in his brief, the Schilb holdings are no less binding on this court. No subsequent case has called into question the holdings or reasoning of the Schilb cases, and the text of the statute is unchanged. Accordingly, we hold the bail bond fee in section 110-7(f) is (1) an administrative fee and (2) not a penalty; accordingly, the eighth amendment and proportionate penalties clause do not apply. Though we need not address defendant’s claims further, we do so to make clear the bail
bond fee in section 110-7(f) is exactly that, a fee, and the cases are in line with Illinois’s fines and fees jurisprudence. a. Distinguishing Between a Fine and a Fee “A fee is defined as a charge that seeks to recoup expenses incurred by the state, or to
compensate the state for some expenditure incurred in prosecuting the defendant. [Citation.] A
fine, however, is punitive in nature and is a pecuniary punishment imposed as part of a
sentence on a person convicted of a criminal offense.” (Internal quotation marks omitted.)
People v. Graves
,
costs of administering the bail bond system.
Schilb II
,
Procedure of 1963 (725 ILCS 5/113-3.1 (West 2016)). Much like the bail bond statute, section
113-3.1 provides the state with a method to recoup costs associated with providing a service to
defendants. See
People v. Love
, 177 Ill. 2d 550, 560-63, 687 N.E.2d 32, 37-38 (1997)
(discussing
Cook
and characterizing charges under section 113-3.1 as “reimbursement for
services”). Additionally, defendants are not required to avail themselves of the bеnefits of
court-appointed counsel; instead, that section applies when defendants voluntarily seek
appointed counsel. Further, trial courts have discretion to determine if assessing fees for
court-appointed counsel is appropriate and, if so, the amount. See
People v. Ames
, 2012 IL
App (4th) 110513, ¶¶ 53-55, 65,
Indeed, this court has upheld the application of section 113-3.1 to acquitted defendants. In
People v. Kelleher
, defendant was found not guilty after a bench trial, but the trial court
ordered defendant to pay $440 for court-appointed counsel’s services, with payment coming
from defendant’s cash bond.
People v. Kelleher
,
acquitted as well as convicted defendants. The defendant in Kelleher also contended that the statute failed to provide notice at the time a cash bond was posted that such bond could be used for attorney fees. Id. This court rejected both claims and found section 113-3.1 passed constitutional muster. Id. at 191. We observed that “[a] nonindigent, although acquitted, is ordinarily required, without reimbursement by the State, to pay for counsel. To require an indigent, although acquitted, to reimburse the county, to the extent he is able, for the expense of furnished counsel, tends to put indigents and nonindigents who are acquitted, on the same basis and is consistent with due process.” at 189. This court relied on the United States Supreme Court’s reasoning in to conclude that, like the 10% bail bond fee, the reimbursement of fees for appointed counsel was not a “cost of prosecution” because the State was not required to reimburse defendants who hired private counsel. at 189-90. The court’s reasoning in Kelleher is persuasive. Arguably, an indigent defendant who has been acquitted received even better service from his court-appointed counsel than a defendant who has been convicted. Requiring an acquitted defendant to reimburse the State for appointed counsel is not unconstitutional and does not constitute a fine or penalty. Over the last three decades, case law recognizing the constitutionality of section 113-3.1 has long been settled. If defendant’s arguments that the bail bond fee is actually a fine had merit, then the constitutionality of section 113-3.1 would not be settled law. Defendant also contends the bail bond fee is either a “tax or fine” because it does not
reimburse the State for any specific charge incurred and instead relates to “general revenue.”
See
Crocker v. Finley
,
fee is a “fee” or a “tax.” Because the bail bond fee is not imposed as a punishment or as a result of a conviction, it is not a “fine,” and the eighth amendment and proportionate penalties clause do not apply. III. CONCLUSION For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
award the State its $75 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002 (West 2016). Affirmed.