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This takes away that right. It also is not
clear from the language whether or not
the existing law, the common law in the
State that permits the person to be re-
leased on bail at the discretion of the
judge in capital cases, would apply.
I feel that this is restrictive in that
sense. For ,that reason I might point out to
you that the existing rules of course permit
bail in all cases, except capital cases, and
make it discretionary are far as capital
cases are concerned.
I say that the Committee Report seems
to say that they assume that with this lan-
guage you will still have the existing rights.
It would still be discretionary in capital
cases, and you will have all the existing
rights, but I urge upon you that there is
gTave question, whether you can have your
cake and eat it too, in this situation.
Once you start spelling it out specifically
it would seem to me it would exclude any
other rights that you have today.
I think I would go along with this if it
were broadened, but I think you are very
much limiting the right which we do enjoy
today by this section.
I might also point out that today, if you
have the funds, you can get out on bail.
This would mean that if you have the
funds in the future, the judge could refuse
to permit you to have bail if for some other
reason he did not want you to get out, which
is good in some respects, but not so good
in others; and I can see it abused in several
instances.
Thank you.
THE CHAIRMAN: The Chair recognizes
Delegate James for three minutes.
DELEGATE JAMES: Mr. Chairman, fel-
low delegates, I have been very much in-
terested in this subject since I began the
practice of law in 1937.
I helped get a bill through the legislature
before I even became a member, which pro-
vided for a waiver of indictment and trial
on the presentation of information. My
observation as a practicing lawyer and as a
trial magistrate over this period is that
one of the most discriminating things in
the administration of justice is the require-
ment of bail or the alternative of incar-
ceration.
This certainly means that justice must be
administered upon an economic basis, and it
defies the idea that every man is equal be-
fore the law.
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We have been making some progress in
this area. I initiated a bill before the Legis-
lative Counsel several years ago, which ulti-
mately was passed, to provide for release
upon a man's own recognizance in a proper
case. Prior to that the Court of Appeals
passed a rule, but the Court of Appeals
rule only applied to the Circuit Court. The
real problem is before the courts of limited
jurisdiction.
One of the problems in the administration
of justice in the lower courts, even with the
statute, is that because we have an in-
efficient system of administration of the
court system, many of the judges simply
pay no attention to the statute.
Now, if we had a constitutional provision
which would really in a sense recognize our
present practice, it would make the right
of release more prominent, and at the same
time reserve to the court the right to fix
reasonable bail where it became necessary
to require the person to appear. It seems
to me that it would become imprinted upon
the mind of all courts regardless of the ad-
ministrative system that this was a right,
of course subject to discretion, but a right
to be utilized in a reasonable manner.
And I feel that it would provide a con-
stitutional barrier against discrimination
upon an economic basis.
THE CHAIRMAN: Delegate Child.
DELEGATE CHILD: Mr. Chairman, I
allot five minutes to Delegate Sherbow.
THE CHAIRMAN: Delegate Sherbow.
DELEGATE SHERBOW: Mr. Chairman,
ladies and gentlemen, I hope that you will
vote for the Minority Report, or rather for
the amendment.
All that the majority seeks to do is ex-
cellent but ought not to be written into the
constitution as badly — and I use that word
very, very carefully — as badly as section
5-B is written.
Let me start at the very beginning.
Even in capital cases bail is permitted,
and I assure Delegate Bennett that writs
of habeas corpus for this purpose are not
restrictive where a defendant is concerned,
because this is almost routine, certainly in
Baltimore City. There are many instances
involving capital cases where a wife in
defending4 herself may have killed someone
and the courts will release her even on her
own recognizance.
Now, we have a statute. It is an excellent
statute. I commend that the legislature has
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