Martin v. State

• Decision Date: 02 January 1974
• Docket Number: No. 1785,1785
• Citation: 75 A.L.R.3d 941,517 P.2d 1389
• Parties: Max Ray MARTIN et al., Appellants, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1389

517 P.2d 1389

75 A.L.R.3d 941

Max Ray MARTIN et al., Appellants, v. STATE of Alaska, Appellee.

No. 1785.

Supreme Court of Alaska.

Jan. 2, 1974.

Herbert D. Soll, Public Defender, Larry A. Jordan, Asst. Public Defender, anchorage, for appellants.

John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Anchorage, Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee.

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

OPINION

FITZGERALD, Justice.

These cases come to us as a consolidated appeal seeking declarations of the rights of the defendant in criminal proceedings to bail under the constitution and laws of Alaska and the constitution of the United states. Although the factual circumstances of each case are somewhat different, all three cases challenge the concept of preventive detention.

On June 7, 1972, appellant Richard Snyder was arraigned in the superior court on a charge of forgery. At the time of this arraignment, Snyder was free on bail following three indictments issued previously on other charges. ¹

At his arraignment and at a later hearing for plea, Snyder requested the court to set bail on the forgery charge. The trial court refused to set bail finding that Snyder was 'a danger to society.' On August 10, 1972, a notice of appeal was filed on the decision denying bail. However, on November 9, 1972, the court on the motion of the prosecutor dismissed the forgery charge against Snyder. ²

Appellant Max Martin was arraigned August 3, 1972 in the superior court on a petition to revoke probation. Almost two years earlier, Martin had been convicted of larceny in a building. For that offense he received a five-year sentence, but four years were suspended upon conditions of probation.

At his arraignment and at a hearing four days later, Martin requested the court to set bail for his release pending the revocation hearing. The court refused to set bail, reasoning that there was a high probability of truth in the allegations, and that it was within the court's discretion to deny bail after conviction.

Notice of appeal from the denial of bail was filed on August 10, 1972. On September 18, 1972, Martin's probation was revoked, and he was ordered to serve the remaining four years on his larceny conviction.

Appellant Aloyisus Fabian was arraigned in the superior court on May 18, 1972, on a charge of burglary not in a dwelling. Following arraignment, he was released on his own recognizance to participate in the Salvation Army alcoholic rehabilitation program. On May 25, 1972, the state moved that Fabian's recognizance release be revoked, and that bail be set at $500 because he was no longer participating in the Salvation Army program. Fabian, through his counsel, admitted violating the conditions of his release but requested to be released again on recognizance, contending that his financial status would make any bail amount prohibitive.

Rejecting the suggestion that Fabian reenroll at the Salvation Army, the court offered to release him to the custody of the Anchorage Native Program for Alcoholic and Drug Abuse. Fabian's counsel agreed to attempt to enroll him in the native program, and the appellant was incarcerated in the meantime. Attempts to enroll him in the native program failed. Since his counsel did not reapply for bail, the appellant remained in jail until his trial.

Notice of appeal from the ruling of the superior court was filed August 10, 1972. On October 3, 1972, Fabian appeared in superior court and was convicted upon his plea of guilty and was sentenced to a term of one year of confinement.

The appellants claim a substantive right to bail arising from the Alaska Bail Reform Act, ³ from Article I, sections 11 and 12 of the Alaska Constitution, and from the eighth amendment of the United States Constitution.

We cannot ignore, however, the preliminary procedural difficulties which these cases present. In each case before us, it is argued that the issues arising on appellant's application for bail have been mooted by either a subsequent dismissal, a conviction, or a revocation of probation. An application for review of an order of the trial court denying bail should be promptly filed. The Alaska procedures for review of a denial for bail are designed to ensure speedy consideration at the appellate level. ⁴ Although in this appeal the slower appellate process was utilized, we undertake to consider the substantive claims raised by appellants because they involve important recurring issues of law which may be capable of evading review. ⁵

Appellants would have us interpret the eighth amendment of the federal constitution to create a right to bail. ⁶ The eighth amendment provides in pertinent part: 'Excessive bails shall not be required . . ..' Appellants' argument raises two questions for consideration: 1) whether the fourteenth amendment due process clause ⁷ incorporates ⁸ the excessive bail provision of the eighth amendment; 2) whether the excessive bail provision includes the unqualified right to bail.

As to the first question, the United States Supreme Court has not ruled on whether the eighth amendment bail provision applies to the states through the fourteenth amendment. ⁹ The most recent discussion on this subject by the Supreme Court occurred in Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502, reh. denied, 405 U.S. 948, 92 S.Ct. 930, 30 L.Ed.2d 818 (1971). In Schilb the issue before the Supreme Court related to the constitutionality of Illinois' bail statutes which permitted a defendant in some instances to post 10% of the bail directly to the court, of which the state retained 10% of the posted security as administrative 'bail bond costs.' Justice Blackmun, in the course of defining the issue before the court, stated:

'Bail, of course, is basic to our system of law . . . and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment. . . . But we are not at all concerned here with any fundamental right to bail or with any Eighth Amendment-Fourteenth Amendment question of bail excessiveness.' 404 U.S. at 365, 92 S.Ct. at 484, 30 L.Ed.2d at 511 (citations omitted).

The question of incorporation by the fourteenth amendment would seem to await a more definitive answer in future adjudication.

There remains a substantial controversy over the eighth amendment's inclusion of an unqualified right to bail. ¹⁰ Much of the discussion on the issues appears prompted by the District of Columbia Court Reform and Criminal Procedure Act of 1970. The Act allows courts of the District to detain a defendant without bail for up to 60 days prior to trial if the court concludes that the defendant's release would constitute a danger to the community. D.C.Code Ann. §§ 23-1321 to 23-1332 (1973).

Perhaps the most widely cited case for supporting a right to bail under the eighth amendment is Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). ¹¹ Stack, however, is not convincing authority for supporting an unconditional eighth amendment right to bail. Although the opinion speaks to the right of release before trial, this discussion relates to federal statutes providing a right to bail following arrest for a noncapital offense. ¹² Once this statutory right to bail is recognized, then the eighth amendment excessive bail provision assures a reasonable bail.

In Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952) the Supreme Court in a case involving the deportation of certain aliens classified as dangerous held that in such circumstances, the eighth amendment did not require the petitioners to be released on bail.

'The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in All cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.' 342 U.S. at 545, 72 S.Ct. at 536, 96 L.Ed. at 563 (footnotes omitted).

Carlson, however, is a special case involving the Internal Security Act of 1950, 8 U.S.C. § 137 (1970).

It is, however, not necessary in this appeal to decide whether appellants were entitled to bail under the eighth amendment to the United States Constitution.

Article I, § 11 of the Alaska Constitution provides:

'In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury of twelve, except that the legislature may provide for a jury of not more than twelve nor less than six in courts not of record. The accused is entitled to be informed of the nature and cause of the accusation; to be released on bail, except for capital offenses when the proof is evident or the presumption great; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.' (emphasis supplied)

Article I, section 11 was originally introduced as section 12 of Committee Proposal No. 7, offered by the Committee on the Preamble and Bill of Rights to the Alaska Constitutional Convention in December, 1955. ¹³ Section 12 of the committee proposal read in part:

'The accused is also entitled to be informed of the nature and cause of the accusation; to be released on bail, except for capital offenses . . ..'

The commentary attached to the proposal indicated that section 12 was intended to give defendants 'the opportunity to be released on bail except in capital offenses.' ¹⁴ When the committee's proposal was discussed on the Floor of the convention, Delegate Victor Fischer introduced an amendment to qualify the right to bail in cases involving capital offenses by adding the words 'when the proof is evident or the presumption great.' ¹⁵ The...