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September 15, 1989

JAMES CHRANS, Warden, Respondent

Brian Barnett Duff, United States District Judge.

The opinion of the court was delivered by: DUFF


 This case presents a rare instance where a federal court may have to bridle the discretion granted to a state trial judge by the state itself -- discretion which, in most cases, this court could not properly constrain. The record here reveals a state court decision which may be arbitrary, as the state has not presented any valid rationale for it.

 According to the briefs and exhibits filed in this court -- there is no formal state court record here -- Martin Nistler is a 21-year-old man whom the State of Illinois holds at the Sheridan Correctional Center. Nistler awaits a decision on his appeal of his conviction of two counts of aggravated battery, which are Class 3 felonies under Illinois law. See Ill.Rev.Stat. ch. 38, §§ 12-4(a), 12-4(b)(8) (1987). The Circuit Court of McLean County, Illinois, sentenced Nistler to two years imprisonment for his offenses on March 3, 1989. Prior to that time, the state had released Nistler on $ 500.00 bond, and Nistler had appeared at all required proceedings. Nevertheless, despite Nistler's motion to maintain the conditions of his release, the trial judge revoked the bond pending appeal. According to Nistler, the only reason the court gave for this decision had to do with the conduct Nistler displayed in committing the batteries.

 Nistler moved before the Illinois Appellate Court to set bond or, alternatively, to order the trial court to hold a hearing. On March 27, 1989 the appellate court denied the motion without comment. Nistler moved for the same relief before the Illinois Supreme Court; on May 9, 1989, in a similarly terse decision, the Illinois Supreme Court denied Nistler's motion.

 Nistler petitions this court for a writ of habeas corpus under 28 U.S.C. § 2254 (1982). He asks this court either to set bail pending appeal or to remand this case to the Circuit Court of McLean County with directions that it conduct a hearing in conformity with state law. Were this court to grant Nistler the latter relief, Nistler would not get much for his effort. Unlike the decision whether to grant a person bail pending trial -- which statutes guide, see Ill.Rev.Stat. ch. 38, §§ 110-2, 110-5, 110-6 -- under Illinois law the decision whether to grant a person bond pending appeal is left entirely to the discretion of the trial court. See id. at § 110-7(d); Ill.Sup.Ct.R. 609(b), Ill.Ann.Stat. ch. 110A, para. 609(b) (Smith-Hurd 1985); People v. Vaseska, 74 Ill. App. 2d 297, 220 N.E.2d 248 (1966) (abstract opinion). Illinois law does not provide for a hearing on motions for bond pending appeal, although it recommends consideration of certain factors prior to decision. See Ill.Rev.Stat. ch. 38, § 110-2. Even if Illinois law did mandate a hearing, this court could not order the state to conform to its own laws solely on the grounds that the state violated them. The federal courts may not issue writs of habeas corpus on the basis of an error of state law. See Pulley v. Harris, 465 U.S. 37, 41, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984).

 The question thus is whether this court should release Nistler on bond pending his appeal. Nistler's desire for bond is understandable, and it goes beyond the average person's preference for freedom. Under Illinois law, persons who receive prison sentences but who demonstrate good conduct while in prison receive a day-for-day credit towards their sentence. See Ill.Ann.Stat. ch. 38, para. 1003-6-3(a) (Smith-Hurd 1985). Thus, were Nistler to behave himself -- and there is nothing in the present (albeit sketchy) record to suggest that he will not -- he will have served his entire sentence by sometime in March 1990. According to the state, Nistler's brief in support of his appeal was due in the Illinois Appellate Court on June 21, 1989; Nistler argues that it is likely that he will have served his entire sentence before all of the briefs are before the appellate court and that court renders a decision. Nistler would like to be free on bond so that he can receive something more than a moral victory if he prevails on appeal.

  A federal court may not grant a writ of habeas corpus to a person in a state's custody unless the state is holding that person "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Nistler argues that his confinement is in violation of the Eighth Amendment, as applied to the states through the Fourteenth Amendment, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The decisions of the Seventh Circuit which have applied these constitutional provisions to state decisions whether to grant bond on appeal have suggested that these rights overlap. In United States ex rel. Walker v. Twomey, 484 F.2d 874 (7th Cir. 1973) (per curiam), the court noted first that the Eighth Amendment, as applied to the states through the Fourteenth Amendment, prohibits the states from requiring excessive bail. The court then held that "whatever the content of the constitutional protection with respect to bail, . . . it is clear that once a state has made provisions for bail pending appeal, the arbitrary denial of bail violates the fourteenth amendment." This language mirrored that used by Judge Will in one of the decisions which the Walker court was reviewing, United States ex rel. Keating v. Bensinger, 322 F. Supp. 784 (N.D. Ill. 1971). There Judge Will relied on decisions construing the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment. See id. at 786 & n. 6. Modifying Judge Will's approach, the Walker court held that the state violates the Fourteenth Amendment in denying bail to a prisoner awaiting appeal only when the prisoner demonstrates that the state lacked a rational basis for its decision. See Walker, 484 F.2d at 876.

 The Seventh Circuit's cases since Walker have applied its single test to state decisions to deny bond to persons whose convictions are on appeal. See United States ex rel. Smith v. Twomey, 486 F.2d 736, 739 (7th Cir. 1973) (per curiam); United States ex rel. Sampson v. Brewer, 593 F.2d 798, 799-800 (7th Cir. 1979) (per curiam). At one time this test was the same as the one used by the Seventh Circuit in reviewing state decisions denying bond before trial; the only difference was that before trial, the state bore the burden of proof in demonstrating a rational decision. See United States ex rel. Fitzgerald v. Jordan, 747 F.2d 1120, 1133-34 (7th Cir. 1984) (bond pending appeal of order dismissing charges); U.S. ex rel. Garcia v. O'Grady, 812 F.2d 347, 352-55 (7th Cir. 1987) (denial of bond pending trial).

 This court is not confident that a combined standard for testing either whether bail is excessive (the Eighth Amendment inquiry) or whether the state has denied bail arbitrarily (the due process/equal protection inquiries) remains appropriate. In United States v. Salerno, 481 U.S. 739, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987), the Court separated its analysis of the constitutionality of the federal government's pretrial detention statutes under the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment. While the Court declined to define the Eighth Amendment's limits on Congress's power to deny bail to criminal arrestees, see id. at 754, it is clear from the Court's treatment of the various constitutional issues that they are analytically distinct.

 The Seventh Circuit may be prepared to discard its conflated analysis of attacks under the Eighth and Fourteenth Amendments upon state decisions to deny bail to persons awaiting appeal. In a post-Salerno challenge to an Illinois rule requiring temporary custody of parolees upon probable cause of a violation of parole, the Seventh Circuit weighed the appellants' Eighth Amendment, Due Process, and Equal Protection arguments separately. See Faheem-El v. Klincar, 841 F.2d 712 (7th Cir. 1988) (en banc). In discussing the constitutionality of the rule under the Eighth Amendment's Excessive Bail Clause, the court focused on the state's substantive power to enact its rule. In looking at the rule's constitutionality under the Fourteenth Amendment's Due Process Clause, the court examined whether the state's procedures provided minimum protections against wrongful deprivation of liberty. In examining the rule's constitutionality under the Equal Protection Clause, it performed an entirely different analysis. See id. at 718-20.

 Salerno and Klincar thus draw the uniform constitutional test announced in Walker into question. Walker probably no longer provides an all-purpose test for analyzing whether a state's denial of bail to a convict awaiting appeal is constitutional under the Excessive Bail Clause of the Eighth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This court thus will address Nistler's attacks separately, beginning with his due process argument.

 As Walker indicates, the Due Process Clause of the Fourteenth Amendment does not impose procedures on a state's decision whether to grant bail to a criminal convict pending appeal. It does require the state, however, to act consistently once it decides to grant bail to some of these persons. Walker noted the long-standing presumption that a state acts regularly in all of its decisions, whether oral or written, explained or unexplained. "'This is not to say that the petitioner has lost his constitutional right or remedy. He can still attack the decision to deny him bail. He must, however, bear the burden of showing that the record provides no rational basis for the decision.'" Walker, 484 F.2d at 876, quoting United States ex rel. Kane v. Bensinger, 359 F. Supp. 181, 184 (N.D. Ill. 1972).

 As noted earlier, the lack of an official record handicaps the court in reviewing the state's decision here. In its brief presented to this court, the state suggests three basis for its decision: preventing Nistler from fleeing Illinois, upholding a presumption that persons sentenced to imprisonment should not be released unless they demonstrate a substantial ...

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