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 possibility of reversing their conviction, and securing the public from Nistler's violent behavior.
The first of these grounds is not a rational one, on the undisputed facts presented to this court. The state had released Nistler on bond prior to his conviction, and Nistler appeared at all required proceedings. The presentence investigation report on Nistler states that he was employed in Niles, Illinois; he also is a life-long resident of the state, and formerly resided with his mother, to whom Nistler relates well. The state argues that despite these facts, once any trial judge sentences a person to prison, the risk of flight increases to the point that bail cannot guarantee future appearance. There is no support for this contention, however, in the record. The court would be suprised to learn that Illinois denies bail to all persons awaiting appeal who have received a sentence of a term of imprisonment. Unless the state did so, or unless there is something as yet not indicated to the court in the record which would support the state's particular concern that Nistler will flee, the state cannot claim risk of flight as a reason for its decision.
The court similarly finds that the second ground for denying bail is not rational on the record presented to the court. The state made only one argument to the Illinois Appellate and Supreme Courts respecting possible errors in the trial court: that Nistler's post-trial motion had no merit. The state made this argument based solely on a prosecutor's assessment of the motion and the trial court's denial of it -- not on the basis of independent analysis. Like its professed concern for preventing Nistler from fleeing, this appears to be an after-the-fact justification for holding Nistler, one without support in the record.
The state's third justification does have support in the record: protecting the public from harm. Nistler has been found guilty of two aggravated batteries committed on one occasion. While Nistler has no prior record, the violence of these felonies is manifest. Denying bond to persons appealing conviction of a violent felony is rational, even when there is no evidence of chronic violent behavior. See Walker, 484 F.2d at 876; Smith, 486 F.2d at 739; Simpson v. Brewer, 593 F.2d 798 at 799 (1979). The state's decision thus did not transgress the Due Process Clause of the Fourteenth Amendment.
Nistler's Equal Protection argument is more formidable. As the Seventh Circuit has noted, the essence of the Constitution's guarantee of equal protection of the laws is "straightforward. It commands that states treat similarly situated people in a similar manner." Klincar, 841 F.2d at 727. Courts are to examine equal protection challenges in two steps:
First, a court must determine whether the state action infringes upon a fundamental right or discriminates on the basis of a suspect category. If so, the . . . action is reviewed under either a strict or intermediate scrutiny standard. . . . If no fundamental rights or suspect categories are involved, a court must simply determine whether the differential treatment of similarly situated individuals is rationally related to a legitimate state interest. A party alleging an equal protection challenge involving this standard bears the "heavy burden" of demonstrating that the differences in treatment are to unrelated to legitimate objectives that the only conclusion a court can reach is that the [state's] actions were irrational.
Id., quoting Peterson v. Lindner, 765 F.2d 698, 705 (7th Cir. 1985).
Nistler does not assert that he has a fundamental right to bond pending his appeal, or that the state denied him bond on the basis of a suspect classification. He thus bears the burden of demonstrating that the differences which the state asserts as a basis for its decision are "so unrelated to legitimate objectives" that the state's decision in his case was capricious.
As noted above, the only rational basis for denying Nistler bail was that he had committed a violent felony. The state presents no argument, and the record does not reveal, why it denied bond in this case, while apparently letting others go free. Illinois law allows release on recognizance or bond for violent felons who are awaiting appeal. See Ill.Rev.Stat. ch. 38, § 110-2. While it was within the trial court's power to deny release or bond, the record (or perhaps lack of record) indicates that the decision made here was arbitrary. The state has offered no proof that it denies bail to all persons who are in Nistler's position, which raises the inference that the state did so arbitrarily or for illegitimate reasons.
The state thus did not afford Nistler the equal protection of its laws.
Because of this court's conclusion that the state violated the Equal Protection Clause of the Fourteenth Amendment in denying bond to Nistler, the court will not rule on his contention that the state violated the Excessive Bail Clause of the Eighth Amendment. The court will give the state 30 days in which to hold a bond hearing. If it does not, this court will hold a hearing as to whether this court should grant bond pending Nistler's state criminal appeal, and if so, the amount of that bond.
The court orders the clerk of this court to set the matter for hearing.
DATE: September 15, 1989