The opinion
ALBERT V. BRYAN, Circuit Judge
(dissenting):
I think the Federal court’s grant of bail to H. Rap Brown was improvident and should be vacated. As far as I know, a person charged with a State felony has no absolute and unconditional Constitutional or statutory right to bail; its allowance is dependent upon many factors. 1 But whatever the right, it is a judgment to be made initially by the State courts. At any rate, the prisoner should not have been permitted at will to skip the procedure laid out by the Virginia law to enable her courts to weigh the advisability of bail.
To begin with, the simple issue of whether he should be delivered to Maryland has thus been allowed to balloon into enormous proportions. The majority opinion quite fully and accurately reveals the utter baselessness of Brown’s resistance to extradition. The hollowness of *697 it all and the waste of time are laid bare when it is remembered that Brown could be harmed but little if he were denied bail entirely before he is sent back to Maryland. There he could procure bail from the court in which he would be tried — the logical place for it.
Positing a point of appellate procedure, too refined I think, the majority today overlooks the public interest as it refuses to correct an unjustified interference with orderly State criminal processes. The District Court intervened between the State courts and Brown prematurely and without need or necessity. We should not hesitate to erase the error.
On his representation that he had fully followed the State law to obtain bail but failed, Brown was at once released from the custody of the State. Truth is —and it cannot be questioned — Brown had not invoked the remedies open to him under the Virginia statutes.
Disapproval of the District Court’s entertainment of Brown’s case, and demand that Brown be required to pursue fully his State conferred bail privileges before going into the Federal court, are not simply matters of etiquette. It is immaterial that the Federal courts may have jurisdiction to admit to bail without a previous request of the State court. Power is one thing and the use of it another. Doctrine embedded in our Federal system altogether soundly admonishes caution and restraint by Federal courts not to jeopardize State prosecutions. I think this canon was not observed here.
After a strictly Constitutional hearing, the Governor of Virginia issued his warrant directing Brown’s surrender to Maryland. Meanwhile, having unsuccessfully asked bail of the Virginia trial judge, Brown forewent his right under Va.Code Ann. §§ 8-596, 8-606, to seek bail by appeal to the Supreme Court of Appeals of Virginia. He petitioned only one member of that Court, who possessed no jurisdiction as a single justice. 2
Generous provision is made by Virginia for the appeal. The gravity of the State’s concern is manifested by an extraordinary statutory provision. Va. Code Ann. § 8-606 declares that if the appellate court is not in session it may be convened to consider a request for habeas corpus, which would include an application for bail, on the call not only of the Chief Justice but of the Governor too. Brown’s ploy avoided final expression by the Virginia courts on the advisability, conditions, amount and security of bail, considerations of public interest. Until this determination of them had been made, the Federal court had no right to hear Brown’s plaint.
The immediate hurt to the public interest is the possibility of serious delay by reason of the frailty of the bail’s assurance of Brown’s return to Virginia and Maryland. Delay is a potent force — witnesses disappear, memories dim — to forestall prosecution of crime.
The only tether upon Brown is his attorney’s promise to produce him when called upon. Momentarily, on whim or caprice, Brown may discharge this attorney and thus sever even this slight rein upon him. No comfort is found in the assertion that such absentia would justify revocation of the bail. Of course it would, but notably that means delay.
Even if the bail is forfeited and revoked there is the problem of recapture, at the least one of delay. Since custody as well as control have been entirely taken from Virginia and Maryland, it is questionable whether either could then seek his apprehension. Assuming that Maryland might, another round of extradition proceedings would begin. As to measures in the District Court, it appears at once that the bail statutes of the United States, 18 U.S.C. 3141-3152, to repeat, are not applicable, for this is *698 a civil proceeding. Perhaps a contempt citation with capias might be efficacious after an order to appear. But even then proceedings for his removal from the place of arrest to the Eastern District of Virginia could ensue. Cf. F.R.Crim.P. 40(b). All of these contingencies spell delay.
Discussion of these possibilities is solely to demonstrate that Brown now has further routes for the delay, and maybe defeat, of Maryland’s prosecution. It is suggested that the same uncertainties would exist even if the State had bailed Brown. However, that is the responsibility and concern of the State court. Certainly it does not excuse the intervention of the Federal court.
Now we are content to rely on a point of procedure to withhold remedy of the recounted disregard of the public interest. The refusal to direct vacation of the bail order is grounded exclusively on the State’s failure to appeal the District Court’s ruling. Incidentally, the Court forgives Brown for not appealing his application for bail, yet now penalizes the State for not appealing the grant of bail. The State is said to have thereby waived its right to object now to the bail. But the same argument would preclude Brown’s motion to change the bail conditions. If they were onerous, under the majority’s view he waived this objection by not appealing when they were imposed.
In my judgment neither of these conclusions is sound. The opportunity to review the entire bail order is still at hand, both for Brown and for the State. It is an interlocutory order — for the bail case is still open — and because of its very character necessarily remains fluid until the bail is satisfied or otherwise terminated. Either party may seek its complete alteration, or the State its dissolution, at any time. Actually, Brown’s move was in the nature of a motion to reconsider. I believe it was appropriate procedure, but I think the State has the same right. Brown reopened the case by asking for a modification of the bail conditions. Now the State asks recall of Brown’s enlargement on bail. Even if there was a waiver of this demand by the State at the first hearing, it was not irrevocable. Nor was Brown’s waiver.
I cannot agree that he may restrict us to a consideration of only such part of the bail order as he chooses to tender. The conditions of a bail bond or recognizance are integral parts of it; a motion upon them brings up the entire obligation for review. He cannot slice the bail issue so finely and, in this nicety, preclude our reconsideration of his release. If we have the power to cancel certain conditions of the bail, as Brown now contends and the Court holds, we have the right to reconsider it in toto.
I would direct rescission of the order and also direct revocation of the bail.
. The Federal Constitution prohibits only “excessive bail.” Although a persuasive argument can be made that this prohibition grants the right to bail on reasonable terms, see Foote, The Coming Constitutional Crisis in Bail, II, 113 Univ. of Pa.L.Rev. 1125 (1965), it cannot be denied that bail may be refused a person who may be unlikely to appear for trial. See Moore, Federal Practice Para. 46-05.
The pertinent Federal statutes provide only for bail in prosecutions for Federal crimes, 18 USC §§ 3141-3152 .
. Brown chose to proceed under Va.Code Ann. § 19-1-112, which applies only to cases where bail is refused in criminal cases. The extradition statute, applicable here, has its own provision for bail, § 19.1-66. Denial of bail under this provision can be challenged only through habeas corpus. See Va.Code Ann. §§ 19.1-59, 8-606.