*1 legally prove antenuptial agree- sufficient to inment and under which Moore William waived all rights in his his wife’s estate.

Patricia next relies the third article of testa prove provided: trix’s will to her claim. Article Third though my “Even husband, William A. has Moore, Sr. considerately any stated that he does not want share my give Dreyfus my him estate, shares Fund, only any Inc.”* This was the reference in the towill alleged agreement between the testatrix and her hus concerning respective rights band their in each other’s estate.

Testatrix’s aforesaid declaration in Article Third of her implies, will does not aid Patricia Graff; it if anything, agreement there no was between the relinquishment parties by as to an absolute Moore of rights all his and to his wife’s estate.

Without Patricia doubt, Graff has failed to es- antenuptial agreement oral tablish an between her stepfather by mother clear convincing evidence. party pay Decree each affirmed; own costs. * only provision This was made the testatrix for her husband. Hartage, ex Appellant,

Commonwealth rel. Hendrick. *2 O’Brien, C. J.,

Before Jones, Cohen, Bell, Eagen, Pomeroy, JJ. Roberts Assistant J. Vincent Kairys, Defender,

David for petitioner. Defender, Ziccardi, Acting District Deputy Crawford, Attorney, D. James Attorney, Commonwealth, District Arlen Specter, respondent. A.

Edwin P. Edwin B. Borne, Wolf, Harry curiae. amicus Feldman,

Opinion 1970: July Justice Mr. Pomeroy, for babeas TMs case is before us petition jurisdic- of which we are to take original asked corpus tion. The petitioner inter petition asserts, alia, Amend- has been denied under the Eighth Ms rights the due of the Fourteenth Amend- ment, process clauses and the Sixth Amendment to the ment, Constitution The assertion on the grounded United States. constitutional proposition Ms nonexcessive right bail has been denied because the Constitution must bail in read “to can prohibit excess what petitioner afford.” It is also claimed that Ms bail set was “with- out of individual consideration pertinent circumstances his appearance at trial.” The probability pe- *3 tition states that the presented issues are of im- vital the Commonwealth portance throughout and should Court. alleges resolved this It by that can be ac- complished only through exercise of juris- original because claim diction, petitioner’s of unconstitutional “will . . detention . become likely moot before can be considered fairly by it tMs Court if he com- is to follow the pelled time-consuming appellate route Court to Superior through tMs Court.” He points of tMs out, support that statement, this is oc- what in Commonwealth ex curred rel. Ford v. Hendrick, 215 Pa. Ct. 206 Superior

A answer was filed on responsive behalf of the Com- in issue the monwealth, placing principal allegations to of the this a petition, reply was filed by peti- clear from these It is tioner. pleadings and the tran- of the proceedings lower scripts court, first at before the hearing bail committing magistrate, and on the at the habeas hearing corpus again petition, that on not presented behalf there were of petitioner or the facts relative to financial situation defendant’s at factors likelihood of appearance his bearing Pe- for us. trial which are now contained the petition inadequate,1 titioner admits the bail hearing that was asked con- corpus judge and that the habeas was not a to rule on the question duct but hearing, merely No raised non- question was as constitutionality. Rule 4005(a).2 Avith The Commonwealth compliance states in its that answer it “did not and does op- not consideration these factors pose [pertinent of defendant’s his probability appearance at trial, reply corpus petition Petitioner’s answer to his habeas states, hearings indigents additionally, before us that “Bail who virtually adequate.” cannot retain counsel are never Petitioner was represented by by not counsel but student law connected with the Pennsylvania Litigation Project University Bail of the Law present School, peti under the direction of counsel for only hearing tioner. The in the instant ease bail established petitioner prior “according our had no criminal record and representative’s] very information he can afford little [defendant’s contrast, 4005(a) of Proce bail.” In Rule our Rules of Criminal provides “The dure as follows: amount of shall be such as presence defendant, and shall be ac ensure determined solely following cording upon, (1) to, The criteria: but stage prose of the offense and the and circumstances nature existing; residence, (2) age, employment, The financial then cution standing family defendant; (3) status of the Defendant’s char previous history; acter, reputation and criminal Defend condition.” mental ant’s hearing petitioner represent corpus At below was the habeas complete hearing transcript present of that counsel. his ed The above matter came on “The Coubt : and was as follows: *4 May undersigned 13, on 1970. the Present were David before heard petitioner] Belsky Iiairys and Martin [Assistant [counsel petitioner Attorney]. for the the Counsel informed Court District testimony matter been taken in this had earlier before that testimony Judge concluded. was This was ex Reimel, only matter before plained us was the that con the Court requirements. stitutionality here not concerned of the bail AVe aspects. controlling On the basis testimonial with petition.” deny law, we or bail in reasonable alleged indigency] determining alternatives bail.”

On we are unable to agree this that record, petition er has demonstrated “the of the futility ordinary ap as he or pellate puts ju procedures,” it, original in Court risdiction this affords “the petitioner only relief from efficacious proper his unconstitutional detention.” That there are in grave connec problems tion the administration with system may but the granted, practical necessity adjudicating in issues this Court the first instance been has not shown. There is not sufficiently here the “imperative reason necessity apparent why expedition is desira ble or required,” this Court normally requires a habeas in order corpus proceeding with dispense of full the benefit and adequate consideration lower court. Commonwealth ex rel. Paylor v. Cloudy, 366 Pa. 77 A. 2d 282, 287, cf. Common (1951); wealth ex rel. Torrance v. Pa. Salzinger, 406 268, A. 2d cert. denied, U.S. 888 For us petition instant accept this most fac meager tual record would be to make it a vehicle for what think be, would effect, advisory opinion. We be an unwise of our would use jurisdiction original therefore powers. We will deny petition.

In so we do doing, not intend to minimize the seri- ousness problems connected with bail and pre- trial detention, particularly as applied to indigents. These have been problems receiving atten- increasing tion from legal writers, concerned organizations, various governmental bodies,3 but have yet received from attention adequate courts, no including doubt 3 Judge dissenting opinion exhaustive Hoffman’s in Common Hendrick, supra, Superior ex rel. Ford wealth 215 Pa. Ct. at much of and reviews the recent literature, summarizes as does Jus dissenting opinion, infra. tice Robebts’ *5 Ameri- The Standards of Pennsylvania. those Ap- Release, Pretrial Relating can Bar Association contribution excellent are an 1968, proved Draft, study careful on and deserve subject, this thinking field. this improvement of all those who wish to see recent other It with together may they, well be that should Pennsylvania, studies particularly pertinent of our bail expansion form of a the basis revision and Procedure of Criminal rules. Rules (Pennsylvania June effective 4001-4016, November adopted 22,1965, fashion, this 419 Pa. lxii.) Approached to all sec- subject in all its and with regard aspects first be considered tions would Commonwealth drawing by Committee, Procedural Rules Criminal see they such and assistance as might resources come this then fit. Their would recommendations so- pervasive Court. This to a and approach complex much to us sounder cio-legal problem appears in a ad hoc jurisdiction approach taking original case. particular denied.

Petition Opinion Dissenting Bell: Me. Chief Justice for favor very strongly petition origi- granting jurisdiction nal and the deciding vitally case therein issues raised on the merits. important on criminals who are out bail are jeop Dangerous safety lives ardizing law-abiding pub lic additional crimes. This by committing frightening made possible by situation is unrealistic mollycod on who release unrealistic bail Judges dling prisoners are accused ruthless thus them crimes, who enabling our citizens.* The endanger further present tidal * dangerous dangerous situation created The same when con- placed probation, being instead of criminals are realisti- victed cally sentenced. back of violent the enormous Court crime, plus

wave real and simi logs, mootness possibility lar enforce expeditious the obvious need cases, our ment of long-established* guideposts princi an im in the ples bail—or, alternative, governing *6 crimi mediate accused thereof further benefit change jurisdiction impera nals—make grant original tive!

To refer the Criminal Proce- this issue bail an im- dural Rules Committee study, with for further recommendation of in favor of ac- plied major changes cused is unwise. criminals, very, very

Virtually Judge subject is familiar with the every of bail—the problems present (so-called created by system strengths and and money-bail) weaknesses, its as as the necessity well keeping dangerous criminals off streets. this Court if Moreover, aided, is necessary, by numerous recent textbook articles, writ- and ings, analyses, reports as well as recommendations, several Court on the Opinions, issue bail.

It is we important our (1) reaffirm forthwith Rules were present which our recommended Crimi nal Procedural Rules Committee and adopted by Court made (and as effective) recently as June 1966, and likewise (2) re-emphasise those gmdelmes and which will principles (a) compel a likely person out on bail to appear trial, (b) and also properly pro tect the public against dangerous criminals** and “re- * Illinois, In Williams 399 U.S. S. Ct. the Court through speaking aptly Mr. Chief Justice Bueger, nei- said: “While antiquity practice legisla- ther nor a the fact of steadfast through judicial adherence to it tive and centuries it insulates attack, weighed these from constitutional factors should be in the balance.” ** passing note, Constitutionality, its without that Con- passed Judge just permitting gress Act a an has to detain without sixty days dangerous See, criminal after bail a arrest. District and Reform Criminal Procedure Court of Columbia Act of 1970. change promptly peaters” rule, our or alternative guidelines principles. and very alleges lit afford can that he who

Petitioner, petition for a of habeas a writ tle has filed bail,** (1) declare Un corpus, Court he asks this which money- indigents, especially as to constitutional, system long established so bail has been so recently person crime, accused of modernized favor provision or other condition some to establish pre money for his bail, whatsoever, trial release. principal bail for is that an

Petitioner’s contention every indigent because denies to it Unconstitutional, “equal pro poor person Constitutionally ordained ignores tection of the facts life, the law.” This would be Procrustean stretch unwarranted unequal Poverty possession wealth Constitution. many phases of life that Courts exist so and fields *7 money, a cannot lack without de more, make mere of equal protection of nial of law.* the the The of and the Con- Constitution United States Pennsylvania, presumption stitution of well as as persons require of innocence before ac- conviction, (as unimprisoned of cused crime can and should be may be) imprisonment the situation released from be- entry appropriate fore trial of which bail, money-bail system must not be The excessive. as it today espe- prisoners, exists has often been unfair cially prisoners money poor, but who bail is not required by sole bail and exclusive hind the Con- of Constitutionally required stitution. What is is bail proviso sureties, with a with the bail sufficient ** present $3,500. Petitioner’s bail is * Diffenbaugh, Interstate Commerce In Commission 222 U.S. 46) (page attempt said “The Mr. Justice : does law not Holmes opportunities fortune, equalize or abilities.” :o from Section be This is evident must excessive. not I of Pennsylvania,, Article the Constitution to be appear guilty who makes unbailable prisoners offense. capital Constitution Amendment Eighth The be bail United “Excessive** shall provides: States .” . . required. I of the Constitution

Sections 13 and 14 Article of Pennsylvania provide: 13. bail not be . . . required.

“Section Excessive shall 14. All be “Section shall bailable prisoners suffi- cient offenses sureties, capital unless when proof . .” is evident . presumption great; Or Rule of our Furthermore, 4005(a) of Criminal Rules Procedure as (adopted, as June repeat, recently 1966) the Constitutional and supplements provision clear furnishes and for the deter- adequate guidelines mination of reasonable and bail appropriate every case. Rule This provides: bail

“The amount of shall be to ensure such as presence shall be determined defendant, to, but not according solely upon, cri- following teria: The nature and (1) circumstances offense and the stage the prosecution then existing; (2) age, residence, financial employment, standing status family defendant; (3) Defendant’s char- acter, reputation previous criminal history’, Defendant’s mental condition.”

Justice Roberts states that “it should presumed that an accused entitled to be released on his own no recognizance”—meaning money and no sureties. *8 clear contrary This language Consti- tution. He then several lists alternate remedies for release. For Justice example, states Roberts could be “an accused released (1) into the care of a ** throughout, ours. Italics or

qualified person organization he re- would sponsible him accused and supervising assisting in making his court “an ac- appearances”; cused could be released under a ar- probation-type rangement he be whereby would responsible making regular contact with some official.” responsible As his first suggestion, realistically where could speaking, such qualified or persons organizations found to take care each and of, every year, more than several thou- sand accused and ofttimes dangerous criminals? As to his second suggestion, probation and parole officers are so few in number that this would likewise be un- very realistic. Likewise and unrealistic are equally his addi- tional or recommendations solutions that accused could be on released the condition he to com- agree with certain ply appropriate restrictions his activi- or that an ties; accused could be made to participate in a work-release-type program could be required live like a something “half-way house.”

In I find no short, merit in any petitioner’s con- tentions or in above-mentioned suggested in re changes bail.

The majority Opinion denies the petition for origi- nal rejects jurisdiction, the relief the petitioner asks but for, grants what he does not ask for and does not want. Although undoubtedly unintended, prac- tical effect of the majority Opinion, even more so of Justice Roberts’s Opinion, to create new uncer- confusion tainty this field of bail and further and/or of our jeopardize safety citizens and their protec- tion from criminals. dangerous

For these reasons, vigorously dissent. *9 by Dissenting Opinion Justice Koberts : Mr. Jurisdiction I—Original take Isaac that we Hartage’s request1 By denying a petition, of jurisdiction corpus his habeas original oppor- the Court has declined majority today this. cur- consider one of most tunity problems to the urgent majority criminal The our law rently system. facing that it offers the observation by way explanation necessity cannot find on record the “imperative this or re- desirable expedition reason apparent why Proce- and the stated that the Criminal quired”, hope the the dural Committee can better task perform Buies I can subscribe to neither abjured. has majority today from abdication of this rationale and must dissent this Court’s responsibility. the I believe that the fully peti-

Unlike majority, the futility tioner has demonstrated attempting channels”. “ordinary the proceed through appellate in the last time the issues raised were present petition the appellate the pursued through ordinary process, before rendered moot this Court could con- was appeal ex rel. Ford v. Hendrick, sider it. Commonwealth Pa. 257 A. 2d 657 believe Ct. Superior jurisdiction in the instant the test assuming fully case not be whether this has petitioner should other but whether he stands a exhausted his remedies, Hartage petition corpus, sup filed a Mr. has habeas replication by porting brief, and a answer filed the district support petitioner’s position attorney, amici brief in while Lawyers’ Bights Committee for been submitted Civil Un has Pennsylvania Program Law, Council Eastern der Con Church, Methodist the Board ference United of Directors Metropolitan Philadelphia, Conference of Christian Community Episcopal Pennsylvania, of the Diocese Services Meeting, Philadelphia Bepresentative executive of Year Society Beligious ly Meeting of Friends. reasonable chance of Court if getting he at- tempts proceed the usual fashion. Past experi- ence clearly indicates that he not stand does chance. Indeed, given the normal time our lag ap- pellate procedures, it is difficult imagine how this *10 question will ever come before us in “normal” fash- ion. For no such case has heretofore reached this Court and the merits, is silent on how majority any will ever litigant achieve Ford what did not, what has Hartage been today denied.

The problems which pretrial attend incarceration are truly I extraordinary, they believe that fully deserve response. thou- extraordinary Literally sands of of indigents, them innocent of many any are wrongdoing, today behind bars languishing because they cannot afford their money Every bail. day these thousands must a which undergo confinement has been imposed them without determination of any their or guilt innocence and without finding that any jailing them is the only method of their future assuring pres- ence in the courtroom. The assertion “expedition that is or not desirable is required” beyond my comprehen- these sion; numbers human men represent who beings, will continue to rigors suffer the im- an arbitrary prisonment majority because a this Court re- today fuses to confront this issue. I vexing have every hope that this practice wholesale indiscriminate will one imprisonment cease but day exist, hope is little comfort to those who this remain in our day purchase because cannot prisons they their release pend- determination their judicial ing innocence. guilt I express my disagreement must also with the ma- problem ripe assertion is the con- jority’s our Criminal Procedural sideration of Rules Commit- type bail, The amount tee. conditions ought individual any under be admitted which into matters. procedural What could bail, simply more be substantive than the decision as whether before an accused he has imprisoned should even seems me that apparent been It adjudged guilty? to determine substantive content it is this Court the Criminal of the to bail. Once that right decided, Committee does indeed have a valu- Procedural Rules role forth the manner in setting able play role no rights, but its an accused can assert his broader. problem gravity present-

Thus because of adjudi- difficulties and because practical ed, case other raised way issues cating take would original jurisdiction, grant for further jurisdiction and remit case pro- original this opinion. consistent with ceedings to Bail II—The Right *11 per- are constitutionally measures Pretrial coercive if insure an accused’s presence used to only missible 14 Article Section proceedings. I, subsequent legal at “All states: prison- Constitution Pennsylvania sureties, bailable sufficient unless shall be ers or presump- is evident when the proof offenses capital Court of United Supreme And great.” tion “The to before trial is right held: release has States adequate the accused’s assur- giving upon conditioned trial and will stand submit sentence that he ance ancient secur- . . . Like the practice guilty. if found persons stand sure- responsible oaths as ing the modern practice accused, for the requiring ties additional . serves as . . assurance bond a bail set accused. Bail at a figure of an higher presence calculated to reasonably amount fulfill ” under the Eighth Amendment ‘excessive* is purpose 72 1, 4-5, 1, U.S. S. Ct. 3 342 v. Boyle, Stack

597 in As Mr. noted added).2 Justice Jackson (emphasis in Ms 342 at 72 S. concurring opiMon Stack, U.S. 7-8, Ct. at 5: “The of admission has practice as it bail, in Anglo-American evolved is not a device law, in until it keeping persons jail mere accusation found convenient trial.”3 them a give There is little doubt, however, money as system, currently admimstered most this Com- not re- monwealth, operating accord with these quirements.4 It has been roundly condemned, do not propose to discuss its at shortcomings great 2 Menillo, 264, See also State v. 159 Conn. 38 U.S.L.W. 2575 Whitty (1970) ; State, 278, (1967) ; v. 34 2d 2d Wisc. 149 N.W. 557 People Ingram, (1966) ; v. Ill. 2d 34 217 N.E. 2d Matera Buchanan, (Fla. App. 1966) ; Court, So. Palmer 2d 18 v. District Colo. 398 P. 2d 435 any incomplete Since discussion of bail would be some without “preventive detention,” necessary mention of I feel it to note any purpose insuring presence detention for other than appear precluded by at accused trial would the above any decisional cited constitutional and authorities. In the least system “preventive require adversary detention” would full scale hearings arguably to be even constitutional. This would add a unnecessary heavy, already unwise and burden to our crowded seriously impair docket, ability criminal court and would proper problem— courts to achieve the solution our criminal speedy Why interpose prelimi trial. should a swift we these costly pretrial nary procedures, hearings, their extensive and with prosecutorial thereby judicial, divert substantial and defense prompt disposition manpower Further, from the criminal cases? pretrial adversary hearings even these how I do see can ac goal, complish is the differentiation their between those ac likely crimes, further to commit who are those cuseds who are my not, opinion, easily distinctions made with not. Such *12 accuracy. degree of 4 Philadelphia Project Foundation, Prog Bar Bail See September February 9, 8, (1967) Report, ; Foote, to 1966 1967 ress Bail, Coming Crisis in Constitutional 113 U. Pa. L. Rev. The 959 Appearance Compelling in ; Court: Administration (1965) Bail in (1954). L. Rev. 1031 Philadelphia, Pa.U. 102 598

length.5 suggest 6I like I believe would rather what general principles improving ad- be some for systems. ministration release presumed Initially, be an it should accused recognizance,8 be released on entitled to his own which only may specific, presumption on be overcome a finding there record is a substantial risk nonappearance.7 Only the least restrictive measures counterbalancing nonappear- consistent with the risk any given should be utilized case. ance As Project Bar American Association on Minimum Stand- study pointed for Criminal Justice has out in ards its on Pretrial alternatives indiscrimi- Release, money (1) utilization an nate numerous: qualified could be released into the care of a accused organization responsible person or for would be assisting supervising making the accused and him in appearances; (2) court an could his accused be released arrangement probation-type whereby a under he would responsible making regular for be contact with some (3) responsible official; accused could be released agree appropriate on the condition that he to certain (4) on activities; restrictions his an accused could be participate type program a made work-release required something “halfway could be to live like (5) required post an accused could house”; fi-a 5 Challenge generally, Society, See In of Crime a Free on Crime Commission Law President’s and Adminis Enforcement Justice, 1967, (1968) ; tration American Bar Association 131 Project Justice, on Standards Minimum Criminal Pretrial Be- Approved lease, Draft, 1968. See the Bail Beform Act ; U.S.C. §3146 Project Bar Association American Minimum Standards Justice, Belease, Commentary Criminal 5.1(a), Pretrial 5.1 and at Approved Draft, 1968. Sprowal ex Hendrick, rel. See Commonwealth 438 Pa. A. 2d 348 *13 nancial or bond;8 other reasonable program could be instituted.9 posting The American Bar Association recommends that the any required by

of bail bonds be administered the courts rather by professional system bail bondsmen. Such a would have flexibility, judicial fixing considerable since the bail officer the require bond, could either an unsecured or a bond secured in full by property, or, or cash other and this would be the most common type bail, of the execution of an unsecured bond for the full amount accompanied by property equal the of bail cash or in worth to ten percent variety of the full amount of the bail. In this last bail payment, appropriate the fee, down less administrative should proceedings be returned the at conclusion of the if the has accused not failed to fulfill the conditions his release. American Bar Project Justice, Association on Minimum Standards for Criminal Release, Commentary, Approved Pretrial Draft, §5.3 1968. advantages system obvious, The of such a are since the accused percent payment” would stand recover most of his ten “down complied if release, he with the conditions his rather than for- regardless feit the entire amount performance, of future as is the professional “skip case where bondsmen are used. The rate” under system actually professional by such a lower than that achieved (perhaps possibility regaining bondsmen because the some of the actually money paid exists). And, pro- for the further, bond the very rarely perform function, retrieving fessional bondsmen the they accused, theoretically paid. elusive for are which The FBI and police people really pick up ap- are who those who fail to rarely pear, bonds, then, even and the forfeited. federal Bail Reform §3146, pro Act of 18 U.S.C. vides, inter alia: Any charged “(a) person offense, with an other than an of- punishable death, shall, appearance ju- fense at his before a officer, pending personal be ordered released dicial trial his recognizance appearance the execution of an unsecured specified by judicial officer, amount bond in an unless the of- determines, discretion, in the exercise of his ficer that such a re- reasonably appearance person assure the lease will as made, required. judicial such determination When officer shall, of or addition to in lieu either above methods re- following impose lease, the first conditions release which appearance reasonably person assure or, will trial gives assurance, any single condition if no combination of the bail money prevalent precondition Since is now I feel it to add that it release, necessary be utilized no only should those instances can condition other, onerous, provide less the necessary assurance of Furthermore, subsequent appearance.10 in an clear- amount which is setting money *14 than a could ly higher given accused furnish is never If it no of is determined that amount appropriate. no bail which the accused can and money provide, following desig- place person custody (1) conditions: the in the aof organization person agreeing supervise place him; (2) nated or to place per- travel, association, restrictions on the or the of abode of during period require release; (3) the son of the execution of an appearance specified deposit regis- bond in a amount and the in the try court, security directed, in cash or other sum as of a per bond, not to exceed centum of the of such de- amount the posit performance to be returned the re- of the conditions of lease; require (4) the execution of a bail bond with sol- sufficient deposit impose sureties, thereof; or of cash in vent the lieu or reasonably necessary appear- other condition deemed assure to including required, requiring person ance as a condition the that custody specified to after hours. return determining “(b) In which conditions of release will reason- judicial ably appearance, shall, assure officer on of the basis information, take into account the nature and circum- available weight charged, against of offense of the evidence stances family ties, accused, employment, the accused’s re- financial length condition, sources, mental of his character residence convictions, community, ap- his of record and his in the record of proceedings flight prosecution pearance or of at court to avoid proceedings.” appear at court failure to Project, Manhattan Foundation's Bail The Vera which dealt exclusively those accused who could not with afford the bail set proceedings, “skip-rate” their course of achieved normal in the clearly percent, demonstrating of one seven-tenths of less that hardly assuring effective method of most an accused’s bail Wald, appearance. subsequent Freed and Bail in the United States: Report Rational Bail A and Criminal Conference Justice, 29, projects The success of the various “skip achieving largely rates” indicates low lack ade single appear. common most quate cause is the of failure notice will short of incarceration reasonable restriction other at subsequent pro- accused’s presence guarantee im- illusory not an incarceration, then ceedings, restriction. appropriate possible bail, prior to a deter- an accused imprisonment it costs is a rather awesome guilt thing: mination deprives it taxpayers money;11 tremendous sums freedom, individual of his most precious the affected it him- ability him his liberty; deprives support job; him his family; quite possibly self his it costs his own de- it restricts his ability participate him the subjects it dehumanization fense; prison; him from a trial, it his without separates family; and, him an aura of it casts over criminality guilt. unjustifiable deprivations These view especially of the fact those who are accused of many trial are crime and before jailed eventually acquitted. In over alone, twenty-five percent those Philadelphia accused who are trial are imprisoned eventu- prior *15 of all criminal more ally discharged liability, many in jail more spend prior accused time their trial than if would have had to had been released and they they all convicted sentenced.12 In these then tried, 11 Philadelphia alone, In cost of incarceration year prisoners per day (1,484 awaiting $5,000,000 trial each over per day). Complaint per Mandamus, cost of man in at a in $8.10 al., rel. v. ex Carroll Tate et Commonwealth filed in the Court of Philadelphia, Division, Section, Pleas of Trial Common Civil at Term, 3084, No. June 1970. 12 year of the Last about clients the Defender Associa 28% Philadelphia prior (“prison who were incarcerated tion of to trial discharged liability. cases”) criminal of all were See Directors of Philadelphia, Report, Association Annual June 34th Defender 1968, p. 30, Philadelphia 1, Over half to June 20 1967 discharged Project liability, of all clients were criminal Bail Bail Philadelphia Foundation, Progress Project Report, Bar Feb September 1967, p. 8, ruary 9, (1967), 20 and “. . . 1966 fewer percent ultimately required . .. were one one-half of serve

602 in those cases, especially instances from all criminal li- eventually accused is exonerated been the accused has made ability, punish- suffer ment of the harshest variety—imprisonment—without adjudication judicial even or the guilt, imposi- tion of a sentence.

I would remit matter of Common Court Pleas of for determination of the Philadelphia appro- release priate pretrial condition accordance with the set forth in this principles opinion.

Mr. joins Justice O’Bbien this dissent. approached a sentence that even the time that have would been Project functioning,” served had the not been id. at 14. See also Rankin, Detention, Pretrial 39 N.Y.U.L. Rev. Effect of (1964) (27 percent jailed convicted) ; defendants were Study Note, City, A the Administration Bail in York New (1958) (about percent jailed L. U. Pa. Rev. 726-27 discharged percent defendants were before trial and another at trial). Malis Lieberman et al., Appellants.