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decided: September 11, 1969.


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.


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.


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.


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 ...

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