People ex rel. Hemingway v. Elrod

Decision Date30 January 1975
Docket NumberNo. 47070,47070
Citation322 N.E.2d 837,60 Ill.2d 74
PartiesThe PEOPLE ex rel. Henry HEMINGWAY, Petitioner, v. Richard ELROD, Sheriff, et al., Respondents.
CourtIllinois Supreme Court

Michael Buckley Bolan, Chicago, for petitioner.

William J. Scott, Atty. Gen., Springfield, and Bernard Carey, State's Atty., Chicago (James B. Zagel and Jayne A. Carr, Asst. Attys. Gen. and Patrick T. Driscoll, Jr. and Raymond J. Prosser, Asst. State's Attys. of counsel), for respondents.

RYAN, Justice:

This is an original action in this court. We granted petitioner leave to file a petition for a writ of Habeas corpus pursuant to our Rule 381 (Ill.Rev.Stat.1973, ch. 110A, par. 381). Petitioner was charged with murder in the circuit court of Cook County. At the hearing on his motion to set bail, the trial court found that he was not entitled to bail under section 9 of article I of the Illinois Constitution of 1970, even though the petitioner was not charged with killing a person for whose murder the statute prescribes the death penalty. (See Ill.Rev.Stat.1973, ch. 38, par. 1005--8--1A.) The sole issue of law presented is whether the petitioner, who is charged with the offense of murder, but who is not potentially subject to the death penalty if convicted, is entitled to bail as a matter of right under section 9 of article I of the Illinois Constitution of 1970.

With regard to bail, section 9 of article I of the 1970 Constitution provides: 'All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great.' The same language was contained in section 7 of article II of the 1870 Constitution. The General Assembly had implemented these constitutional provisions in section 110--4 of the Code of Criminal Procedure (Ill.Rev.Stat.1971, ch. 38, par. 110--4), which provided:

'Sec. 110--4. Bailable Offenses.

(a) All persons shall be bailable before conviction, except when death is a possible punishment for the offenses charged and the proof is evident or the presumption great that the person is guilty of the offense.

(b) A person charged with an offense for which death is a possible punishment has the burden of proof that he should be admitted to bail.'

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, and in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706, the United States Supreme Court held that the imposition of the death penalty under statutes like those of Illinois violates the eighth and fourteenth amendments of the United States Constitution. Both of these cases were decided June 29, 1972. Possibly to avoid the effect of these decisions on bailable offenses in Illinois the General Assembly amended section 110--4 of the Code of Criminal Procedure, effective July 1, 1972, by substituting the words 'the offense charged is murder, aggravated kidnapping or treason' for the words 'death is a possible punishment for the offenses charged' in section 110--4(a) and made a corresponding change in section 110--4(b).

The petitioner contends that he is not charged with a capital offense, that is, one for which the death penalty may be imposed and therefore under section 9 of article I of the 1970 Constitution he must be admitted to bail. The State contends that under the amendment to section 110--4(a) the offense of murder is nonbailable except where the proof is not evident or the presumption not great and the burden of proving this exception is one the petitioner. It is the State's contention that this burden has not been met.

Several States have considered the effect of Furman v. Georgia and statutes which do not authorize the imposition of the death penalty in light of their constitutional provisions relating to bail. One group has followed what may be called a 'penalty' theory and concluded that the term 'capital offense' or similar words in their constitutions referred to the penalty that could be imposed upon a person found guilty of a crime. Since the death penalty could no longer be imposed, these cases conclude that there are no offenses in their respective States which are nonbailable. See In re Tarr (1973), 109 Ariz. 264, 508 P.2d 728; State v. Aillon (1972), Conn., 295 A.2d 666; Donaldson v. Sack (Fla. 1972), 265 So.2d 499; In re Ball (1920), 106 Kan. 536, 188 P. 424; State v. Pett (1958), 253 Minn. 429, 92 N.W.2d 205; State v. Johnson (1972), 61 N.J. 351, 294 A.2d 245; Edinger v. Metzger (1972), 32 Ohio App.2d 263, 61 Ohio Op.2d 306, 290 N.E.2d 577; Commonwealth v. Truesdale (1972), 449 Pa. 325, 296 A.2d 829; Ex parte Contella (Tex.Cr.App.1972), 485 S.W.2d 910; In re Perry (1865), 19 Wis. 676.

Another group of States follows the 'classification' theory, which holds that the constitutional provisions refer to a category of offenses the gravity of which was determined both for the purpose of bail before trial and for the purpose of punishment after trial. The constitutions and the legislatures have classified crime according to its gravity, and this classification for purpose of bail remains unaffected by Furman v. Georgia. See People ex rel. Dunbar v. District Court (1972), 179 Colo. 304, 500 P.2d 358; State v. Flood (1972), 263 La. 700, 269 So.2d 212; Hudson v. McAdory (Miss.1972), 268 So.2d 916; Jones v. Sheriff, Washoe County (1973), 89 Nev. 175, 509 P.2d 824; In re Kennedy (Okl.Cr.App.1973), 512 P.2d 201; Roll v. Larson (1973), 30 Utah 2d 271, 516 P.2d 1392.

California originally followed the 'classification theory' (People v. Anderson (1972), 6 Cal.3d 628, 100 Cal.Rptr. 152, 93 P.2d 880, and later adopted the 'penalty' theory. See In re Boyle (1974), 11 Cal.3d 165, 113 Cal.Rptr. 99, 520 P.2d 723.

It is apparent that the General Assembly by the 1972 amendments to section 110--4 of the Code of Criminal Procedure attempted to adopt the 'classification' theory, and the State urges this court to do likewise.

We cannot accept the State's argument. This court has held that a capital case is one in which the death penalty may, but need not necessarily, be inflicted. 'It is in this sense that the term is used when dealing with the rights of an accused prior to a judgment of conviction, such as the right to bail.' (People v. Turner (1964), 31 Ill.2d 197, 198--199, 201 N.E.2d 415, 416. To adopt the 'classification' theory urged by the State would be contrary to the clear expression of this court in Turner and contrary to what we consider to be the generally accepted meaning of the term 'capital offense.' It would likewise be contrary to the understanding of the delegates to the 1970 constitutional convention as reflected in the debates. (See 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1654--1656.) To the extent that section 110--4 of the Code of Criminal Procedure attempts to render nonbailable offenses other than those for which the death penalty may be imposed, we hold the same to be invalid and contrary to the provisions of section 9 of article I of the 1970 Constitution.

Petitioner, not being charged with an offense for which the death penalty may be imposed, is therefore 'bailable' under the provisions of our constitution. The petitioner here argues, as have defendants in other cases in which no opinions were filed because the issues became moot, that a person charged with a bailable offense has an Absolute right to be released on bail. Petitioner cites People ex rel. Sammons v. Snow (1930), 340 Ill. 464, 173 N.E. 8, in support of his contention. Although that case speaks of a right to bail before conviction, it does not refer to this right as being absolute.

In our opinion the constitutional right to bail must be qualified by the authority of the courts, as an incident of their power to manage the conduct of proceedings before them, to deny or revoke bail when such action is appropriate to preserve the orderly process of criminal procedure. This action must not be based on mere suspicion but must be supported by sufficient evidence to show that it is required. Thus keeping an accused in custody pending trial to prevent interference with witnesses or jurors or to prevent the fulfillment of threats has been approved. (See Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (Harlan, Circuit Justice, 1961); Carbo v. United States, 82 S.Ct. 662, 7 L.Ed.2d 769 (Douglas, Circuit Justice, 1962); see also Annot. (1972), 30 L.Ed.2d 952, 972.) We think that under both the United States and Illinois constitutions the denial of bail to an accused under such circumstances is within the inherent power of the court. Also, if a court is satisfied by the proof that an accused will not appear for trial regardless of the amoung or conditions of bail, bail may properly be denied. State v. Johnson (1972), 61 N.J. 351, 294 A.2d 245; Commonwealth v. Truesdale (1972), 449 Pa. 325, 296 A.2d 829.

By holding that the right to bail is not absolute we are not adopting the principle of preventive detention of one charged with a criminal offense for the protection of the public, and it is not necessary here to discuss the wisdom or the constitutionality of that principle. The subject has been discussed at length by commentators. (See Foote, The Coming Constitutional Crisis in Bail: II, 113 U.Pa.L.Rev. 1125, 1164 (1965); Packer, Two Models of the Criminal Process, 113 U.Pa.L.Rev. 1, 38 (1964); Comments and Notes, Bail: The Need for Reconsideration, 59 Nw.U.L.Rev. 678, 691 (1964); Note, Preventive Detention Before Trial, 79 Harv.L.Rev. 1489 (1966); Hermann, Preventive Detention, A Scientific View of Man, and State Power, 1973 U.Ill.L.F. 673.) The subject was also seriously considered by the advisory committee on pretrial proceedings of the American Bar Association Project on Minimum Standards for Criminal Justice. The committee concluded that it should not recommend the adoption of a preventive-detention standard. See ABA Standards Relating to Pretrial Release (Approved Draft 1968), Commentary, at 69.

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