                                                                                   FILED

                                                                                   May 22, 2018
                                    2018 IL App (4th) 170401                       Carla Bender

                                                                               4th District Appellate

                                         NO. 4-17-0401                               Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                      )   Appeal from
             Plaintiff-Appellee,                           )   Circuit Court of
             v.                                            )   Adams County
 CURTIS T. LOVELACE,                                       )   No. 14CF488
             Defendant-Appellant.                          )
                                                           )   Honorable
                                                           )   Robert G. Hardwick,
                                                           )   Judge Presiding.


               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Presiding Justice Harris and Justice DeArmond concurred in the judgment and
opinion.

                                           OPINION

¶1             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.

¶2             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.

¶3             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.”

¶4             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.

¶5             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, 581 U.S. ___, 137 S. Ct. 1249

(2017), 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.

¶6                                      I. BACKGROUND

¶7                          A. The State’s Charges and the First Trial

¶8             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



                                                -2­
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.

¶9                             B. Defendant’s Motion To Reduce Bail

¶ 10              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 release from custody and appearance at trial.” In May 2016, the trial court denied his request

to reduce bail.

¶ 11              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 a $3.5 million bond.”

¶ 12              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.

¶ 13              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.

¶ 14                          C. Change of Venue and the Second Trial

¶ 15              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



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pool. The trial court granted the motion and transferred the case to Sangamon County for trial.

¶ 16           In March 2017, after a two-week trial, the jury found defendant not guilty of first

degree 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.”

¶ 17                       D. Proceedings Related to the Return of Bond

¶ 18                           1. The Trial Court’s Proposed Order

¶ 19           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.



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¶ 20           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 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

¶ 22           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.

¶ 23                             3. The Arguments of the Parties

¶ 24           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



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argued the proper bond fee in this case was the 10% provided by statute, in addition to the

electronic monitoring costs.

¶ 25           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.

¶ 26                      4. The Trial Court’s Ruling on Return of Bond

¶ 27           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 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



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               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.”

¶ 28           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 (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



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and affirm.

¶ 29                                     II. ANALYSIS

¶ 30           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 cases in

which both constitutional and nonconstitutional claims are raised, we will first address

defendant’s nonconstitutional claims. See People v. Chairez, 2018 IL 121417, ¶ 13 (courts

should “decide constitutional questions only to the extent required by the issues in the case”

(internal quotational marks omitted)); see also In re Dustyn W., 2017 IL App (4th) 170103, ¶ 24,

81 N.E.3d 88 (“Only if we conclude that the trial court did not abuse its discretion by imposing

the probationary condition at issue should we then consider whether this condition violated

respondent’s constitutional rights.”).

¶ 31                     A. The Trial Court Did Not Abuse Its Discretion

¶ 32           Defendant argues the trial court erred by ordering the circuit clerk to retain a 10%

bail bond 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 innocence. 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, 130 Ill. App. 3d

795, 797, 475 N.E.2d 1, 2 (1985). The abuse-of-discretion standard of review is highly



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deferential. People v. Peterson, 2017 IL 120331, ¶ 125. A reviewing court will reverse only

when “the trial court’s decision is arbitrary, fanciful, or unreasonable to the degree that no

reasonable person would agree with it.” (Internal quotation marks omitted.) Id. However, a trial

court errs if it fails to understand it has discretion to act or wholly fails to exercise its discretion.

Fox, 130 Ill. App. 3d at 797; People v. Queen, 56 Ill. 2d 560, 565, 310 N.E.2d 166, 169 (1974).

¶ 34            In reaching its decision, the trial court explicitly acknowledged its authority to

order an 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, 105 Ill. 2d 310, 323, 473 N.E.2d 1300, 1307 (1985) (“The

fact that the sentencing judge added some personal observations before imposing sentence, while

not to be encouraged, is of no consequence.”).

¶ 35            Additionally, the trial court did not act improperly when it considered the length

of the 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 factors 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.

¶ 36            We are especially disinclined to find an abuse of discretion in this situation in



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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.

¶ 37           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

electronic 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, 223 Ill. 2d 458, 475, 861 N.E.2d 999, 1009

(2006).

¶ 38                           B. Defendant’s Constitutional Claims

¶ 39           Because the trial court did not abuse its discretion, we need to address defendant’s

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., 2015 IL 118049, ¶ 49, 43 N.E.3d 86 (“Because the Violent Offender Act does not violate

procedural due process as applied to M.A., it follows that the Act also is not facially

unconstitutional.”). We address each argument in turn.

¶ 40                            1. The Statutory Language at Issue

¶ 41           Defendant challenges the constitutionality of the 10% bail bond statute. 725 ILCS

5/110-7 (West 2016). Specifically, defendant challenges subsection (f), which states, in relevant



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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).

¶ 42           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 (eff.

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.

¶ 43                              2. Defendant’s Ability To Pay

¶ 44           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, 81 Ill. 2d 176,

407 N.E.2d 56 (1980), as well as later cases following Cook, requires a court to hold a hearing to

consider a defendant’s ability to pay before ordering an indigent defendant to reimburse the costs

of his prosecution. Defendant asserts he was found indigent at a prior bail bond hearing and,



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therefore, the court’s failure to hold and the statute’s failure to require a hearing on his ability to

pay violated his procedural due process rights. We disagree.

¶ 45           In Cook, the Illinois Supreme Court examined the constitutionality of former

section 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, 81 Ill. 2d at 180 (quoting Ill. Rev. Stat. 1979,

ch. 38, ¶ 110-7(g)). The court found the statute required only those indigent defendants who

posted bail to pay for legal services while other indigent defendants who received the same

services did not, simply because they were released on personal recognizance or otherwise did

not post bail. Id. at 181. The court concluded there was no rational basis for the distinction

because the posting of bail did not per se mean a defendant had the ability to pay. Id. at 183.

Therefore, the court held that former section 110-7(g) violated equal protection. Id. The court

further held that “[a] summary decision which orders reimbursement without affording a hearing

with opportunity to present evidence and be heard acts to violate an indigent defendant’s right to

procedural due process.” Id. at 186. (We note that section 110-7(g) was repealed and replaced by

section 113-3.1, which was enacted to address the constitutional problems in Cook. See Pub. Act

82-708 (eff. July 1, 1982); Pub. Act 83-336 (eff. Sept. 14, 1983).)

¶ 46           Contrary to defendant’s claim that former section 110-7(g) “is indistinguishable

for constitutionality purposes,” the bail bond statute does not suffer from the problems discussed

in Cook. Most significantly, section 110-7(f) does not distinguish between one class of indigent

defendants and another. In fact, the plain language of the statute makes clear it does not

distinguish between any defendants at all. Instead, all defendants, wealthy or poor, found guilty

or not guilty, receiving appointed counsel or not, pay the same 10% bail bond fee pursuant to



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section 110-7 when they post a bail bond. See Schilb v. Kuebel, 404 U.S. 357, 370-71 (1971).

¶ 47           Moreover, the statute and the bail bond scheme as a whole provide sufficient due

process to 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) explicitly provides the clerk shall retain a 10% bail bond fee “unless the court orders

otherwise.” Id. § 110-7(f). Courts have held this provides the trial court with discretion to retain

less than 10% as provided by statute. Fox, 130 Ill. App. 3d at 797. Further, defendants are

permitted to petition the court to reduce bail at any time. 725 ILCS 5/110-6 (West 2016).

Accordingly, the statute permits defendants to petition the court for return of a different sum

based on their ability to pay. And, as other courts have recognized, ability to pay is but one of the

factors a court may consider in setting the amount of bail in the first instance. Id. § 110-5; Platt

v. Brown, No. 16 C 3898, 2017 WL 1196921, *4 (N.D. Ill. Mar. 31, 2017); see also Payton v.

County of Carroll, 473 F.3d 845, 851-52 (7th Cir. 2007) (holding ability to petition court for

lower bail was one factor which indicated the charging of a bail bond fee did not violate due

process). Therefore, the bail bond statute does not violate equal protection or procedural due

process under Cook, and the trial court was not required to consider defendant’s ability to pay

when deciding how much of defendant’s cash bail bond to refund.

¶ 48           Even assuming due process did require such a hearing, defendant was afforded

that 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.



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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.

¶ 49                     3. Retention of the Bond Fee Despite Acquittal

¶ 50           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, 404 U.S. 357 (1971). However, defendant

claims the United States Supreme Court’s recent holding in Nelson, 581 U.S. ___, 137 S. Ct.

1249, essentially overruled Schilb. We disagree and find Nelson distinguishable.

¶ 51                                   a. The Schilb Cases

¶ 52           Defendant’s argument has been expressly rejected by both the Illinois Supreme

Court and the Supreme Court of the United States. In Schilb v. Kuebel, 46 Ill. 2d 538, 264

N.E.2d 377 (1970) (Schilb I), the plaintiffs argued section 110-7(f) violated the equal protection

and due process clauses of the federal constitution and related provisions of the Illinois

Constitution. Id. at 542. Specifically, the plaintiffs claimed the 10% bail bond fee violated equal

protection because it was only imposed when defendants posted a 10% cash bail under section

110-7(f) but not when they were released on recognizance or when they posted the full amount

of bail in cash or other securities under section 110-8. Id. The plaintiffs further contended the



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bail bond fee constituted an assessment of costs against defendants found not guilty. Id. The

Illinois Supreme Court explained the legislature enacted the bail bond scheme to return control

of the bail bond system to the courts. Id. at 543-44. Previously, professional bail bondsmen

charged defendants a 10% fee and pocketed the full amount regardless of compliance, but the

actual judgments on forfeitures paid by professional bondsmen amounted to only 1% of the

bonds written. Id. at 544. Section 110-7(f) permitted the return of 90% of the bond deposited

upon compliance, thus encouraging compliance. Id. at 546. The 10% fee (1% of the total bail)

was retained as costs of administering the 10% bail bond system. Id. at 544, 548.

¶ 53           The court found that defendants had three methods of securing release and those

who 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.



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¶ 54           Subsequently, the United States Supreme Court granted certiorari and affirmed.

Schilb v. Kuebel, 404 U.S. 357 (1971) (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. Id. 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. Id. 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 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.

¶ 55           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



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§ 110-7(f) is an administrative fee and not a cost of prosecution imposed *** only upon the

convicted defendant.” Id. at 371.

¶ 56                                   b. Nelson v. Colorado

¶ 57           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, 581 U.S. at ___, 137 S. Ct. at 1252. The petitioners in Nelson were

convicted and sentenced to pay costs, fees, and restitution pursuant to various sentencing

statutes. Id. at ___, 137 S. Ct. at 1252-53. On direct appeal, their convictions were vacated. Id. at

___, 137 S. Ct. at 1253. Petitioners sought return of the amounts paid. Id. at ___, 137 S. Ct. at

1253. The only avenue for petitioners to regain the amounts paid was pursuant to a statute

requiring them to prove by clear and convincing evidence they were actually innocent. Id. at ___,

137 S. Ct. at 1254. The Colorado Supreme Court found the statute offered sufficient procedure

and denied petitioners’ claims. Id. at ___, 137 S. Ct. at 1254.

¶ 58           The United States Supreme Court reversed, finding the petitioners’ procedural

due process rights were violated pursuant to the balancing test in Mathews v. Eldridge, 424 U.S.

319 (1976). Nelson, 581 U.S. at ___, 137 S. Ct. at 1255-58. The Court made clear “[t]he sole

legal basis for these assessments was the fact of [petitioners’] convictions. Absent those

convictions, Colorado would have no legal right to exact and retain petitioners’ funds.” Id. at

___, 137 S. Ct. at 1253. It stated “Colorado may not retain funds taken from [petitioners] solely

because of their now-invalidated convictions ***.” (Emphasis added.) Id. at ___, 137 S. Ct. at

1256. The Court concluded: “To comport with due process, a State may not impose anything

more than minimal procedures on the refund of exactions dependent upon a conviction



                                               - 17 ­
subsequently invalidated.” (Emphasis added.) Id. at ___, 137 S. Ct. at 1258.

¶ 59                                       c. Analysis

¶ 60           Nelson is plainly distinguishable and has no bearing on this case. In Nelson, the

Court was 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 related 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

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, 581 U.S. at ___, 137 S. Ct. at 1252), and therefore, the

Supreme Court’s ruling in Nelson did not have any effect upon its holding in Schilb.

¶ 61           Both defendant and the State address the three-factored test for procedural due

process in Mathews. The State urges this court to follow the reasoning of a federal district court

in Platt , 2017 WL 1196921, and the Seventh Circuit’s subsequent affirmation in Platt v. Brown,

872 F.3d 848 (7th Cir. 2017). Defendant correctly points out that federal decisions are merely

persuasive authority and not binding on this court. See Travelers Insurance Co. v. Eljer

Manufacturing, Inc., 197 Ill. 2d 278, 302, 757 N.E.2d 481, 496 (2001). Further, defendant

criticizes the district court’s decision because it was issued before the Supreme Court decided

Nelson. Defendant also criticizes the Seventh Circuit’s decision because it did not refer to Nelson

or conduct the Mathews balancing test despite the Seventh Circuit’s opinion being issued after



                                              - 18 ­
Nelson.

¶ 62           As explained above, we need not consider Mathews because Nelson has no

application to 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).

¶ 63           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, 318 F.3d 644, 656-57 (5th

Cir. 2003) (holding statutory fee over and above amount of bail constitutional, including under

Mathews); Enlow v. Tishomingo County, 45 F.3d 885, 889 (5th Cir. 1995) (upholding district

court’s analysis of Mississippi’s 2% bail bond fee under Mathews). See also Payton, 473 F.3d

845 (upholding fee imposed by sheriffs on arrestees who post bail bond at jail under Mathews).

¶ 64                     4. The Uniformity Clause and Equal Protection

¶ 65           Defendant’s equal protection claims have two components. First, defendant

argues the bail bond statute treats defendants who bond out under section 110-7(f) in Cook

County differently than in all other counties without a rational basis for doing so, thereby

violating the uniformity clause of the Illinois Constitution. Second, he contends that the bail

bond statute violates the equal protection clauses of the Illinois and United States Constitutions

because it impermissibly distinguishes between defendants who post bond under section 110-7(f)



                                              - 19 ­
and those who are released on recognizance or otherwise do not post bond. Because defendant’s

challenges rest on different premises, we address each in turn.

¶ 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.

¶ 68           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.” Id.

¶ 69           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



                                               - 20 ­
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 more 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.

¶ 70               Because we find defendant has failed under the uniformity clause, his claim

necessarily fails under the equal protection clause. Id. Although we do not need to, we will

address defendant’s other equal protection claims because they rest on a different set of

classifications.

¶ 71                                       b. Equal Protection

¶ 72               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 bond. Cook, 81 Ill. 2d at 181.

Defendant argues “[l]ikewise under 110-7(f), defendants who were released on their own

recognizance or were unable or unwilling to post bail were not subjected to the 110-7(f)

penalty.”

¶ 73               To begin, as explained in detail below, the bail bond fee in section 110-7(f) is not

a penalty. More importantly, however, defendant’s arguments were directly addressed and

thoroughly rejected by the Illinois Supreme Court and United States Supreme Court in the Schilb



                                                  - 21 ­
cases. 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.

¶ 74           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.

¶ 75           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, 872 F.3d at 852. The plaintiffs in Platt argued the bail bond fee

violated equal protection because defendants with very high bail paid significantly more than

others. Id. at 851. The Seventh Circuit explained that although charging a percentage fee

necessarily meant some defendants would pay more than others, any difference in outcome was a

disparate impact, not disparate treatment, and therefore “is not a permissible basis for finding a

denial of equal protection.” (Internal quotation marks omitted.) Id.

¶ 76           Further, the court concluded that the bail bond statute was rationally related to

multiple 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



                                               - 22 ­
administering the bail bond system: both the administrative costs as well as the costs of those

who jump bail.” Id. 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.” Id.

¶ 77            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 the 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, 872 F.3d at 853. Accordingly, section 110-7(f) does not

violate equal protection.

¶ 78                   5. Defendant’s Remaining Constitutional Challenges

¶ 79           Defendant’s last constitutional argument is that the bail bond statute is

unconstitutional as 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 Schilb 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 different 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



                                                - 23 ­
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.

¶ 81            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 Schilb cases are in line with

Illinois’s fines and fees jurisprudence.

¶ 82                         a. Distinguishing Between a Fine and a Fee

¶ 83             “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, 235 Ill. 2d 244, 250, 919 N.E.2d 906, 909 (2009). “[T]he most important

factor is whether the charge seeks to compensate the state for any costs incurred as the result of

prosecuting the defendant.” Id. “This is the central characteristic which separates a fee from a

fine. A charge is a fee if and only if it is intended to reimburse the state for some cost incurred in

defendant’s prosecution. [Citations.]” (Emphasis in original.) People v. Jones, 223 Ill. 2d 569,

600, 861 N.E.2d 967, 986 (2006). “Other factors to consider are whether the charge is only

imposed after conviction and to whom the payment is made.” Graves, 235 Ill. 2d at 251. Further,

the legislature’s label of a charge as a fee is strong, but not conclusive, evidence that the charge

is in fact a fee and not a fine. Id. at 250.

¶ 84                                           b. Analysis

¶ 85            Here, legislative history makes clear the bail bond fee is for the purpose of

recovering the costs of administering the bail bond system. Schilb II, 404 U.S. at 363 n.8 (citing



                                                 - 24 ­
Ill. Ann. Stat., ch. 38, art. 110, Committee Comments-1963, at 273, 275-76 (art. 110

introduction), 293 (discussing section 110-7), 307 (discussing section 110-8) (Smith-Hurd

1970)); see also 725 Ann. ILCS 5/110, Committee Comments-1963, at 394 (Smith-Hurd 2006)

(“deposit retained by the county will offset in monetary amount the costs of handling bail bonds

*** and any loss resulting from the occasional bail jumper”); id. § 110-7, at 437 (“deposit

retained by the clerk is to cover costs of handling bail bonds and deposits”); id. § 110-8, at 456

(“[Article 110] is designed *** to assure to the counties in every case a reasonable amount ***

to cover the cost of time and paper-work in handling bail cases.”). Further, the fee is not imposed

after conviction but instead after the terms of the bond have been complied with and the

defendant’s case is over. 725 ILCS 5/110-7(f) (West 2016). Clearly, then, the bail bond fee is not

a “fine” because it is not imposed on a defendant as a punishment in conjunction with a

conviction.

¶ 86           Moreover, the bail bond fee is not intended to reimburse the State for some cost

incurred in defendant’s prosecution because it is not related to defendant’s prosecution at all.

Schilb I, 46 Ill. 2d at 551-52; Schilb II, 404 U.S. at 370. Instead, it is a charge imposed on those

who elect to use the benefit of posting 10% bond under section 110-7 to help defray the costs of

the bail bond system. Schilb I, 46 Ill. 2d at 551-52; Schilb II, 404 U.S. at 370. A “fee” is also

defined as “a charge for labor or services, especially professional services.” People v. White, 333

Ill. App. 3d 777, 781, 776 N.E.2d 836, 839 (2002) (citing Black’s Law Dictionary 629 (7th ed.

1999)). This definition clearly encompasses the bail bond fee at issue which is best characterized

as a charge for a particular service.

¶ 87           We find further support for this determination in section 113-3.1 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/113-3.1 (West 2016)). Much like the bail bond statute,



                                               - 25 ­
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 benefits 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, 978 N.E.2d 1119 (setting forth procedure for trial courts to advise defendants who

state they desire counsel but have been unable to hire private counsel of the possibility of

assessing fees for appointed counsel under section 113-3.1). Under both statutes, the amount of

the fee assessed, if any, is determined only at the conclusion of a defendant’s case.

¶ 88           Moreover, neither statute distinguishes between convicted and acquitted

defendants. 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, 116 Ill. App. 3d 186, 187, 452 N.E.2d

143, 144 (1983).

¶ 89           Defendant appealed, claiming section 113-3.1 violated due process because it

applied to 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



                                               - 26 ­
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.” Id. at 189. This court relied on the United States Supreme

Court’s reasoning in Schilb 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. Id. at 189-90.

¶ 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.

¶ 91           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, 99 Ill. 2d 444, 452, 459 N.E.2d 1346, 1350 (1984) (“a charge having no

relation to the services rendered, assessed to provide general revenue rather than compensation,

is a tax”). Based on the bail bond statute’s legislative history and the conclusions in the Schilb

cases, we conclude that the bail bond fee serves both as compensation to the county for the

administration of the particular defendant’s bail in each case and as revenue for the funding of

the bail bond system as a whole. See, e.g., 725 ILCS Ann. 5/110, Committee Comments-1963, at

394 (Smith-Hurd 2006); supra ¶ 85.

¶ 92           Interesting though this question is, ultimately, it makes no difference whether the



                                               - 27 ­
bail bond 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.

¶ 93                                  III. CONCLUSION

¶ 94           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).

¶ 95           Affirmed.




                                             - 28 ­
