The opinion
Dissenting Opinion by
Me. Chief Justice Bell:
I very strongly favor granting the petition for original jurisdiction and deciding the case and the vitally important issues raised therein on the merits.
Dangerous criminals who are out on bail are jeopardizing the safety and the lives of the law-abiding public by committing additional crimes. This frightening situation is made possible by unrealistic or mollycoddling Judges who release on unrealistic bail prisoners who are accused of ruthless crimes, thus enabling them to further endanger our citizens. * The present tidal *590 wave of violent crime, plus the enormous Court backlogs, the real possibility of mootness in this and similar cases, and the obvious need for expeditious enforcement of our long-established * guideposts and principles governing bail—or, in the alternative, for an immediate change thereof to further benefit accused criminals—make the grant of original jurisdiction imperative!
To refer this issue of bail to the Criminal Procedural Rules Committee for further study, with an implied recommendation of major changes in favor of accused criminals, is very, very unwise.
Virtually every Judge is familiar with the subject of bail—the problems created by the present (so-called money-bail) system and its strengths and weaknesses, as well as the necessity of keeping dangerous criminals off the streets. Moreover, this Court is aided, if that is necessary, by numerous recent articles, textbook writings, analyses, reports and recommendations, as well as several Court Opinions, on the issue of bail.
It is important that we (1) forthwith reaffirm our present Rules which were recommended by our Criminal Procedural Rules Committee and adopted by this Court (and made effective) as recently as June 1966, and likewise (2) re-emphasise those gmdelmes and principles which will (a) likely compel a person out on bail to appear for trial, and (b) also properly protect the public against dangerous criminals ** and “re *591 peaters” or in the alternative promptly change our rule, guidelines and principles.
Petitioner, who alleges that he can afford very little bail, ** has filed a petition for a writ of habeas corpus, in which he asks this Court (1) to declare Unconstitutional, especially as to indigents, the money-bail system which has been so long established and so recently modernized to favor a person accused of crime, and (2) to establish some provision or condition other than money bail, or any bail whatsoever, for his pretrial release.
Petitioner’s principal contention is that bail for an indigent is Unconstitutional, because it denies to every poor person the Constitutionally ordained “equal protection of the law.” This ignores the facts of life, and would be an unwarranted Procrustean stretch of the Constitution. Poverty and unequal possession of wealth exist in so many phases and fields of life that Courts cannot make mere lack of money, without more, a denial of the equal protection of the law. *
The Constitution of the United States and the Constitution of Pennsylvania, as well as the presumption of innocence before conviction, require that persons accused of crime can and should be unimprisoned or (as the situation may be) released from imprisonment before trial upon the entry of appropriate bail, which must not be excessive. The money-bail system as it exists today has often been unfair to prisoners, especially to prisoners who are poor, but money bail is not the sole and exclusive hind of bail required by the Constitution. What is Constitutionally required is bail with sufficient sureties, with a proviso that the bail *592 must not be excessive. This is evident from Section 14 of Article I of the Constitution of Pennsylvania,, which makes unbailable prisoners who appear to be guilty of a capital offense.
The Eighth Amendment to the Constitution of the United States provides: “Excessive ** bail shall not be required. . . .”
Sections 13 and 14 of Article I of the Constitution of Pennsylvania provide:
“Section 13. Excessive bail shall not be required. . . .
“Section 14. All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident Or presumption great; . . .”
Furthermore, Rule 4005(a) of our Rules of Criminal Procedure (adopted, I repeat, as recently as June 1, 1966) supplements the Constitutional provision and furnishes clear and adequate guidelines for the determination of reasonable and appropriate bail in every case. This Rule provides:
“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.”
Justice Roberts states that “it should be presumed that an accused is entitled to be released on his own recognizance”—meaning no money bail and no sureties. This is contrary to the clear language of the Constitution. He then lists several alternate remedies for pretrial release. For example, Justice Roberts states (1) “an accused could be released into the care of a *593 qualified person or organization which would he responsible for supervising the accused and assisting him in making his court appearances”; and (2) “an accused could be released under a probation-type arrangement whereby he would be responsible for making regular contact with some responsible official.” As to his first suggestion, realistically speaking, where could such qualified persons or organizations be found to take care of, each and every year, more than several thousand accused and ofttimes dangerous criminals? As to his second suggestion, probation and parole officers are so few in number that this would likewise be very unrealistic. Likewise and equally unrealistic are his additional recommendations or solutions that an accused could be released on the condition that he agree to comply with certain appropriate restrictions on his activities; or that an accused could be made to participate in a work-release-type program or could be required to live in something like a “half-way house.”
In short, I find no merit in any of petitioner’s contentions or in any of the above-mentioned suggested changes in re bail.
The majority Opinion denies the petition for original jurisdiction, and rejects the relief the petitioner asks for, but grants what he does not ask for and does not want. Although undoubtedly unintended, the practical effect of the majority Opinion, and even more so of Justice Roberts’s Opinion, is to create new uncertainty and/or confusion in this field of bail and further jeopardize the safety of our citizens and their protection from dangerous criminals.
For these reasons, I vigorously dissent.
The same dangerous situation is created when dangerous convicted criminals are placed on probation, instead of being realistically sentenced.
In Williams v. Illinois, 399 U.S. 235 , 90 S. Ct. 2018 , the Court speaking through Mr. Chief Justice Bueger, aptly said: “While neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack, these factors should be weighed in the balance.”
I note, without passing upon its Constitutionality, that Congress has just passed an Act permitting a Judge to detain without bail a dangerous criminal for sixty days after arrest. See, District of Columbia Court Reform and Criminal Procedure Act of 1970.
Petitioner’s present bail is $3,500.
In Interstate Commerce Commission v. Diffenbaugh, 222 U.S. 12 , Mr. Justice Holmes said (page 46) : “The law does not attempt :o equalize fortune, opportunities or abilities.”
Italics throughout, ours.