State v. Smith

Rosellini, J.

(concurring in part; dissenting in part) — Const, art. 1, § 20, provides:

All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great.

While taking the view that the granting or denying of bail is a procedural and not a substantive matter, the majority does not go so far as to state that the constitutional *509 limitation upon the right to bail, pending trial, is not binding on the courts. Such a conclusion would be intolerable, since the power which enacted this provision respecting bail also created this court and gave it its jurisdiction and authority. That power is, of course, the people.

It would appear that we have attempted to abrogate this constitutional provision in CrR 3.2, governing pretrial release, insofar as it provides that capital offenses shall not be bailable. In that rule, we have lodged in the trial courts the discretion to grant or deny bail in all cases. While the question is avoided in the majority opinion, there appears to be an implicit recognition that, in extending this discretion to capital cases, we have exceeded our constitutional authority.

The controlling question in the case before us, as I see it, involves the interpretation of this constitutional provision. Was it the intent of the framers that a person charged with a capital offense, who is presumed innocent, should be denied bail before trial but that after conviction, when he is no longer presumed innocent, he should be allowed bail at the discretion of the court? I think such an intent cannot be reasonably attributed to the framers.

Constitutional provisions should be construed so as to give effect to the manifest purpose for which they were adopted. The language of the constitution is to be taken in its general and ordinary sense; and when the words are used which have both a general and a restricted meaning, the general must prevail over the restricted unless the nature of the subject matter or the context indicates that a restricted sense was intended. State ex rel. Linn v. Superior Court, 20 Wn.2d 138 , 146 P.2d 543 (1944).

Giving the words used in article 1, section 20, their ordinary meaning, it appears to me that the framers intended to grant the right to bail to persons charged with crimes generally, before conviction, but to withhold that right from persons charged with crimes so serious that the death *510 penalty was prescribed as a possible penalty, and where the proof of guilt was evident or the presumption great.

In the case of In re Berry, 198 Wash. 317, 320 , 88 P.2d 427 (1939), this court held that, the constitution does not guaranty the right to bail pending appeal from conviction but leaves this matter to the sound discretion of the court, unless otherwise determined by statute, indicating by dictum that discretion is allowed to grant bail in capital cases. The statute under consideration there, Rem. Rev.. Stat. § .1747 (P.C. § 7331), prohibited the granting of bail in capital cases (where the above circumstances were present) pending appeal, and this court held that the statute forbade the granting of bail, even where the death penalty was not imposed. Upon the subject which concerns us here, it was said:

While the major principle declared by the authorities is that the constitution does not guarantee the right to bail pending an appeal from conviction, they also indicate that the matter of bail under such circumstances rests in the discretion of the court unless otherwise determined by statute. We are in accord with that view, and are of the opinion that the constitution neither confers the right to bail nor prohibits its allowance, pending an appeal from conviction.

I think this statement is in accord with the expressed intent of the constitution, insofar as it applies to the right to bail in noncapital cases. Insofar as it suggests that the constitution confers upon the courts the right to grant bail in the case of persons convicted of capital offenses, I think it is questionable, for it seems clear to me, reading the words of the constitutional provision and ascribing to them the meaning which an ordinary person would be expected to find there, that the framers contemplated that a person charged with a capital offense, who has been found guilty, should not be granted bail thereafter.

I am of course aware that we cited and quoted the Berry case in State v. Haga, 81 Wn.2d 704 , 504 P.2d 787 (1972), upon the proposition that the limitation on the right to bail *511 under article 1, section 20, does not apply to cases on appeal. Here again, the statement was admittedly dictum. The issue in that case was whether RCW 10.73.040, limiting a defendant’s right to bail pending appeal in capital cases, was affected by abolishment of the death penalty. We held there that the restriction on bail was due to the seriousness of the offense, and not the seriousness of the penalty.

In neither of these cases was the court confronted with the question whether the constitution prohibits the granting of bail in capital cases (or cases where the offense would have been punishable by death prior to the abolishment of that penalty), pending appeal. In each of them, the legislative provision under consideration adopted the constitutional restriction.

I think the legislature correctly interpreted the intent of the framers when it carried this restriction over into the act regulating the granting of bail pending appeal. It recognized that the people did not approve the granting of bail where the offense was so grave that the liberty of the offender posed a threat to human life, and where the guilt of the defendant was clearly establishable or had been established before a jury. I construe the constitutional provision as the legislature evidently construed it. It was the intent of the people to grant the right of bail to persons who have merely been charged with a crime, unless that crime is so serious as to be made a capital offense by the legislature and it is evident that the defendant will be convicted; it was their intent not to grant the right to persons convicted but to leave the question of whether bail should be granted to the discretion of the legislature or the courts, and it was their intent that those persons who were evidently guilty of capital offenses should not have bail, either before or after conviction. It would be absurd to suppose that the framers thought that a person charged with a capital offense would be likely to pose a grave threat to the community if he were set free pending trial; but that if he were released after conviction, but before the *512 punishment was imposed, no such threat would be present. After conviction, the impetus to commit desperate acts would be even greater.

Assuming that the constitutional provision is not in accordance with some views on the efficacy of criminal sanctions, it is nonetheless the duty of this court to interpret it according to the manifest intent of the framers and to give it effect.

I understand the attitude of the courts that flexibility is needed; however, the fact that such flexibility is desirable does not automatically render it constitutional. The constitution of this state should be modified by the people and not by this court. That constitution manifests a clear intent that persons in the position of the petitioner Smith should not be admitted to bail.

I would affirm in the case of Forsyth v. State, and reverse in the case of State v. Smith.

Hale, C.J., concurs with Rosellini, J.