NCJ Number
82455
Journal
San Diego Law Review Volume: 17 Dated: (August 1980) Pages: 1061-1091
Date Published
1980
Length
31 pages
Annotation
California's constitutional mandate requiring that those charged with a noncapital offense be granted bail as a matter of right is assessed with respect to those charged with forcible rape.
Abstract
Article I, section 12 of the California constitution requires that bail be granted as a matter of right for noncapital offenses. In In re Underwood, the California Supreme Court held that bail may not be denied to protect the public. This position is supported by the history of bail in California, the early decisions of the Supreme Court interpreting article I, section 12, and the unequivocal language of article I, section 12. Despite the validity of the court's position, society's interests are underprotected with regard to forcible rape. The primary motive for forcible rape is to inflict violence on the victim. A person who has committed such a violent, psychologically motivated crime is capable of committing a similar crime while free on bail. Those charged with forcible rape pose a significant threat to society and should not be released on bail pending trial if the proof is evident or the presumption great that they committed the crime. There should be a constitutional amendment that will deny the right to bail for those accused of forcible rape when the proof is evident or the presumption great. This amendment would not violate the equal protection clause of the 14th amendment, since the U.S. Constitution allows a State to recognize degrees of harm. Neither does denial of bail conflict with the presumption of innocence, since the burden of proof required in the trial is not affected by bail rules. A total of 159 footnotes are provided. (Author summary modified)