*1 Penal Correctional Com- turned plex Nebraska period, pursuant Ne- for an indefinite respects, Sociopath Act. In all other Sexual braska trial court. affirm decisions we
Affirmed as modified. G. Terry Roth, Parker, appellant, v. Richard appellee. Douglas County, Nebraska, Sheriff 2d
278N. W. April 42561. No. Filed *2 Kenney, Douglas County Thomas M. Public De- appellant. fender, Hornstein, Bennett for and G. Smith, Sindelar, Smith Gooch, Sindelar & Tim curiae, Civil Nebraska Liberties for amicus Union. Terry Attorney General, Douglas, R. L. Paul Lynne Fritz; Hofmeister, Schaaf, Rae and Paul E. Douglas County Attorney, Knowles, L. Donald Meyer, appellee. Rockford G. J., Boslaugh, McCown,
Heard before Krivosha, C. JJ. White, Clinton, Brodkey, Hastings, (cid:127)Krivosha, C. J. Terry appeal appellant, Parker,
By G. attacks constitutionality I, section of Article Nebraska, as the same of the State Constitution people on November vote amended amendment). (1978 I, Article section *3 provides now as follows: Constitution Nebraska the by persons sureties, bailable sufficient shall be “All involving pene- except treason, offenses for sexual against by victim, of or the will the force tration presump- proof murder, or the the is evident where required, great. be bail shall not Excessive nor tion imposed, pun- fines nor cruel and unusual excessive inflicted.” The amendment added the ishment penetration involving by phrase offenses “sexual against or the of the victim” an will article force which has since the Nebraska Con- otherwise existed adopted. first For reasons set out was stitution herein, is in find that the 1978bail amendment all we respects the decision of the valid and we affirm Dis- County, Douglas denying Nebraska, trict Court bail appellant. constitutionality on the basis for his attack the As (1) appellant I, maintains of Article section That the excessive bail the 1978 bail amendment violates Eighth prohibition of Amendment United the (2) Constitution; 1978 bail amend- the States violates the Protection ment Clause of the Fourteenth Amendment to the United States Consti- (3) ap- tution; that the 1978 bail amendment violates pellant’s presumption protected by of innocence the Process Due to the United States Clause the Fourteenth Amendment (4)
Constitution; appellant’s rights bail amendment violates to the ef- pre- fective assistance counsel and to freedom to pare his under Sixth defense and Fourteenth Constitution; Amendments to the United States (5) that the 1978 bail amendment violates Cruel Eighth Unusual Punishment and Amendment Clause of the to the United States Constitution. purposes appeal
For the facts have been parties. stipulated by Therefore, no factual dis- April pute 21, 1978, exists. On L. B. 553 was enacted Legislature, by proposing, subject the Nebraska approval electorate, I, that Article section the Constitution of to further exclude State of Nebraska be amended persons charged
from with involving penetration by offenses “sexual force or proof against the will the victim” where the was presumption great. or the evident Prior to that time I, under Article section of our State Constitution only treason and murder were nonbailable offenses proof presumption where evident or the great. people 7, 1978, On November of the State duly proposed of Nebraska enacted the amendment opposed. 355,949 79,179 vote of favor and Appellant charged having in this case was subjected person penetration by another to sexual implied force, decep- force, threat of coercion or January Appellant, entering on tion after *4 plea nicipal guilty, sought of not on release bail. The mu- City Omaha, Nebraska,
court for the of de- request I, 9, nied on the basis that Article section permit of the Constitution Nebraska did not bail in a case this nature.
Appellant petition then filed a for writ of Habeas County, Douglas
Corpus,
District Court
in the
unlawfully
being
alleging
im-
Nebraska,
he
that
was
liberty by
deprived
of the
prisoned
virtue
of his
hearing,
Following
to set bail.
refusal
court’s
County,
Douglas
Nebraska,
con-
Court for
District
I,
of the Constitution
Article
section
that
cluded
appellant.
bail to
valid and denied
was
Nebraska
From that
appealed
denying
appellant has
bail
order
admitting
guilt, appel-
his
this court. Without
appeal
purposes
stipulated for
of this
has
lant
the
great
presumption
proof
or the
was evident
involving
appellant
a sexual offense
committed
against
penetration
of the victim.
the will
force
Supreme
has
of the United States
never
Court
The
Eighth
expressly
Amendment
to the Consti
held the
binding on the states
of the United States
tution
through
However,
Amendment.
the Fourteenth
e
Pilgrim,
156 N.
2d
182 Neb.
W.
w
v.
State
prohibition against
the federal
excessive
have held
applicable
See
v. Hed
to the states.
Mastrian
(8th
1964).
man,
Cir.,
We examine this
We turn I, of Nebraska violates section of the Constitution Eighth to the United States Consti- Amendment reading provisions tution. Neither a Eighth ry nor an examination histo- Amendment Europe, country bail, or in leads either urged by appellant. to the conclusion Eighth States Con- Amendment to the United provides “Excessive bail shall as follows: stitution imposed, required, fines nor not be nor excessive Nothing punishments inflicted.” unusual cruel and contained single sustain in that sentence can an required argument case. that bail is Appellant attention to an exten- has directed our subject by two-part sive, on the review article law Coming Foote, “The Consti- Caleb entitled Professor
855 II,” I Pa. L. Rev. tutional Crisis in Bail: and U. (1965). 959 and Professor Foote therein main- early English history early tains that bail and history inescapable bail American lead to the con- Eighth language clusion that the of the Amendment requires granting the of bail case. After arguments careful review of the contained in Profes- reviewing Foote’s law review sor article and the his- tory Eighth opinion Amendment, of the we are of the a conclusion that such cannot be reached.
Certainly plain meaning the of the words of the Eighth support position Amendment does not required appellant bail is in all that knowledges cases. Even ac- appellant argues:
this. In his brief capital exception possibly offenses, ‘‘With the of and noncapital legisla- treason, murder wholesale denial of tive bail to an entire class of criminal de- charged any given fendants lesser offense is constitutionally impermissible.” Appellant ac- knowledges capital noncapital that offenses and may murder be made nonbailable. Yet we find nothing Eighth in the Amendment which would ex- capital noncapital offenses and clude murder. Ei- Eighth by language requires ther the Amendment its Eighth all bail in cases or the Amendment its lan- guage require plain does not bail in case. The Eighth merely of words Amendment stand for proposition legislative body if pro- that has bailable, vided certain offenses be the court may deny through not in effect defendant’s freedom imposing an excessive amount bail. That is not to say that the denial of bail in all instances not be provision violation of some other of either federal Constitution our state Constitution. It is say simply Eighth that the Amendment to thé fed- proposition eral Constitution does not stand for the one has a constitutional to bail. history Europe If one examines the bail as country adoption well as at the time ,of the amend- States and United Constitution thereto, further convinced one is ments Eighth guarantee not intended
Amendment and detailed For an extensive in all cases. two-part history bail, analysis see a article “Constitutionality Meyer, Detention,” Pretrial Right Duker, “The 1139and L. J. 60 Geo. *6 (1977). Inquiry,” Alb. L. Rev. 33 42 a Historical Bail: early summary, history of the an examination In particularly England, bail, in discloses that there of part concept being right bail, to not a of no such was legal system. history English English of the The the prisoners where were held indefinite Chamber Star ly in secret is well known to student of and tried Long Parliament, In law. which the initiated passed Revolution, the Cromwell an act to 16 the Court of the Star Chamber. Car. abolish 1,c.10(1640). per provided if a The act further by any exercising jurisdic imprisoned court son was person Chamber, to Star tion similar such could judges King’s Court of file a motion with Corpus or for Common Pleas a writ of Habeas Bench ordinary prisoner upon payment fees. The by brought before the court which law then was re quired justice by to examine the facts and do “either delivering, bailing remanding prisoner.” grant right however, not, absolute to act did an bail. provisions act, to In an effort avoid the ways persons imprison found indirect to Stuarts politically objectionable peri- for found ods of time considerable advantage taking of defects in the remedy Corpus defects, To Act. these the Habeas (1679). Act of 1679 was enacted. 31 Car. c. A reading Corpus discloses, Act of Habeas right grant however, that it to bail did merely prisoner, It enabled a before case. convic- felony, except tion, one for treason or to committed early appearance an before the chancellor or secure a discharge upon judge if bail the return bailable. In an law the offense was showed judges get Corpus Act, around the Habeas effort thereby again pre simply imposed bail, excessive persons charged venting with bailable the release By imposing judges bail, made excessive crimes. Corpus inoperative respect Act the Habeas prisoners King whom the did not want re those Corpus It was this abuse of the Habeas Act leased. Rights the Bill of of 1689 to be that caused enacted. Rights provided Bill of of 1689 “that excessive Said * * *." ought required M., not to be 1 & § bail W. (1689). 2c.
The framers of the Constitution were well aware problems England, quite and could easily provided permitted have that bail should be they They all offenses had so intended. were attempting provide right however, not, a new country, transferring new but instead were an accepted, recognized principle that if an offense was bailable, the individual’s to freedom could not by requiring defeated bail in be excessive amounts. by examining This is further established *7 history of bail as it existed in the colonies at the time being Constitution was the drafted. Some colonies providing early laws for enacted bail in their his- tory. Pennsylvania Massachusetts did so in in p. and New York in 1683. 60 Geo. L. J. 1140 at framers of the Constitution and the mem- Congress exactly pro- of the first knew bers how to leg- in for bail such cases as determined vide the body. knowledge they Yet with that islative made provision such in either no the Constitution or the History amendments. discloses that there was no right England, to bail in nor constitutional was there any right colonies, constitutional to bail in the nor guaranteed there ever been such had right an absolute any Anglo-American jurisprudence in known adoption prior Rights. of the Bill of Congress adopt Rights When met the Bill of in suggested June of an amendment was which * * required read: “Excessive bail shall not be imagination It would have taken little or draftsman- ship simply provide, provided as had earlier been colonies, in that “bail shall be certain allow- * * Having except in all able cases failed to do they so, it must be concluded that did not intend to every grant through provisions in case the Eighth Amendment. history event,
In of bail does not disclose exceptions, how or or what manner for murder treason, found in most state constitutions can be Eighth recogni- read into the Amendment. Once a legislative right tion that bodies had the to exclude capital murder, treason, or offenses from bail inescapable made, one is left conclusion Eighth simply prohibited Amendment ex- guarantee cessive bail where allowed and did instance. to'bail capital country What was a offense at the time this founded is far different from that which is so in- today. example, capital cluded As an laws of co- idolatry, Massachusetts witchcraft, lonial included blasphemy, slaying anger murder, willful or cruelty passion, poisoning, beastiality, sodomy, adultery, attempting stealing, conspiring witness, false man' or public
invasion, insurrection, or rebel- against treacherously Commonwealth, lion or at- tempting the alteration or subversion of the frame of government, years cursing a child over 16 old or smiting parent, rebelling against his a son over 16 parents, rape. his cerning See Laws and Liberties Con- Massachusetts,
the Inhabitants of 5 M. Far- (1648). nothing history rand, There in the of our including govern laws, the ordinance to the North- (an Territory west Ordinance the Government of , Territory of the United States Northwest of the *8 ii), July. Ohio,. 13, 1787, sup- River art. which would port historically the claim that bail had and tradi-
859 tionally guaranteed right been a constitutional or was right Eighth to be such a under the Amend- intended ment to the Constitution of the United States.
Though country years more 200 now than appears directly old, there to have been no case de Supreme the United States cided issue. Court on this Supreme
In 1951
United States
Court de
Boyle,
cases,
1,
two
Stack v.
S.
72
cided
1,
U.
S. Ct.
Landon,
96 L. Ed.
Carlson v.
S.
U.
Appellant argues
72 S. Ct.
Stack v. established the constitutionally guaranteed right. bail is While it language true that one is tained find comfort in con supra, reading decision, in the Stack a careful that, best, the decision discloses at the declaration unsupported by is obiter dictum and Stack law.. not involve the did question denial bail. It involved the any language bail; therefore, excessive opinion announcing right in “traditional legal support freedom before conviction” is without opinion spe not at and was issue in the case. The cifically recognizes right pro to bail is as by law and vided right. not inherent constitutional Vinson, therein,
Mr. Chief Justice said: passage Judiciary “From the Act of present 73, 91, to the Stat. Federal Rules of Criminal (a) (1), Procedure, Rule 46 law un has federal provided equivocally person that a arrested for á non-capital (Em offense shall be admitted to bail.” supplied.) phasis kept It must therefore be. mind recognized right the Chief Justice that had to bail inception Judiciary its in the Act of and either Constitution of the United States or the thereto. For that reason amendments we do not be Boyle, supra, authority that Stack v. lieve for the proposition that a constitutional to bail exists. supra, Landon, v. hand,
Carlson
on the other
did
opinion by
the denial to
involve
bail.
In an
Mr. Jus-
joined,
Reed
tice
which Mr. Chief Justice Vinson
*9
argu
Eighth Amendment
the
court addressed
the
slight
saying
was lifted with
“The bail clause
ment
Rights
English
changes
Act.
In
Bill of
the
from
thought
England
to
been
ac
has never
that clause
merely
pro
cases,
right
to
but
to bail in all
a
cord
in those cases
shall not be excessive
that bail
vide
where
was
proper
grant bail. When this clause
it
to
nothing
Rights,
Bill of
was
over into our
carried
concept.
indicated
different
that
said
prevented Congress
Eighth Amendment
has not
defining
bail shall
the classes of cases which
from
country.
in criminal
in this
Thus
cases
allowed
be
may
punishment
compulsory
the
be
not
where
bail is
very language
Indeed,
Amend
death.
say
be bailable. We
fails to
all arrests must
ment
think,
clearly,
Eighth
Amendment does
here that
require
that bail be allowed under
circum
not
Hedman,
v.
cases.”
In Mastrian
of these
stances
denied,
84 S. Ct.
11 L.
cert.
376 U. S.
supra,
question
right
a constitutional
to
Ed. 2d
Eighth
addressed.
“Neither
Amend
bail
requires
Amendment
nor the Fourteenth
that
ment
given
everyone charged
a
offense must be
state
pending
liberty
trial. While it
on bail
is inherent
his
liberty
concept
right
that
to
American
in our
generally exist, this has never been held to
shall
bail
every
must make
criminal offense
that
state
mean
right
right provided
subject
or that the
to such a
as
subject
to bail must be
made
so
offenses
to
always
accused will
be able
administered
liberty pending
Traditionally
trial.
his
secure
acceptably,
offenses of a nature
there are
as to
may
properly
provi
to make
refuse
a state
which
right
See, also,
to bail.”
Turco v.
for a
State
sions
(D.
1971).
Supp.
Maryland,
Md.,
In
324 F.
view
of
of these
reject appellant’s
authorities, we must
con
violates the
that the 1978bail amendment
ex
tention
Eighth
prohibition
Amendment.
cessive
appellant’s
contention
second
We turn then to
is in violation of the
1978 bail amendment
of the Fourteenth Amendment
to
in
Protection Clause
kept
It
States Constitution.
should be
the United
examining
are here
the constitution-
mind that we
ality
provision
ap-
of a
of the Nebraska Constitution
overwhelming
people.
proved
an
vote
We
“
liberty,
recognize
life,
‘one’s
** *
rights
property
and other fundamental
they depend
vote;
on
the outcome of
be submitted
no elections.’
”
can a citizen’s
Nor
constitutional
simply
majority
infringed
rights be
because a
*10
people
that it be. Lucas v. Colorado
choose
General
Assembly,
713,
1472,
377 U. S.
84 S. Ct.
12 L. Ed. 2d
it
Yet we have said
is incumbent on
reasonably possible
court, when
and consistent with
rights,
to resolve all doubts as to
constitutional
a
validity.
pos-
in
favor
its constitutional
If
statute
way
sible, a statute should be construed in such a
as
negative
infirmity.
constitutional
Prender-
gast Nelson,
97,
v.
199 Neb.
all the more should it to an approved by to the Constitution amendment an over- majority whelming people. years Supreme
Over United States Court developed specific determining rules for has wheth- deny any equal protection laws citizen the er state the der guaranteed by law the federal Constitution. Un- judicial the traditional standard of review of action, presump- a state’s laws are accorded state constitutionality. Only where the tion state action impinges upon the exercise of fundamental constitu- rights or tional liberties must state be found to chosen the least restrictive have alternative so acting. The traditional standard of review of a state Equal law under the Protection Clause the Four- only requires teenth Amendment state law relationship rational be shown to bear some to San Antonio School legitimate purposes. state See
862 Rodriguez, 1, 1278, District v. U. S. 93 Ct. S. 36 L. Ed. 2d 16. Supreme
The decisions of the United States Court reviewing state action as it related Pro tection Clause United States Constitution dis basically that there are closes two tests. If the mat right” guaranteed by ter involved is a “fundamental States, the Constitution of the United then the court engage judicial scrutiny will a strict of the act in question. Massachusetts Board of Retirement v. Murgia, 307, 2562, 427 U. S. 96 S. Ct. L. 49 Ed. 2d 520. hand, the other if
On the state action under exam right” guaranteed by not a ination is “fundamental States, the Constitution of the United the court mere ly question examines the matter to determine there is a rational whether tion which basis for the classifica
, does not involve either a “fundamental constitutionally guaranteed right” involve “suspect Shapiro Thompson, class.” See v. 394 U. 618, 1322, 600; 89 S. Ct. S. L. Ed. 2d Griswold v. Connecticut, 479, 1678, 381 U. S. 85 S. Ct. 14 L. Ed. 2d 510; Carr, 186, Baker v. 691, 369 U. S. 82 S. Ct. 7 L. Chicago, 663; 2d 1, Ed. Ct. U. S. Terminiello v. 337 U. S. 69 S. 894, 1131; 93 L. Massachusetts, Ed. Prince v. Nyquist 645; 64 S. Ct. 88 L. Ed. v. Mauclet, 432 U. S. 97 S. Ct. 53 L. Ed. 2d *11 Richardson, 365, Graham v. 403 U. S. 1848, S. Ct. Loving Virginia, 534; 29 L. Ed. 2d Ct. 1, v. 388 U. S. 87 S. Bolling Sharpe, 1817, 18 L. Ed. 2d v. 347 U. 693, See, 74 S. Ct. 98 L. also, S. Ed. 884. Voich City Island, ahoskev. of Grand 194 Neb. 231 N. W. 2d history
In view what we have said about the Eighth bail under the Amendment to the Constitu- States, tion of the United right we must conclude that the right guaranteed to bail is not a fundamental say under Constitution. That is not to that under every circumstance a denial of bail will have a rational basis and therefore not be violative of right equal protection case, to of the law. In this right however, we are unable to conclude constitutionally guaranteed fundamental requiring right scrutiny strict on review no rational for the there is basis action taken. Supreme United States Court has held that it province not the of that court to create substantive rights guaranteeing in the name
constitutional equal protection of the laws. If there is to be such a right, it must be fundamental found to be either ex- implicitly guaranteed by plicitly or the Constitution. Rodriguez, supra. Antonio School San District v. We in the find nowhere Constitution that a to bail is guaranteed. scrutiny inappli- The strict test is thus present case. cable
If, circumstances, scrutiny under the strict applicable, legislatures pre rule is not state will be sumed have acted within their constitutional power despite practice, that, the fact their laws inequality. statutory result some A discrimina not be tion will set aside if state of facts rea sonably may justify be conceived to it. See Mc Maryland, v. Gowan 366 U. S. 81 S. Ct. 6 L. Ed. 2d 393.
The fact the bail amendment affect particular person charged class of with a crime dif- ferently persons charged than it affects other guarantee other crimes does not of itself violate the equal protection of the laws. proposition “The standards under [the which this Clause] Protection is to be evaluated have many [the set forth times been United States Supreme] Although precise Court. no formula has developed, been court has held that the Four- permits scope Amendment teenth the States a wide enacting of discretion laws which affect some groups differently of citizens than others. The con- safeguard only stitutional is offended if the classifi- grounds wholly cation on rests irrelevant to *12 864 legisla objective. State of the State’s
achievement
presumed to have acted within their con
are
tures
practice,
despite
power
that,
the fact
stitutional
statutory
inequality. A
in some
laws result
their
not be set aside if
state of
will
discrimination
justify
reasonably may be conceived to
it.”
facts
Riverport
Maryland,
supra; Kotch v.
v.
McGowan
Comrs.,
552,
910,
L.
330 U. S.
67 S. Ct.
91
Ed.
Pilot
Metropolitan
Brownell,
580,
1093;
Co. v.
294 U. S.
55
Lindsley
538,
v.
79 L. Ed.
Natural Car
S. Ct.
337,
Co.,
31 S. Ct.
55 L.
220 U. S.
Ed.
Gas
bonic
require things
Constitution does
which
The
opinion
in fact or
to be treated in
different
law
are
they
Tigner
though
Texas,
the same.
v.
were
as
Ct.
there, the others.” Williamson Optical Okla., Inc., 348 U. S. 75 S. Lee Ct. v. 461, finicky conformity L. Ed. 563. ‘‘No or exact required legislation. correlation is abstract legislature responds if a Constitution is satisfied The practical living facts with which it to Through peting deals. precise points many in a
what
field of
com
might
pressures
legislature
suitably
most
question
judicial
its
is not a
drawn
lines
have
re
enough
satisfy
It
examination.
Constitution
drawing
principle
them the
reason has not
disregarded.”
Maryland, supra.
McGowan v.
been
provisions
Constitution,
other
‘‘Unlike
Equal Protection Clause
confers no substantive
rights and creates no substantive
liberties.
Clause, rather,
function
Protection
simply
validity
to measure
ere-
classifications
*13
hardly
by
the
a law on
There is
state laws.
ated
differently
people
some
that does not affect
books
Equal
But
the basic concern
from others.
legislation whose
state
Clause is with
Protection
objec-
purpose
tively
discrete and
is to create
or effect
respect
to such
And with
classes.
identifiable
Equal
long
legislation,
that
it has
been settled
only by
that are
offended
laws
Protection Clause is
invidiously
discriminatory—only
by
classifications
capricious.”
wholly arbitrary
See con-
are
that
Stewart,
curring opinion
San Antonio
of Mr. Justice
Rodriguez, supra.
District v.
School
recognized that distinctions and
likewise
We have
appropriate.
may
Such distinc
be
classifications
themselves,
not,
result
a denial of
do
tions
protection.
appropriate
equal
examination
The
operates
single
out a class of
statute
state
when
people
special
the classifi
for
treatment
is whether
relationship
legiti
rational
bears some
cation
legislation.
purposes
Botsch v. Reis
mate
dorff,
2d 121. A class need
193 Neb.
226 N. W.
Legislature
free to rec
be all inclusive. The
is
not
may
ognize degrees
it
confine its re
of harm and
the need is
to those classes of cases where
strictions
deemed
may be,
to be clearest. The classification
arbitrary
nature,
extent,
in its
but it is diffi
to some
not
to re
to draw the line. The court does
sit
cult
Bridgeford
legislative
v.
the wisdom of
acts.
view
Co.,
195Neb.
With I, provisions of the Nebraska section of Article if a rationale to determine as amended Constitution Legislature’s action as ratified for existed people. recognized clearly the 1978 bail be
It should prohibit bail case does not amendment charged a sexual offense an individual where against involving penetration force or the will of charged ineligi- for one so to be In order the victim. appear bail, must to the trial court that ei- it ble ther pre- charge proof is evident or the sumption great. In in which the court instance proof that either the is evident or convinced *14 pro- great, presumption not then court is granting A from bail. claim mere hibited filing liberty charge the individual his of a denies by reading supported a of the 1978bail not is only It is clear that bail can be denied amendment. great. presumption proof or the A if the is evident charge in an will not result individual be- frivolous ing long a bail as he demands hear- incarcerated so ing. question of whether therefore left with the
We are people Legislature instance, and the in the first the thereafter, reasonably rationally and con- acted pre- cluding proof that, or the was evident where sumption great had committed that an individual by involving penetration force or offense sexual person against individual, such should the will pending trial. free on bail not be Certainly not in the record before us would the classification was unrea- disclose that manner rape recognized as a Forcible has been sonable. seeking one committed not sexual heinous crime disposed gratification one to violence but rather upon seeking to inflict harm and violence and “Rape: Anger, Power, Groth, al. et victim. See Sexuality,” Psychiatry, p. J., Harper and 134 Am. (1965).
Gebhard, Offenders,” “Sex and Rowe rape easily The victim of a violent forceful Rape emotionally rehabilitated. victims are often long periods Rape time, scarred for if not for life. ugliest very is one of the humiliating of crimes. Its nature is frequently to the victim and it is ac- companied by sodomy, violence, forced and similar additionally acts traumatize and humiliate. necessarily The victimization of the woman does not cease with the termination of the attack itself. Pregnancy, hospitalization, disease, venereal loss of employment, imputations of wantonness and even by family neighbors may ostracism follow. See “Rape Report Victims, Citizens, and its Health Agencies,” Facilities and Criminal Justice National Institute of Justice, Law Enforcement and Criminal Administration, Law Enforcement Assistance U. S. (1975). Department Rape of Justice is a violent normally force, crime because it involves or the force, threat of or intimidation to overcome the will capacity Rape and the of the victim to resist.
very accompanied by physical injury often to the fe- psychological male and can also inflict mental and damage. See, Rape Note, The Victim in a Forcible View, Case: A Feminist’s 11 Am. Crim. L. Rev. Rape Rape 335; Comment, and Laws: Sexism So- ciety Law, 61 Cal. L. Rev. 919. The nature of injury, physically emotionally, both often rape committed on a state. victim is of concern to *15 Rape victims often are unable to return the mainstream life and more often than not re- therapy quire counseling. extensive and The state legitimate does have a concern in this area. Nor say can we either under the record as we have it or by knowledge, Legislature common that wrong believing rapists repeat in that violent their crimes, motivated emotional forces over which they p. Sell, no control. See State v. have ante view, it not without 2d 256. In our is N.
277 W. people Legislature and rational basis for removing per- protect society therefrom want rape proof evi- is accused of violent where sons presumption great. balance, such On or the is dent appear can- decision does not unreasonable. We a say Legislature not that the in the first instance people rational thereafter were without suggesting person in a who has committed basis that psychologically violent, not as motivated crime is a likely to a crime while free on bail. commit similar totally reject rape not
We the notion that is a serious crime. Next to murder there is none which higher; and for al- ranks reasons which we have ready perhaps noted, cases, in some death itself be easier for the victim to handle than con- would may Appellant argues life. that denial of tinued noncapital acceptable murder, in a be rape. Appellant’s but position for
basis is that punishable by are crimes which are there far more yet penalties rape, than but are crimes which severe accept argument. bailable. We do not are penalty is not the issue minimum determination rape, proof where the is that violent evident or the great, presumption is not be should bailable. The repeated possibility and further real acts victims Society pending trial issue. deserves more. penalty statutory noncapital In murder be years of as little as and actual in- sentence carceration 1943. Would something 28-402, § less. R. R. S. anyone suggest the denial of bail merely charged including murder, one is where degree, be a in the second would violation of murder the not, Protection Clause? We think think it cannot be said that there is likewise we no rape the denial of bail a forcible rational basis for presumption proof evident or the case where I, great. that Article section therefore hold We as amended does not vio- Constitution the Nebraska
869 the Constitution Clause of Protection late the United States. 1978 bail Appellant maintains appellant’s further presumption in- of violates amendment protected Clause the Due Process nocence States Consti- to the United Amendment Fourteenth agree. position Pre- do not we With tution. nothing sumption to do with con- has of innocence Presumption prior to trial. or release finement only recognition that, under our a innocence American charged jurisprudence, a one with crimi- proven guilty presumed innocent until offense is nal beyond Fisher, 190 doubt. State v. a reasonable plea of not 2d 568. Where N. W. Neb. interposed by trial, guilty in a criminal defendant presumption of innocence he is clothed with pre- favor. Such as evidence his which stands sumption state, the evidence it remains until the guilty beyond presents, a rea- shows defendant to be proof furnishing such sonable doubt. burden prosecution throughout the trial and is with Hizel, 139 N. W. never shifts. State v. 179 Neb. State, N. 173. Bourne v. 116 Neb. 216 W. 2d It is rely of a defendant constitutional require presumption upon of innocence and to (1) charged; prove act that he committed the state (2) legal culpability, an issue. his if that is also Simants, N. W. 2d State v. 194 Neb. pending is released on bail
Whether defendant presumption relationship of in- trial has no charged murder, he is clothed in. One nocence presumption enjoys offense, nonbailable eligible Likewise, who can- for bail one innocence. enjoys presumption bail, innocence. not make jail loses a confined are unable to see how one We presumption incarcera- of his of innocence because reject appellant’s that the claim tion. We therefore presump- appellant’s amendment violates 1978 bail tion of innocence. amend- the 1978 bail argues further
Appellant
to the effective assistance
rights
his
ment violates
under
freedom to
his defense
prepare
and to
counsel
Amendments
to the United
and Fourteenth
the Sixth
*17
does not
The Sixth Amendment
Constitution.
States
the unlim-
to the accused
guarantee
manner
defense,
the
including
his own
prepare
ited
right
have
and
as he
As we
go
pleases.
to come
right
in this
the most
serious
opinion,
out
pointed
crimes, murder,
is not
granted
defendant
If
it is a constitutional
as
right
to bail.
indeed
would it not all the more be
by appellant,
suggested
of one charged
in the case
with murder
and
required
execution
conviction?
subject
possible
upon
follow, yet
this would
no such
Clearly
requirement
be said of those
may
The same
individuals
exists.
with lesser crimes who are unable to make
charged
In the absence of such
we must
requirements,
bail.
claim with
to the denial
appellant’s
regard
find that
effective
assistance
counsel
is without
support.
maintains
Finally,
appellant
the 1978 bail
constitutes
cruel
and unusual
punish-
amendment
that detention
early recognized
ment.
It was
every
feature of
case of arrest on a
usual
criminal
an
person
even when
innocent
charge,
wrongfully
accused;
not imprisonment
but it is
in a legal sense.
States,
228,
Wing v. United
163 U. S.
Wong
16 S. Ct.
Confinement,
Constitution, respects I, Article section is in all proper. valid and It therefore meets all the consti- tutional tests under both the Constitution of the State of Nebraska and the Constitution of the United upon stipulation *18 States. Based entered into in appellant eligible case, this judgment was not for bail and the Judgment
of the trial court was correct. affirmed. Affirmed. concurring J., in result. McCown, majority opinion “right The asserts that a to bail” right” guaranteed not does involve a “fundamental by the Constitution of the United States. It is clear any “right necessity, bail,” of that a denial involves to of liberty a loss of and that the constitutional guaranty person deprived liberty that no be shall of process right.” of without due is a “fundamental .law Supreme States The United Court said: “From * * * Judiciary passage pres- Act of 1789 * * * Federal Rules of Criminal Procedure ent eral arrested fed- provided unequivocally person law has that a non-capital for a offense be shall admitted right This traditional to to bail. before con- freedom preparation permits unhampered of a viction de- fense, of punish- to the infliction prevent and serves supplied.) (Emphasis ment conviction.” prior L. U. Ct. Ed. 3. Boyle, 342 S. S. Stack v. to bail is a “fundamental right” The right legislative or enact- constitutional person, it be construed. dealing strictly with must ment I, Constitution, section of the Nebraska Article state, inception always granted has since the all a bail and for offenses with every person right Constitution, The even as specified exceptions. amended, bail in all prohibit granting does cases murder, treason, the specified sexual of- fenses. It does not authorize the denial of bail in all treason, murder, specified and the sexual cases The authorizes offenses. Constitution denial proof where the only in such cases evident or the great. judge having jurisdiction The presumption deny for bail must make that de- grant request termination and he cannot make such a determina- simply charge tion because has been filed. Any such attempted restriction on a constitutional strictly must be construed. necessarily critical stipulated facts were here.