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If the answers to those first two ques-
tions are yes, then the judicial officer is
going to have to make a determination as
to how he best can assure that this individ-
ual will appear before him at the time set
for proper examination.
Now, this is not adjudication of guilt or
innocence. It is merely a determination of
reasonableness or probable cause.
It is not really that. It is in substance a
value judgment at this time. A formal
determination of probable cause, can be
and usually is made at a later date, when
this individual appears before the judicial
officer. .
At that time, he most likely will be rep-
resented by counsel. At that time, he can
make a representation as to his innocence
or his non-connection with the alleged
crime, or the argument that no crime has
in fact occurred.
There is no way for the judicial officer
under the provisions, as I see it, in section
5-B, to make this value judgment. He is
obliged to release this individual upon the
setting of a dollar figure. Bail is not in-
tended to be a form of punishment. It is
not intended necessarily to be a form of
protecting the public, although it docs work
that way.
A judicial officer has to make this con-
sideration whether he does it consciously
or not. It is a thing that he must consider.
He has to weigh to some extent the rights
of this individual, which must be protected,
with the rights of the public in general.
If the man is a menace to himself or
others, he has to make a judgment at that
time. Somebody has to do it. The judicial
officer has got to have that discretion or
the system will suffer as will the public.
(President H. Vernon Ency, resumed
the Chair.)
THE CHAIRMAN: Delegate Bothe.
DELEGATE BOTHE: Mr. Chairman, do
I understand that as the leader for the
majority report, we have fifteen minutes
of controlled time and that that will be the
only controlled opportunity to answer or to
speak to the many issues that have been
raised in connection with this recommenda-
tion ?
THE CHAIRMAN: That is correct.
DELEGATE BOT,HE: I will have to an-
swer a question that was asked of Judge
Child, and which we submit he answered
correctly.
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Delegate Clagett is concerned and cer-
tainly rightly, that the court would not
under any conditions be entitled to incarcer-
ate a person under the provisions.
That is absolutely not the intent of the
provision at all. The intent is that an ac-
cused be held subject only to those condi-
tions or terms, whatever they may be, and
incarceration may be one of them, which
will insure his appearance in court.
There is nothing in this proposal that
will prevent the court from exercising dis-
cretion in determining whether or not the
accused must be incarcerated or what terms
must be set forth in order to assure his
appearance.
It is merely the statement of a very
fundamental principle that no person shall
be held without justification. It is a very
personal right that we are talking about
here.
Judge Child mentions that he does not
feel that this is the kind of a thing that
the constitution should guarantee. I say
that it is the most important thing a con-
stitution can guarantee, and that is that a
person will not be picked up off the streets
and held in jail for an indefinite period, an
innocent person, a person who is presum-
ably innocent, for the simple reason that
he does not have the money to pay a pro-
fessional bondsman.
Now, I believe Delegate James was pre-
pared to say a few words on this situation
as it applies to the work of the General
Assembly, and I will allot him three minutes
for that purpose.
THE CHAIRMAN: I will come back to
you, Delegate Child.
DELEGATE CHILD: I will allot three
minutes to Delegate Groh.
THE CHAIRMAN: Delegate Groh.
DELEGATE GROH: Mr. Chairman, fel-
low delegates, my main reason for joining
in on this minority report is the following:
of course we do not have any constitutional
guarantee in the Constitution now as to a
right to bail. I feel that in putting in a
provision like this, we are establishing this
as a right. I feel that as a result the courts
will construe this as pre-empting the fed-
eral Constitution and because of that, I
think the language here is very limiting
in that, as you will note, the language does
not give the right in capital cases or in
life imprisonment cases.
Today you do have a right to bail where
the penalty might be life imprisonment.
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