Docket No. 92739–Agenda 10–March 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 

								WILLARD PURCELL, Appellee.

Opinion filed October 3, 2002.

	JUSTICE GARMAN delivered the opinion of the court:

	In August 2001, defendant was arrested and indicted in the

circuit court of Winnebago County on four counts of first degree

murder pursuant to sections 9–1(a)(2), (a)(3), and (b)(19) of the

Criminal Code of 1961 (720 ILCS 5/9–1(a)(2), (a)(3), (b)(19)

(West 2000)). On appeal following denial of bail, the appellate

court declared unconstitutional section 110–4(b) of the Code of

Criminal Procedure of 1963 (the Code) (725 ILCS 5/110–4(b)

(West 2000)) and remanded the matter to the trial court for

consideration of defendant’s bail request. 325 Ill. App. 3d 551. We

granted the State’s timely appeal. 177 Ill. 2d R. 315; 134 Ill. 2d R.

317. We affirm and hold that section 110–4(b) violates article I,

section 9, of the Illinois Constitution of 1970 (Ill. Const. 1970, art.

I, §9).

BACKGROUND

	In August 2001, defendant was arrested and indicted on four

counts of first degree murder. 720 ILCS 5/9–1(a)(2), (a)(3),

(b)(19) (West 2000). The defendant allegedly killed his wife by

striking her repeatedly in the head with a blunt object. If convicted

of the charged offense, defendant would be eligible to receive a

sentence of life imprisonment. 730 ILCS 5/5–8–1(a)(1)(b) (West

2000). Defendant filed motions requesting bail and seeking a

determination that section 110–4(b) of the Code (725 ILCS

5/110–4(b) (West 2000)) is unconstitutional.

	The right of an accused to obtain pretrial bail is governed by

article I, section 9, of the Illinois Constitution of 1970  (Ill. Const.

1970, art. I, §9). This section provides:

			“All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great: capital offenses;

offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony

offenses for which a sentence of imprisonment, without

conditional and revocable release, shall be imposed by

law as a consequence of conviction, when the court, after

a hearing, determines that release of the offender would

pose a real and present threat to the physical safety of any

person. The privilege of the writ of habeas corpus shall

not be suspended except in cases of rebellion or invasion

when the public safety may require it.

			Any costs accruing to a unit of local government as a

result of the denial of bail pursuant to the 1986

Amendment to this Section shall be reimbursed by the

State to the unit of local government.” (Emphases added.)

Ill. Const. 1970, art. I, §9.

	On August 15, 2001, the trial court denied defendant’s motion

to declare section 110–4(b) unconstitutional. On September 10,

2001, the trial court denied defendant’s motion for pre-trial bail,

finding that he did not meet his burden under section 110–4(b) to

demonstrate that the proof of his guilt was not evident and the

presumption of his guilt was not great.

	Defendant appealed denial of bail by filing a motion for

review under Supreme Court Rule 604(c) (188 Ill. 2d R. 604(c)).

The appellate court vacated the finding of the trial court and

remanded, holding that section 110–4(b) is unconstitutional and

that defendant’s pretrial bail proceedings deprived defendant of his

constitutional right to due process. The appellate court also held

that the unconstitutionality of subsection (b) is not fatal to the

remainder of section 110–4. The State has appealed the judgment

of the appellate court.

ANALYSIS

	We are asked to determine whether section 110–4(b) of the

Code (725 ILCS 5/110–4(b) (West 2000)) violates constitutional

guarantees of due process. We review de novo a circuit court’s holding with respect to the constitutionality of a statute. People v. Conloan, 189 Ill. 2d 286, 291 (2000); Russell v. Department of Natural Resources, 183 Ill. 2d 434, 441 (1998). Statutes enjoy a presumption of constitutionality. Conloan, 189 Ill. 2d at 291. The party challenging the validity of a statute bears the burden of

clearly establishing the alleged constitutional violation. People v. Williams, 143 Ill. 2d 477, 481 (1991). While this presumption certainly does not mean that statutes are unassailable, neither

should courts lightly or cavalierly declare unconstitutional that

which the representatives of the people have seen fit to enact.

Conloan, 189 Ill. 2d at 291-92. It is our duty to strike down legislation that plainly violates the constitution. Williams, 143 Ill. 2d at 481;, quoting People v. Lindner, 127 Ill. 2d 174, 184 (1989). This is especially true when the legislation affects an individual’s

liberty or constitutional due process rights. The due process clause

provides heightened protection against government interference

with certain fundamental rights and liberty interests. U.S. Const.,

amend. XIV; Ill. Const. 1970, art. I, §2; In re M.H., 196 Ill. 2d 356, 362, (2001), ciquoting Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S. Ct. 2258, 2267,  138 L. Ed. 2d 772, 787, 117 S. Ct. 2258, 2267, (1997).

Although the legislature has wide discretion in prescribing

penalties for defined criminal offenses, this discretion is limited by

the constitutional guarantee that a person may not be deprived of

liberty without due process of law. People v. Reed, 148 Ill. 2d 1, 11, (1992). Although our inquiry in this case involves matters of

criminal procedure rather than criminal penalties, the importance

of protecting constitutional due process rights is not diminished.

The Denial of Pretrial Bail Under the Illinois Constitution

	A defendant may be denied bail in certain instances

enumerated in the Illinois Constitution and by statute. See Ill.

Const. 1970, art. I, §9; 725 ILCS 5/110–4(a), (b) (West 2000);

People v. Bailey, 167 Ill. 2d 210 (1995); People ex rel. Hemingway v. Elrod, 60 Ill. 2d 74 (1975). The constitution states expressly that bail may be denied if the accused is charged with a

capital offense or an offense for which a sentence of life

imprisonment may be imposed and where the proof is evident or

the presumption great. Ill. Const. 1970, art. I, §9. However, article

I, section 9, does not indicate expressly how the trial court in a bail

proceeding in a capital case is to determine whether the proof is

evident or the presumption great. Section 110–4 is a codification

of article I, section 9, and provides courts with additional guidance for the execution of bail proceedings. Section 110–4 provides, in

part:

			“(a) All persons shall be bailable before conviction,

except the following offenses where the proof is evident

or the presumption great that the defendant is guilty of the

offense: capital offenses; offenses for which a sentence of

life imprisonment may be imposed as a consequence of

conviction ***;.

			(b) A person seeking release on bail who is charged

with a capital offense or an offense for which a sentence

of life imprisonment may be imposed shall not be bailable until a hearing is held wherein such person has the burden of demonstrating that the proof of his guilt is not evident and the presumption is not great.” (Emphasies

added.). 725 ILCS 5/110–4(a), (b) (West 2000).

	Section 110–4(b) goes beyond the language of article I,

section 9, and was added to clarify issues of proof arising during

bail proceedings. 725 ILCS Ann. 5/110–4, Committee

Comments–1963, at 48 (Smith-Hurd 1992). Under this section, a

defendant seeking pretrial bail who is charged with a capital

offense, or an offense for which a sentence of life imprisonment

may be imposed, bears the burden to establish that the proof of his

guilt is not “evident.”

	The issue of whether 110–4(b) violates the Illinois or United

States Constitution has not previously been addressed by an

Illinois court. However, the constitutions of many other states

contain similar provisions guaranteeing bail to the accused except

in cases punishable by life imprisonment where the proof is

evident and the presumption great. See, e.g., Colo. Const., art. II, §19; Fla. Const. 1968, art. I, §14; Del. Const., art. I, §12; Ky.

Const. §16; La. Const. 1974, art. I, §18; Nev. Const., art. I, §7; R.I.

Const. 1956, art. I, §9; La. Const. 1974, art.

I, §18. As a result, there are a number of cases

from other jurisdictions in which courts have considered the

question of whether the State or the accused bears the burden

during bail proceedings with regard to whether the proof is evident

or the presumption great. Many courts have relied on the principle

of an accused’s presumption of innocence to place the burden

upon the State. See, e.g., Orona v. District Court, 184 Colo. 55, 518 P.2d 839 (Colo. 1974); In re Steigler, 250 A.2d 379 (Del. 1969); State v. Arthur, 390 So. 2d 717 (Fla. 1980); Young v. Russell, 332 S.W.2d 629 (Ky. 1960); In re Application of Wheeler, 81 Nev. 495, 406 P.2d 713 (Nev. 1965); Fountaine v. Mullen, 117 R.I. 262, 366 A. 2d 1138 (R.I. 1976). Other courts have placed the burden on the

accused, finding that an indictment raises a prima facie presumption of guilt that the accused must overcome by sufficient

rebuttal evidence. See, e.g., Partlow v. State, 453 N.E.2d 259 (Ind. 1983); State v. Green, 275 So. 2d 184 (La. 1973); Fischer v. Ball, 212 Md. 517, 129 A.2d 822 (Md. 1957).

	We must first examine the viability of section 110–4(b) in

light of the language of our own constitution. In general, the rules

of statutory construction apply to the construction of constitutional

provisions. People ex rel. Chicago Bar Ass'’ociation v. State Board of Elections, 136 Ill. 2d 513, 526 (1990). The best guide to interpreting the Illinois Constitution is the document’s own plain

language. Cincinnati Insurance Co. v. Chapman, 181 Ill. 2d 65, 77 (19918). Interpretation of a constitutional provision begins with the

language of the provision. Graham v. Illinois State Toll Highway Authority, 182 Ill. 2d 287, 301 (1998). When the meaning of a provision cannot be derived from the plain language of the

constitution, we must endeavor to give meaning to an ambiguous

provision or term. See Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483 (1984). A statute or constitutional provision is

ambiguous if its meaning cannot be interpreted from its plain

language or when it is capable of being understood by reasonably

well-informed persons in two or more different senses. See In re B.C., 176 Ill. 2d 536, 543 (1997); People v. Jameson, 162 Ill. 2d 282, 288 (1994).

	Section 9 states that “[a]ll persons shall be bailable *** except *** where the proof is evident or the presumption great ***.”

(Emphasies added.) Ill. Const. 1970, art. I, §9. This creates a

rebuttable presumption that the accused is eligible for bail. Section

9 is ambiguous in that it lacks an express allocation of the burden

of rebutting this presumption to either the State or the defendant.

An interpretation of section 9 placing the burden of rebutting that

presumption on the defendant would essentially change the

meaning of the constitution’s language from “shall be bailable *** except” (emphasies added) (Ill. Const. 1970, art. I, § 9) to “shall not be bailable unless” or, as section 5/110–4(b) states, “shall not be bailable until” (emphasies added) (725 ILCS 5/110–4(b) (West 2000)). While this change in meaning may appear slight, the

implications on due process rights would be monumental. Had the

framers intended that a capital defendant could never receive bail

unless he or she met certain burdens or made significant showings

at the pre-trial phase of proceedings, it is reasonable to assume that

they would not have accomplished this goal in such a cumbersome

manner.

	The object of bail is to make certain the defendant’s

appearance in court and bail is not allowed or refused because of

his presumed guilt or innocence. People ex rel. Hemingway, 60 Ill. 2d at 81. The denial of bail must not be based on mere suspicion

but must be supported by sufficient evidence to show that it is

required. People ex rel. Hemingway, 60 Ill. 2d at 79-80. As our constitution expressly protects the right of a defendant to bail

unless certain circumstances exist, the prosecution must have the

burden of showing sufficient evidence that a defendant should be

denied that constitutional right. As a practical matter, the State is

in a better position to present such evidence during a bail hearing.

In most cases, the State will have already presented some evidence

against the accused in order to secure an indictment from the grand

jury. The accused, on the other hand, is often in a very poor

position to gather and present evidence at a bail hearing, as he is

incarcerated and facing charges in a criminal proceeding only

recently initiated against him. Placing the burden on the accused

is, in effect, forcing him to prove a negative.

	We note that in other subsections of section 110–4, the

legislature chose to expressly place the burden on the State. When

it is alleged that bail should be denied upon the grounds that the

defendant presents a threat to the physical safety of others, the

burden is placed on the State under section 110–4(c). (725 ILCS

5/110–4(c) (West 2000)). Likewise, the State has the burden under

subsection (d) when it is alleged that bail should be denied to a

person charged with stalking or aggravated stalking (see 725 ILCS

5/110–6.3 (West 2000)). 725 ILCS 5/110–4(d) (West 2000). We

are not concerned with the General Assembly’s rationale for providing for a different allocation of the burden in cases where

the accused is charged with a capital offense or an offense for

which a sentence of life imprisonment may be imposed. Our role

is not to determine how wise legislation may be, but rather to

determine its constitutionality. People v. J.S., 103 Ill. 2d 395, 407 (1984); People v. Joseph, 113 Ill. 2d 36, 41 (1986).

	Having found section110–4(b) unconstitutional under article

I, section 9, of the Illinois Constitution, we need not reach the

parties’ arguments with respect to any presumption of innocence

or guilt at pretrial proceedings.

Severability of Section 110–4

	While we find section 110–4(b) unconstitutional, our holding

does not serve to invalidate the entire statute. In light of our

obligation to uphold legislative enactments whenever possible, we

may excise an unconstitutional portion of a statute and preserve

the remainder (see 5 ILCS 70/1.31 (West 2000)) if what remains

is complete in and of itself, and is capable of being executed

wholly independently of the severed portion. People v. Sanders, 182 Ill. 2d 524, 534 (1998). Here, the invalidity of subsection (b)

is not fatal to the remainder of section 110–4. We believe that the

legislature would endorse the remainder of section 110–4 without

subsection (b) and that subsections (a), (c), and (d) can stand

independently of subsection (b). The removal of subsection (b)

undermines neither the completeness of nor the ability to execute

the remaining subsections of section 110–4.

CONCLUSION

	For the foregoing reasons, we affirm the judgment of the

appellate court and find section 110–4(b) of the Code in violation

of article I, section 9, of the Illinois Constitution.

Affirmed.

	JUSTICE RARICK took no part in the consideration or

decision of this case.