concurring in part and dissenting in part:
I agree that the stalking and aggravated stalking statutes are constitutional. However, I disagree with the majority’s conclusion that the provision for the denial of bail before trial, section 110 — 6.3 of the Code, is constitutional.
The Illinois Constitution provides that "[a]ll persons shall be bailable by sufficient sureties, except for the following 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.” (Ill. Const. 1970, art. I, § 9 (as amended).) This section of the Illinois Constitution grants a defendant the unfettered right to bail, unless the defendant falls within one of the specifically enumerated classes.
At the time of Coyne’s bail hearing, only a subsequent or second conviction for aggravated stalking would have fallen within one of the exceptions in article I, section 9, as such a conviction would allow for a sentence of imprisonment without conditional and revocable release. To the extent that section 110 — 6.3 renders an otherwise bailable offense nonbailable, section 110 — 6.3 is in direct conflict with the literal language of article I, section 9, of the Illinois Constitution. Thus, any time section 110 — 6.3 is applied in a case where the defendant has not been previously convicted of aggravated stalking, an unconstitutional application of the section results.
The majority, relying on People ex rel. Hemingway v. Elrod (1975), 60 Ill. 2d 74, attempts to avoid the constitutionality issue by concluding "that section 110— 6.3 merely codifies the inherent authority of courts to deny bail.” (167 Ill. 2d at 239.) Courts, however, do not have the inherent authority to admit or deny bail before a defendant’s trial. A court’s power to admit or deny bail before trial is limited by the express language of the Illinois Constitution.
A close reading of Hemingway supports the conclusion that courts have the inherent authority to deny bail during, but not before, trial. The court in Hemingway adopted the American Bar Association Standards Relating to Pretrial Release and remanded the case to be considered in conjunction with these standards. (Hemingway, 60 Ill. 2d at 84.) These standards involved the ability of the court to place conditions on a defendant being released on bail, to issue a warrant if the defendant violated bail or the conditions, and to impose different conditions or revoke a defendant’s bail if a violation was proven. Hemingway, 60 Ill. 2d at 81-83.
Although the Hemingway court stated that "the denial of bail to an accused *** is within the inherent power of the court,” the court limited the scope of this statement. (Hemingway, 60 Ill. 2d at 80.) The court preceded this language with the statement that "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.” (Emphasis added.) (Hemingway, 60 Ill. 2d at 79.) The two cases on which the Hemingway court relied involved the denial of bail during trial (Fernandez v. United States (1961), 5 L. Ed. 2d 683, 81 S. Ct. 642) and the denial of bail while the defendant was waiting appeal (Carbo v. United States (1962), 7 L. Ed. 2d 769, 82 S. Ct. 662). Clearly, the court limited the scope of its statement to the inherent authority of courts to deny bail during trial, when a case is before them, or after trial, while a defendant waits appeal.
While engaging in the above analysis, I am cognizant of my statements in People v. Williams (1991), 143 Ill. 2d 477.1 stated that "[t]he decision to grant or deny bail in criminal proceedings *** is an inherent power of the courts.” (Williams, 143 Ill. 2d at 486 (Heiple, J., specially concurring).) Williams involved the ability of courts to grant or deny bail while a defendant appeals his conviction — a situation which involves the orderly process of criminal procedure. The statement applied only to the power of courts over a defendant while he awaits appeal.
Accordingly, I respectfully dissent from that portion of the majority opinion which concludes that the provision for the denial of bail before trial is constitutional.
JUSTICE HARRISON joins in this partial concurrence and partial dissent.