Based on this sentiment, a number of courts have found constitutional violations in the use of peace bonds. See id. at 644, 303 So.2d at 144 (impermissible discrimination based on wealth, violation of equal protection of laws); Kolvek v. Napple, 158 W. Va. 568, 575, 212 S.E.2d 614, 619 (1975) (same; unconstitutional as applied to indigent defendants); Santos v. Nahiwa, 53 Haw. 40, 44, 487 P.2d 283, 285 (1971) (denial of due process of law unless bond imposition is based on proof beyond a reasonable doubt). But see Commonwealth v. Miller, 452 Pa. 35, 38-41, 305 A.2d 346, 348-49 (1973) (over two strong dissents, held that neither a jury trial nor proof beyond a reasonable doubt is constitutionally required). Apparently because of this criticism and the holdings from courts that have analyzed peace bond statutes, it has fallen into disuse virtually everywhere.

Accordingly, it is my view, that defendants charged under the Statute are entitled to the same procedural constitutional protections, including proof of guilt beyond a reasonable doubt, as are all others charged with the commission of crime. See Santos v. Nahiwa, 53 Haw. 40 487 P.2d 283 (1970). Cf.

The defendants have likened the ordinances to "the time-honored `bond to keel) the peace' . . . (where) Forfeiture is not self-executing". Although the court believes that the presence of First Amendment rights renders the analogy inapplicable, peace bonds have been held unconstitutional for the reason that they place on the defendant a burden of proving his innocence. Santos v. Nahiwa, 39 LW 2149. "If the line drawn by the decree between the permitted and prohibited activities . . . is an ambiguous one, we will not presume that the statute curtails constitutionally protected activity as little as possible. For . . . standards of permissible statutory vagueness are strict in the area of free expression."

In support of these arguments, Petitioner relies on Santos v. Nahiwa, a recent case in which the Supreme Court of Hawaii upheld a lower court's determination that Hawaii's "Bond to Keep the Peace," a statute similar to West Virginia's, was unconstitutional in that it failed to require proof of guilt beyond a reasonable doubt. 487 P.2d 283 (Hawaii 1971). The present wording of § 62-10-3 also conditions an appeal of the justice's decision on the giving of the recognizance.

See, e.g., Ex parte James, 53 Ala.App. 632, 644, 303 So.2d 133 (incarceration of indigent petitioner by virtue of his inability to post peace bond violated equal protection clause of fourteenth amendment to United States constitution), cert. quashed, 293 Ala. 759, 303 So.2d 145 (Crim.1974); Santos v. Nahiwa, 53 Haw. 40, 42, 487 P.2d 283 (1971) (incarceration of indigent petitioner by virtue of his inability to post peace bond violated equal protection of laws and petitioner's substantive due process rights because statutory scheme failed to require proof of guilt beyond reasonable doubt); Kolvek v. Napple, 158 W.Va. 568, 575, 212 S.E.2d 614 (1975) (incarceration of indigent person based on his inability to post peace bond violated equal protection clause of fourteenth amendment to United States constitution); see also State v. Weller, 152 Vt. 8, 15–16, 563 A.2d 1318 (1989) (expressing concern that peace bond was imposed “as a form of bail for preventive incarceration” but declining to reach constitutional issues after concluding that court imposed peace bond without affording defendant process required by statute). Further research into Connecticut's statutory history provides additional support for the notion that the imposition of a bond for the purpose of ensuring public safety is a constitutionally sound practice.

See, e.g., Ex parte James, 53 Ala. App. 632, 644, 303 So. 2d 133 (incarceration of indigent petitioner by virtue of his inability to post peace bond violated equal protection clause of fourteenth amendment to United States constitution), cert. quashed, 293 Ala. 759, 303 So. 2d 145 (Crim. 1974); Santos v. Nahiwa, 53 Haw. 40, 42, 487 P.2d 283 (1971) (incarceration of indigent petitioner by virtue of his inability to post peace bond violated equal protection of laws and petitioner's substantive due process rights because statutory scheme failed to require proof of guilt beyond reasonable doubt); Kolvek v. Napple, 158 W. Va. 568, 575, 212 S.E.2d 614 (1975) (incarceration of indigent person based on his inability to post peace bond violated equal protection clause of fourteenth amendment to United States constitution); see also State v. Weller, 152 Vt. 8, 15-16, 563 A.2d 1318 (1989) (expressing concern that peace bond was imposed "as a form of bail for preventive incarceration" but declining to reach constitutional issues after concluding that court imposed peace bond without affording defendant process required by statute). I disagree with the majority's contention that sureties of the peace "are not truly separate and apart" from bail.

It is also the contention of the appellant that the statute in question violates the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States inasmuch as it permits the imprisonment of the appellant on proof of less than "beyond a reasonable doubt". The appellant cites as authority for this contention the case of Santos v. Nahiwa, 53 Haw. 40, 487 P.2d 283 (1971). In that case a magistrate required an indigent to post a $500 "peace bond", and upon the failure of the indigent to do so he was placed in jail.

There are few cases on the constitutional validity of similar peace bond statutes, which do not require proof beyond a reasonable doubt. In Santos v. Nahiwa, 53 Haw. 40, 487 P.2d 283 (1971), the Supreme Court of Hawaii held that such a peace bond statute could not pass constitutional muster. A contrary view is taken in Commonwealth v. Miller, 452 Pa. 35, 305 A.2d 346 (1973), and Kolvek v. Napple, 212 S.E.2d 614 (W.Va. 1975).

The statutes of these two states are markedly similar to the Alabama statute. The Supreme Court of Hawaii in Santos v. Nahiwa, 53 Haw. 40, 487 P.2d 283, held that state's peace bond statute establishes criminal proceedings and must satisfy the requirements of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. The Supreme Court of Hawaii in reviewing a circuit court's habeas corpus decision said: "Unable to post bond because of indigency, Santos sought relief by challenging the constitutionality of his conviction and incarceration on a host of grounds which we need not state here. Santos was subsequently discharged from prison when the circuit court set aside and vacated the order requiring him to post bond.