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COMMONWEALTH EX REL. FORD v. HENDRICK. COMMONWEALTH EX REL. TUCKER (09/11/69)

SUPERIOR COURT OF PENNSYLVANIA


decided: September 11, 1969.

COMMONWEALTH EX REL. FORD, APPELLANT,
v.
HENDRICK. COMMONWEALTH EX REL. TUCKER, APPELLANT, V. HENDRICK

Appeals from orders of Court of Common Pleas of Philadelphia County, March T., 1969, Nos. 63 and 62, in cases of Commonwealth ex rel. William Ford v. Edward J. Hendrick, Superintendent, and Commonwealth ex rel. Richard Tucker v. Same.

COUNSEL

David Kairys, Assistant Defender, with him Frank Wright, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, and Anthony G. Amsterdam, for appellant.

Paul R. Michel, Assistant District Attorney, with him James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Concurring Opinion by Wright, P. J. Dissenting Opinion by Hoffman, J.

Author: Per Curiam

[ 215 Pa. Super. Page 207]

Order affirmed.

Disposition

Order in each case affirmed.

Concurring Opinion by Wright, P. J.:

Pretrial or preventive detention is not the issue in these appeals. The court below set reasonable bail in each case. What appellants actually request is that, since they are indigents, they should be released without any bail whatever. This request was properly refused by the court below, and it is that action which we are affirming.

[ 215 Pa. Super. Page 208]

Dissenting Opinion by Hoffman, J.:

These cases raise fundamental questions of first impression in this Commonwealth concerning the right to bail, the setting of bail and detention of an accused prior to his being brought to trial for a non-capital crime.*fn1

Both defendants in the instant cases are indigent. Both are accused of robbery and the testimony adduced at their bail hearings indicated that there is a substantial question as to whether they were properly identified by the victim.

After a hearing bail was set for appellant Tucker at $3,000 and for appellant Ford at $1,000. The court however, failed to state reasons for its setting of bail in these amounts. Likewise, the Commonwealth did not indicate to the court why it felt that bail in these amounts was appropriate. Neither appellant, due to his indigency, however, has been able to meet bail. Consequently, they have been imprisoned in the Philadelphia County Jail since early March, 1969.

They now claim that the imposition of bail in these amounts operates to deny them their right to a non-excessive bail.

[ 215 Pa. Super. Page 209]

To deal with this case, two issues must be considered. (1) Do appellants have a right to bail; and (2) if so, was appropriate bail set by the lower court.

I

In considering an accused's right to bail, reference must be made to the Eighth Amendment of the Federal Constitution which provides: "excessive bail shall not be required . . ." No case has explicitly determined whether this clause has been incorporated by the Fourteenth Amendment's due process clause and is thereby binding upon the states.

The only case incorporating a section of the Eighth Amendment is Robinson v. California, 370 U.S. 660 (1962), which incorporated only the cruel and unusual punishment clause of that amendment. The United States Supreme Court, however, in Benton v. Maryland, 395 U.S. 784 (1969), has apparently repudiated the doctrine of selective incorporation of the Bill of Rights into the Fourteenth Amendment. "Our recent cases have thoroughly rejected the Palko notion that basic constitutional rights can be denied by the States as long as the totality of the circumstances does not disclose a denial of 'fundamental fairness.' Once it is decided that a particular Bill of Rights guarantee is 'fundamental to the American scheme of justice,' Duncan v. Louisiana [391 U.S. 145, at 149], the same constitutional standards apply against both the State and Federal Governments. Palko's roots had thus been cut away years ago. We today only recognize the inevitable." At 795.

The requirement that "excessive bail shall not be required" is deeply rooted in our jurisprudence and rests on the assumption that an accused should not be capriciously held in jail pending his trial. As such, the

[ 215 Pa. Super. Page 210]

Eighth Amendment is "fundamental to the American scheme of justice" and therefore is binding upon us.

It is unclear, however, from a literal reading of the Amendment whether bail is required in every instance. On its face, the Amendment only requires that if bail is set, it cannot be in an "excessive" amount. This reading would, of course, produce the extraordinary result, that a constitutional principle would be dependent upon a legislative act, detailing those instances when bail should be set. See Foote, The Coming Constitutional Crisis in Bail, 113 Univ. of Pa. L. Rev. 959 (1965).

Alternative interpretations of the Eighth Amendment are (1) that a court retains discretion to deny bail altogether on certain limited grounds and (2) that there is an absolute right to bail.

Professor Foote, who has written extensively of the history of the Eighth Amendment, concludes that the founding fathers intended to provide an absolute right to bail.

Nonetheless, the United States Supreme Court in Carlson v. Landon, 342 U.S. 524 (1952), stated that there is no such constitutional right. "The contention is also advanced that the Eighth Amendment to the Constitution . . . compels the allowance of bail in a reasonable amount. . . ."

"The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal

[ 215 Pa. Super. Page 211]

    cases bail is not compulsory where the punishment may be death. Indeed the very language of the Amendment fails to say all arrests must be bailable. We think, clearly here that the Eighth Amendment does not require that bail be allowed under the circumstances of these cases" (where the accused's release would threaten national security). At pp. 544-546.

It is apparent that even the justices who dissented from the majority opinion had no quarrel with the proposition that bail may be denied in some circumstances is appropriate. Justice Frankfurter, in a dissent in which Justice Burton joined, stated that "It would be unfair to Congress to deny that it followed the traditional concept of bail by making 'the danger to the public safety of (the accused's) presence within the community' a criterion for bailability." Justice Frankfurter's only criticism of the majority was that in applying this standard "the Attorney General has not exercised his discretion by applying the standards required of him. He evidently thought himself under compulsion of law and made an abstract, class determination not an individualized judgment." At pp. 563-564.

Mr. Justice Black in his dissent indicated that while bail might properly be denied in certain circumstances (capital cases), such action is inappropriate in deportation proceedings. "It is true bail has frequently been denied in this country 'when the punishment may be death'. I fail to see where the Court's analogy between deportation and the death penalty advances its argument unless it is also analogizing the offense of indoctrinating talk to the crime of first degree murder." At p. 557.

Mr. Justice Douglas the fourth dissenter based his dissent on grounds "deeper than the bail provisions of the Eighth Amendment," that is, his belief that the

[ 215 Pa. Super. Page 212]

    prosecution of appellants violated their First Amendment rights.*fn2

It is apparent, therefore, that Carlson stands for the proposition that an accused whose presence on the street would endanger the public safety may be held without bail prior to trial.*fn3

[ 215 Pa. Super. Page 213]

Moreover, Stack v. Boyle, 342 U.S. 1 (1951), indicates that an accused may also be held without bail if his presence at trial cannot be assured by requiring him to post a bail bond. Specifically, Stack dealt with Federal Rule of Criminal Procedure 46 (c) which provided that an accused's right to release before trial is conditioned upon his "giving adequate assurance that he will stand trial and submit to sentence if found guilty." Stack at 4. The Court stated that in proceedings under this Rule, the Eighth Amendment only proscribes bail "set at a figure higher than an amount reasonably calculated to fulfill this purpose." If the court finds that no amount of bail will deter an accused from jumping bail, then it follows that the accused may be held without bail.

If the Eighth Amendment is deemed to be carried over to the states under the reasoning of Benton v. Maryland, the States should not be required to set bail, under the Federal Constitution, in those instances where there is no federal constitutional requirement. "If the Constitution (imposes a duty on the States) it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." Bolling v. Sharpe, 347 U.S. 497 (1954). It would appear, therefore, that an accused does not have an absolute federal constitutional right to bail prior to trial.

There are, however, independent bail provisions in the Pennsylvania Constitution. Article I, § 14 provides that "All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident

[ 215 Pa. Super. Page 214]

    or presumption great; . . ." Article I, § 13 provides that "Excessive bail shall not be required, . . ." Both provisions were originally in the State Constitution of 1790, as well as the Constitution of 1776.

These sections have never been interpreted to mean that there shall be an absolute right to bail in all non-capital cases. Indeed, the only authority delineating their scope is Supreme Court Rule of Criminal Procedure 4002, which makes the setting of bail a matter of court discretion.*fn4 Thus, Article I, § 14 which provides that "all prisoners shall be bailable by sufficient sureties" must be interpreted to apply only in those instances where bail is appropriate. Two considerations are paramount in considering the appropriateness of bail.

First, it has traditionally been thought that bail must serve as an incentive to require the appearance of the accused at his trial. Our Supreme Court in adopting Rule of Criminal Procedure 4005 stipulated that "The amount of bail shall be such as to ensure the presence of the defendant, and shall be determined according to, but not solely upon, the following criteria: (1) The nature and circumstances of the offense and the stage of the prosecution then existing; (2) The age, residence, employment, financial standing and family status of the defendant; (3) Defendant's character, reputation and previous criminal history; and, (4) Defendant's mental condition."

The inference to be drawn from these criteria is that if no amount is sufficient to ensure the defendant's presence, bail procedures should bar his release.

[ 215 Pa. Super. Page 215]

In such circumstances high bail, which is beyond the means of the accused, is not excessive under Article I, § 13 because it accurately reflects the risk that the accused will not appear at trial. The analysis supporting this point is, of course, identical to that in Stack v. Boyle, supra.

Second, the concept has been advanced that a court may detain an accused without bail to prevent his committing further dangerous acts. Although no Pennsylvania case either endorses or rejects this principle, I believe that the analysis in Carlson v. Landon, supra, although not controlling supports this conclusion.

Specifically, the thought inherent in Carlson is fully expressed in Justice Frankfurther's dissenting statement that "the danger to the public safety of (an accused's) presence within the community is a criterion for bailability." Carlson indicates therefore that detention in such circumstances is a factor that has been traditionally incorporated into our notions of a workable system of criminal justice.*fn5

[ 215 Pa. Super. Page 216]

Moreover, "It has been suggested that the public interest in protecting persons and property is as great as the interest in protecting the administration of justice and that it is unreasonable to say that only the latter may be protected through pretrial detention. The distinction between denial of bail to prevent flight and denial to prevent other criminal conduct, it is argued, is misleading: both involve detention before conviction based on predictions as to future unlawful conduct; both equally merit the description 'preventive detention,' and both are in the same position with respect to due process." Note, Preventive Detention Before Trial, 79 Harv. L. Rev. 1489 (1966).

This view has been criticized on the basis that there is a significant difference between these two purposes which weighs in favor of allowing a court to refuse bail only when there is a significant danger that the accused will fail to appear at his trial: "The public interest in the prevention of dangerous acts is great, but there is an established method of protection against such acts: the threat of sanctions imposed through the criminal law." Note, Preventive Detention Before Trial, supra. This distinction is fallacious, however, because

[ 215 Pa. Super. Page 217]

    the same criminal sanctions exist when an accused jumps bail and when he commits a crime while on bail. In the latter instance, he will be separately charged and tried for that offense. In the former instance, however, the accused is likely to receive a more severe sentence following his conviction because of his jumping bail. Foote, The Coming Constitutional Crisis in Bail, supra. Thus, in both instances, criminal sanctions operate to deter the criminal act.

In addition, it seems to me that there is the same degree of difficulty in predicting when an accused will jump bail as in predicting when he will commit a future crime if bail is set.

Further, detention based upon a person's dangerous propensities is sanctioned in other areas of the law, "A prediction of future dangerous conduct forms the basis for confinement in a number of civil proceedings, such as commitment of the mentally ill, of sexual psychopaths, and of defective delinquents. Commitment statutes for sexual psychopaths and defective delinquents are designed to protect society by confining for an indeterminate period certain offenders who have shown a course of habitual misconduct, and to provide these offenders with medical treatment for their cure. . . . The constitutionality of these statutes has been upheld against attack on equal protection grounds, the courts holding that the legislature could define a class presenting a special danger if the classification were based on reasonable and substantial distinctions and were in accord with the aims sought to be achieved." If it is determined that danger of repeated criminal acts is "greater in the case of defendants awaiting trial than in the case of other potential offenders, an analogous civil proceeding to provide preventive detention before trial might be acceptable." Note, Preventive Detention Before Trial, supra.

[ 215 Pa. Super. Page 218]

Such findings can of course be made. It is true that "predictions of the kind relied upon by the proponents of preventive detention are likely to be unreliable. Predictions of human conduct are difficult to make, for man is a complex entity and the world he inhabits is full of unexpected occurrences. Predictions of rare human events are even more difficult. And predictions of rare events occurring within a short span of time are the most difficult of all. Acts of violence by persons released while awaiting trial are relatively rare events (though more frequent among certain categories of suspects), and the relevant time span is short. Accordingly, the kind of predictions under consideration begin with heavy odds against their accuracy." Dershowitz, Preventing "Preventive Detention", New York Rev. of Books, vol. XII, No. 5, March 13, 1969. For similar expressions see Professor Dershowitz's testimony before the United States Senate Subcommittee on Constitutional Rights of the Committee on the Judiciary, Thursday, January 23, 1969. Hearings p. 172 et seq.

Nonetheless there are certain individuals whose past record reflects that they are habitual criminals, unrestrained, amoral, and without conscience or regard for the consequences of their acts. These individuals, while few in number, are often recognizable by judges and fall within the class of persons referred to as criminal sociopaths. Representative histories of such cases are available in the files of the Philadelphia Police Department. They portray individuals who repeatedly within short periods of time commit the most vicious crimes of violence. It is this class of persons which represents a predictable threat to the community.

In this light, it is impossible for me to conclude that absent a clear indication to the contrary, the Pennsylvania Constitution meant to exclude detention of dangerous persons under all circumstances.

[ 215 Pa. Super. Page 219]

However, since preventive detention is necessarily founded upon a nonprovable assumption that the defendant will commit a future crime, it should only be invoked when the community's interest is sufficient to override the generally repugnant policy of imprisoning a defendant for a crime he did not yet nor may ever commit.

Three preconditions, in my opinion, therefore, must be met before such detention becomes appropriate:

First, since an accused is entitled to a presumption of innocence until he has been found guilty, the Commonwealth must prove by clear and convincing evidence that the accused is highly likely to commit criminal acts if released and that he has committed the crime for which he is charged.*fn6

Second, that these crimes would seriously physically endanger the safety of members of the community.*fn7

[ 215 Pa. Super. Page 220]

Third, that the less restrictive alternatives of: (a) prohibiting the defendant from approaching or communicating

[ 215 Pa. Super. Page 221]

    with particular persons or classes of persons, except that no such order should be deemed to

[ 215 Pa. Super. Page 222]

    prohibit any lawful and ethical activity of defendant's counsel; (b) prohibiting the defendant from going to

[ 215 Pa. Super. Page 223]

    certain described geographical areas or premises; (c) prohibiting the defendant from possessing any dangerous weapon, or engaging in certain described activities or indulging in intoxicating liquors or in certain drugs; (d) requiring the defendant to report regularly to and remain under the supervision of an officer of the court, would be inefficacious. See American Bar Association, Project on Minimum Standards for Criminal Justice, Standards Relating to Pretrial Release, March, 1968, Tentative Draft, (Hereinafter A.B.A., Pretrial Release), section 5.5.

[ 215 Pa. Super. Page 224]

These determinations, as well as the decision to hold an accused who presents an undue risk of failing to appear for trial, without bail, however, can only be made by a court after a full and complete hearing wherein the accused is given the right to counsel, the right to cross-examine and confront witnesses against him, and the right to present evidence on his own behalf. This is necessitated by the consideration that the accused's freedom, albeit for a limited time, is at stake and depends on a fact determination independent of whether he committed the crime for which he is charged.

Specht v. Patterson, 386 U.S. 605, is particularly illuminating in this regard. In Specht, the court considered whether a convicted rapist is entitled to notice and a full and fair hearing when the state attempts to sentence him to an indeterminate term under a sex offender's act designed to protect the public from "threat of bodily harm".

The Court held that since the imposition of sentence under the sex offender's act was "a separate criminal proceeding" from the actual trial wherein appellant's guilt was adjudicated, appellant was entitled to "all those safeguards which are fundamental rights and essential to a fair trial, including the right to confront and cross-examine the witnesses against him." Quoting from U. S. ex rel. Gerchman v. Maloney, 355 F. 2d 302, 312 (3d Cir.).

The court likened commitment under the sex offender's act to imprisonment under an habitual offender act, which in turn is similar to preventive detention prior to trial. In all those instances, as well as when an accused is denied bail because of fear that he will fail to appear for trial, the commitment is designed to prevent future criminal conduct. The predictability of such actions is distinct from the question of the accused's

[ 215 Pa. Super. Page 225]

    guilt or innocence of any crime for which he may have been charged. Accordingly, the reasoning in Specht indicates that refusing bail to an accused can only be done after a full hearing.*fn8

Similarly, if the court purposely sets bail at an amount that the accused cannot be expected to meet, this would be equivalent to a denial of bail to the accused since it results in his continued confinement. This, of course, is not an uncommon phenomenon. "In some cases . . ., bail is deliberately set out of the reach of the defendant because of the fear that he would commit crimes if released." A.B.A. Pretrial Release. In this circumstance, too, the accused would be entitled to the procedural safeguard of a full hearing.*fn9

Due process, it seems to me, also requires that if an accused is held in jail continuously, prior to trial, the Commonwealth is under a duty to alleviate the obvious hardships that result. For instance, while confined in jail, "1. The accused is not free to assist in the preparation of his case and the location of witnesses. 2. The

[ 215 Pa. Super. Page 226]

    conditions [for defense counsel preparing him] for trial are not satisfactory. 3. . . . [T]he accused will waive his right to trial by jury to obtain a more prompt hearing. 4. . . . [T]he accused [will have less an] opportunity to choose his own lawyer. 5. The accused is exposed to bad jailhouse advice. 6. There is an adverse effect on the personality and morale of the accused as a result of 'jailhouse depression.' . . ." Altman and Cunningham, Preventive Detention, 36 G.W.L. Rev. 178 (1967). The accused, therefore, should be brought to trial as promptly as possible. Sixty days, in my view, is adequate time to prepare for trial and the appellant should be tried within that time. As an operative principle, therefore, I would require such speedy trials, barring extraordinary circumstances. Moreover, during the confinement of an accused prior to trial, he should likewise be entitled to secure witnesses in his behalf. If his personal participation is essential and proper controls can reasonably be made available, supervised temporary releases might be advisable.

II

If, however, the court determines that an accused should be released pending trial, "Money bail should be set only when it is found that no other conditions on release will reasonably assure the defendant's appearance in court." American Bar Association, Project on Minimum Standards for Criminal Justice, Pretrial Release, Section 5.3(a).

In the vast majority of cases, and in all cases involving indigents, who are judgment proof, the posting of bail by an accused has little effect on his decision to appear at trial. The amount forfeited in most instances is of a minimal nature, and requiring that bail

[ 215 Pa. Super. Page 227]

    be posted acts more to inconvenience the accused, than to advance any legitimate interest of justice.*fn10

Thus, as an operating principle I would find bail irrelevant to the release decision unless an accused has substantial assets which he would forfeit if bail were required and he jumped bail. Requiring bail in that instance would not discriminate against the accused so as to deny him equal protection of the laws. Rather, the accused's ability to post a substantial bond works in his favor as he is able to present an additional factor which would indicate that he would appear for trial. Accordingly, the court would be less hesitant to keep him imprisoned prior to trial. Nor does this formulation deny the indigent equal protection of the laws. His inability to post bond is a factor which does bear on his likeliness to appear for trial. I can think of no reason, therefore, why this is not as much a legitimate factor to be considered by the court in making a release decision as those other factors which are specified by Pennsylvania Rule of Criminal Procedure 4005 such as an accused's residence, employment and family status.

Moreover, if a court determines that money bail within the accused's means, is appropriate, the amount

[ 215 Pa. Super. Page 228]

    of bail specified should bear a reasonable relationship towards furnishing an incentive to the accused to appear for trial.

This is, however, not done in those instances where the court expects the accused, who is unable to post collateral, to resort to a professional bail bondsman. ". . . Where the bondsman writes bonds on credit and without collateral (or if an accused can only pay a premium), no real risk of immediate financial loss deters the defendant from fleeing. The indemnity agreement usually required by the bondsman represents in these cases nothing more than the defendant's personal recognizance. The bondsman's practice has effectively negated the judge's bail setting, and the defendant might just as well have been released by the court on personal recognizance. Where the bondsman demands full collateral, he may frustrate the bail setting if the judge assumed that only the payment of a premium would be required. Where the bondsman absolutely refuses to write a bond no matter what the circumstances, the whole bail system is undermined." A.B.A., Pretrial Release at 62.

In the same vein, Judge Bazelon in his dissenting and concurring opinion in Pannell v. United States, 320 F. 2d 698 (D.C. Cir. 1963) noted that in the instance where the bondsman does not require collateral from an accused then the accused once set free on bail "has no real financial stake in complying with the conditions of the bond, regardless of the amount, since the fee paid for the bond is not refundable under any circumstances. Hence, the court does not decide -- or even know -- whether a higher bond for a particular applicant means that he has a greater stake." See also Note, Bail Reform in the State and Federal Systems, 20 Vanderbilt L. Rev. 948 (1967).*fn11

[ 215 Pa. Super. Page 229]

Given the above, I do not believe that the administration of justice profits from its current reliance on

[ 215 Pa. Super. Page 230]

    bondsmen. It has been suggested that bondsmen facilitate the recapture of those who jump bail. Even accepting this contention arguendo, however, on balance with our concern for constitutional rights, we should not sanction professional bounty hunters who are unrestrained by constitutional limitations. Such a task is more properly the concern of the police.

When the practice of turning to bail bondsmen was first instituted in the 19th century, police departments were inadequate, ill-equipped and ill-trained; cooperation

[ 215 Pa. Super. Page 231]

    between different jurisdictions was minimal; there was no body similar to the Federal Bureau of Investigation which had the power to cross state borders in pursuit of escaped felons; and communications between points separated by great distances was poor. Accordingly, there was considerable advantage to making use of the bail bondsmen who would "track down" those who jumped bail. Moreover, since the police were relatively unrestrained constitutionally, there was no policy basis on which to express a preference for police action rather than the action of a private citizen.

Conditions and times have changed, as have our views of constitutional requirements. Police today are better qualified than in the past, and are certainly more qualified than is the modern bondsman to locate and recapture an accused who has jumped bail. With the advent of the F.B.I., sophisticated technical advances, training of police and the establishment of professional police forces, the police have a decided advantage over the bondsmen in their ability to locate an accused who has jumped bail.

In this light, the modern professional bail bondsman must be considered an anachronism who makes no constructive or necessary contribution to the administration of criminal justice.

As the legislature has refused, by its silence, to endorse the principle of the professional bail bondsman, it seems to me that this phase of the administration of justice is properly the subject of judicial action.*fn12

Although formidable, this task has been eased considerably by the fine study by the American Bar Association's Project on Minimum Standards of Criminal

[ 215 Pa. Super. Page 232]

Justice under the leadership of Judge LUMBARD. That Project which until recently was headed by Mr. Chief Justice BERGER, recommended the following institutional changes to effect the above stated goals. As these standards are the result of a great deal of research and have been formulated by some of the finest observers of criminal justice in this country, there repetition at length in this opinion is warranted.*fn13

In addition to the principles already set forth in Pennsylvania Rule of Criminal Procedure 4005, the Project recommends that "5.3(c) Upon finding that money bail should be set, the judicial officer should require one of the following: (i) the execution of an unsecured bond in an amount specified by the judicial officer, either signed by other persons or not; (ii) the execution of an unsecured bond in an amount specified by the judicial officer, accompanied by the deposit of cash or securities equal to 10 percent of the face amount of the bond. The deposit, less a reasonable administrative fee, should be returned at the conclusion of the proceedings, provided the defendant has not defaulted in the performance of the conditions of the bond; or (iii) the execution of a bond secured by the deposit of the full amount in cash or other property or by the obligation of qualified, uncompensated sureties.

"5.4 No person should be allowed to act as a surety for compensation. In any action to enforce an indemnity agreement between a principal and a surety on a bail bond it should be a complete defense that the surety acted for compensation. No attorney should be permitted to act as surety on a bail bond."

[ 215 Pa. Super. Page 233]

Traditionally and for all practical purposes, appeals from the setting of such bail have, in most instances, been fruitless. The many months required to prosecute an appeal will often render the decision therein moot since the appellant will have been brought to trial in the intervening period.

This procedure needs reform. The bail system has only furnished the semblance of protection which upon close study is no protection at all. We cannot be so cavalier with people's liberties.

Therefore, I have outlined a procedure which preserves the rights of the accused. I believe that my suggestions are warranted by our state and federal constitutions and by the case law. These suggestions, in contrast to the present haphazard and loosely applied bail system, encompasses current constitutional concerns for protection of the accused and fundamental notions of fairness.

I believe that they will have the salutary effect of releasing the great many persons who are currently incarcerated pending trial who present no substantial predictable threat to either commit crimes of violence or to fail to appear at trial if bail within their means is set.

On the other hand, I recognize that the public must be protected from those sociopaths who present real and acute threats to the community were they to be released pending trial.

Thus, a judicially enunciated policy of pretrial detention with adequate procedural safeguards will have a limiting effect, reserving pretrial detention only for those persons whose pretrial detention is appropriate. In short, I am asking for a replacement of reliance upon questionable judicial intuition by reliance upon critical judicial examination and appraisal.

In summary, my proposal is as follows:

[ 215 Pa. Super. Page 235]

Defendants who present a substantial threat to commit future crimes of violence or those who are clearly and convincingly likely to fail to appear at trial if bail which is within their means is set are properly the subject of preventive detention prior to trial.

Pretrial detention, however, should only be utilized in extraordinary circumstances when no other controls are feasible. Moreover, before such detention can be imposed I believe it necessary to afford the accused a full and fair hearing at which time he should be informed of the grounds which the Commonwealth believes warrant his detention prior to trial. He should have the opportunity to cross-examine and confront witnesses against him and present evidence in his own behalf. If after this hearing, the lower court believes that his detention is advisable and in accordance with the principles set forth in this opinion it should make on the record findings which are subject to appellate review.

Further, unless there be extenuating circumstances, the accused should be brought to trial within sixty (60) days of his detention and efforts should be made to alleviate the hardships he suffers during his confinement prior to trial.

In all other instances an accused should be released pending trial, although certain limitations may be placed upon him by the court.

In those instances where an accused is released pending trial, his release should not be predicated upon his posting a refundable financial bond unless this would substantially improve the chances that he would appear for trial. In such instances, bond should be posted with the court without the aid of a compensated surety.

With respect to the appellants now before us, the record is devoid of findings by the lower court which

[ 215 Pa. Super. Page 236]

    


*fn1 Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 (1963) was concerned solely with the right to bail in capital cases which is subject to a distinct state constitutional principle. Commonwealth ex rel. Goodfellow v. Rundle, 203 Pa. Superior Ct. 419, 444, 201 A.2d 615 (1964), rev'd on other grounds 415 Pa. 528, 204 A.2d 446 (1964), in dictum states that "the defendant should be admitted to bail for appearance at his retrial on the charge for which he was sentenced, unless he is lawfully detained on another sentence or charge." This passage can hardly be considered definitive or even to import an absolute right to bail in non-capital cases. Rather, it merely elucidates that a prisoner granted a new trial is accorded the right to bail, without defining the parameters of that right. This latter consideration was plainly beyond the scope of the questions before the court.

*fn2 See also Carbo v. United States, 82 S. Ct. 662 (1962), where Mr. Justice Douglas sitting as a Circuit Court judge denied bail pending an appeal following appellant's convictions for racketeering, extortion, and conspiracy. Although he found that there was a "substantial likelihood" that the appellant would be granted a new trial, Mr. Justice Douglas held, nonetheless, that since releasing the appellant would result in the probability of danger to witnesses he may be properly held without bail.

Similarly former Chief Justice Warren, sitting as a Circuit Court judge, stated in Leigh v. United States, 82 S. Ct. 994, 8 L. Ed. 2d 269, 271 (1962) (which dealt with bail pending appeal) that "[bail] is to be denied only in cases in which, from substantial evidence, it seems clear that the right to bail may be abused or the community may be threatened by the applicant's release." See Painten v. Commonwealth of Massachusetts, 254 F. Supp. 246 (1966) for a compilation of cases dealing with this issue.

*fn3 Stack v. Boyle, 342 U.S. 1 (1951), which was decided four and one half months before Carlson, does not conflict with the conclusion reached therein. In Stack appellants were arrested on charges of conspiring to violate the Smith Act, and bail was set in the uniform amount of $50,000 for each petitioner. Petitioners moved to reduce bail on the ground that bail as fixed was excessive under the Eighth Amendment.

The Court considered appellant's claim as arising under Federal Rule of Criminal Procedure 46(c) which conditions the right to release before trial solely on the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. In this context the court held that the Eighth Amendment requires that bail which is excessive to facilitate this statutory purpose is unconstitutional and the case was remanded to the lower court so that a hearing could be held for the purpose of fixing reasonable bail. Accordingly, the court never reached the question of preventive detention and the "conclusion (the Eighth Amendment secures an absolute right to bail in non-capital cases) is not supported by the holding in Stack v. Boyle." Note, Preventive Detention Before Trial, 79 Harv. L. Rev. 1489 (1966). Indeed, "Most cases . . . refer to the right to bail, if any, as statutory in origin." Altman and Cunningham, Preventive Detention, 36 G.W.L. Rev. 178 (1967). See Greenwood v. United States, 219 F. 2d 376, 386 (8th Cor.), aff'd, 350 U.S. 366 (1956), Hudson v. Parker, 156 U.S. 277, 285 (1895).

"No system of jurisprudence has ever required that its law enforcers always sit back and wait until the spear has been thrown, or even until the gun has been loaded. Societies have differed in their techniques of crime prevention, but for centuries people throughout the world have been imprisoned 'to protect society from predicted but unconsummated offenses.' . . . ." Dershowitz, Preventing "Preventive Detention," New York Rev. of Books, vol. XII, No. 5, March 13, 1969.

Commentators have also noted that "the bondsman exercises little control over the accused; although he may occasionally recapture a defendant who has jumped bail, the police could do this as effectively." Note, Preventive Detention Before Trial, supra. "In original theory the bondsman served to maintain close contact with the defendant in order to deter his flight. In urban communities this is now seldom true. The D.C. bail study reports that bondsmen make little effort to stay in contact with their clients pending trial."

*fn12 In this regard, it should be noted that the Act of May 12, 1921, P. L. 548, § 1, as amended, 19 P.S. 71, requires that deposits accepted in lieu of bail by courts of record must be made by "sureties approved by the said court." (emphasis added).

*fn4 Rule 4002 provides that an issuing authority may admit an accused to bail in "all cases as now provided by law." In those instances "where the issuing authority has no jurisdiction to admit to bail" then application may be made to a court for bail. A "court may grant appropriate relief where bail has been denied or excessive bail demanded (by an issuing authority)."

*fn6 See Testimony of Chief Judge Harold H. Greene, District of Columbia Court of General Sessions, before the United States Senate Subcommittee on Constitutional Rights of the Committee on the Judiciary, Tuesday, January 21, 1969, at p. 41.

*fn13 In this vein it is important to note that the Pennsylvania Supreme Court has adopted the Project's standards as they relate to guilty pleas. See Commonwealth v. Evans, 434 Pa. 52 (1969).


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