For the Defense - Vol. 5, Issue 2 - 7

Pennsylvania Constitution Article I, Section 14
Pennsylvania Constitution Article I, § 14 states
that: "All prisoners shall be bailable by sufficient
sureties ... unless no condition or combination
of conditions other than imprisonment will
reasonably assure the safety of any person and
the community when the proof is evident or the
presumption great." The underlined portion is
what was added by constitutional amendment in
1998.
Consequently, when a defendant files a motion
for nominal bail, the Commonwealth will
typically respond by invoking Article I, § 14 either
explicitly or, more often, implicitly by simply
accusing the defendant of being a danger. In my
experience, many prosecutors and even judges
do not understand this area of law. They think
that if the defendant is a purported "danger," he
does not have to be released. It is quite common
to see judges "deny" the motion for nominal
bail on this basis, keeping bail at the present
unaffordable amount, when technically the
defendant has an unqualified right to nominal
bail under Rule 600 and he can only be kept in
pretrial confinement if bail is revoked entirely
pursuant to Article I, § 14. This distinction might
seem pedantic, but it is a legally critical one.
A higher level of due process is required for
a judge to revoke bail, especially when bail is
revoked based on alleged future dangerousness,
compared to when a judge maintains the amount
of bail.5
Nominal Bail Hearings
In United States v. Salerno, the United States
Supreme Court upheld the constitutionality of a
Federal Bail Reform Act provision that is identical
to the amendment to Article I, § 14.6 The United
States Supreme Court held that the Act does
not violate due process because of numerous
procedural safeguards found within the Act
including, inter alia: bail can only be denied
for extremely serious offenses; the detainee is
entitled to a prompt detention hearing; at a
full-blown adversary hearing the Government
must convince a neutral decision-maker by clear
and convincing evidence that no conditions of
release could reasonably assure the safety of
the community; there is a right to counsel at
the hearing; detainees may present evidence
at the hearing and cross examine witnesses;

the judge is guided by statutorily enumerated
factors; and the detainee is entitled to immediate
appellate review of the decision.7 The facial
constitutionality of Article I, § 14 is outside the
scope of this article, but because Pennsylvania
law does not guarantee nearly any of these
fundamentally important components of both
substantive and procedural due process, I have
argued to numerous courts that Article I, § 14
facially violates the United States Constitution
and is therefore void.8 I have not yet gotten a
decision on the merits of this issue, however.
Even if you do not elect to raise the facial
constitutionality of Article I, § 14, you should
raise Salerno and object to every instance of due
process being denied your client. The following
issues are relevant at every nominal bail hearing:
1.	 Standard of Proof: The relevant inquiry
is not whether the crime alleged in the
affidavit of probable cause is bad or
involves violence. The facts contained in the
criminal complaint are mere allegations,
and the defendant is still cloaked in a veil
of innocence as to those charges.9 The
only relevant inquiry is whether there
are any conditions or combination of
conditions of release which can reasonably
assure the safety of the community.10 The
Commonwealth bears the burden of proving
that there are no such conditions, and it
must meet this burden beyond the standard
of "the proof is evident or the presumption
great."11 There is no case in Pennsylvania
defining this standard in the context of
bail denials based upon an allegation of
dangerousness, but given the ordinary
meaning of "evident" proof and also given
the holding in Salerno which strongly
suggests a clear and convincing standard
is constitutionally required, the only
reasonable interpretation of this standard
is that it is at least equivalent to a clear and
convincing standard.12
2.	 Evidence Necessary to Revoke Bail: Since
the Commonwealth bears the burden
of establishing there are no conditions
that will keep the community safe, the
Commonwealth should offer testimony that
previous attempts to impose bail conditions
have failed. Examples of bail conditions
include: regular check-ins with the probation

Vol. 5, Issue 2 l For The Defense

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For the Defense - Vol. 5, Issue 2

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