Original habeas corpus proceeding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
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, 33 L.Ed.2d 346, 92 S.Ct. 2726, and in Moore v. Illinois, 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562, 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 on 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.Crim. 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 (Okla. Crim. 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, 93 P.2d 880, 100 Cal.Rptr. 152), and later adopted the "penalty" theory. See In re Boyle (1974), 11 Cal.3d 165, 520 P.2d 723, 113 Cal.Rptr. 99.
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, 198-9.) 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, in support of his ...