Petition — Wallace v. Kern
Supreme Court brief1976
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Supreme Court, U. & |
FILED
In THE
Stat RODAK, JR., CLERK
Supreme Court of the United
cn
Octoser Term, 1975
DonaLtp Wa.ace, et al.,
Petitioners,
v.
Micuaet Kerry, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
DanreL L. ALTERMAN
Rosert M. Boru
c/o Center for Constitutional
Rights
853 Broadway
New York, New York 10003
Atvin J. Bronsterx
Nancy ©. CrisMan
National Prison Project
American Civil Liberties
Union Foundation
1346 Connecticut Avenue, N.W.
Washington, D.C. 20036
Counsel for Petitioners
StepHen M. Latter
579 Cortlandt Avenue
Bronx, New York 10451
———_—_—_——
—=
Opinions Below .ccccccccccccccccgeccccsesccsccese
JUPISGICELION cccccccccccvncccccescccssccsecesccees
Question Presented ....cccccccccccccccsvccccesecs
Statutory Provisions Involved ...csceeeceecccceess
Constitutional Provisions Involved ..........ee-:.
Statement of the Case eseeeeveeeeeeeeeeeneeeeeeeeeeee
INDEX
Page
ww nN NY NH FY
Reasons for Granting the Writ:
I.
Il.
III .
This case raises important questions in the
troubled area of state-federal judicial
relations, and requires the internretation
of the recent precedents of Gerstein v. Puph
and O'Shea v. Littleton, on which the court
below erroneously relied ......... seesece i)
The decision below flouts the hasic precepts
of federal civil rights jurisdiction by re-
quiring exhaustion of state judicial remedies
that are demonstrably inadequate to protect
petitionere® PAGRES ccccccccccccvcccecese 17
This case is important because the decision
below, which denied federal relicf in the
face of undisputed findings of massive and
regular constitutional violations, effectively
excludes an entire class of indisent persons
from the protection of the civil rights
SEACUCES cccccccccccccccccceccccscceseses 20
Conclusion *eeeveeveeeeeeeeeneeeeeneeeeeeeeeeneeeeeeeeee 22
Appendices
Opinion of the Court of AppoealS” .....seeeecaess la
Memorandum of the United States District Court 2la
ii
Order of the United States District Court .... 88a
Order Denying Petition for Rehearing .......-. 93a
CITATIONS
Cases
Allee v. Medrano, 416 U.S. 802 (1974). seeeeéeuase 9
Conover v. Montemuro, 477 F.2d 1073 (3rd Cir. 1972) 10
Doran v. Salem Inn, Inc., U.S. __, 43 U.S. ,
Law Week 5039 (June 30, 1975) .ccccvesseeeee: 9, 16
Ellis v. Dyson, 421 U.S. 426 (1975) weeeeeeeecees 9
Gerstein v. Pugh, 420 U.S. 103
CROFS) cescccosese eee 9, 10, 11, 13, 14, et passim
Hicks v. Miranda, __-U.S. __,_- 43: U.S.Law Week
4857 (June 24, 1975) cccccccccsccccccccccveces 9
Home Telephone and Telegraph Co. v. City of
Los Angeles, 227 U.S. 273 (1913) ...secceceees 18
Huffinan v. Pursue, Ltd., 420 U.S. 592 (1975) .. 9, 12
Kugler v. Helfant, 421 U.S. 117 (1975) ..s-eeeeee 9
Mitchum v. Foster, 407 U.S. 225 (1972) ....eeeee. :
Monroe v. Pape, 365 U.S. 167 (1961) ...... Sa
O'Shea v. Littleton, 414 U.S. 486 :
C1979) ccccccccess Terrier ty peeve” Oe Ws Be We BW
Perez v._Ledesma, 101 U.S. 82 (1971) ....eeeeeee : 10
Preiser v. Rodriguez, 411 U.S. 475 (1973) .....- : 9
Samuels v. Mackell, 40] U.S. 66 (1971) ....... wee 16
Schlesinsver v. Councilman, 420 U.S. 738 (1975)... 17
Stet'anclli v. Minard, 342 U.S. 117 (1951) .... 10, 1)
iii
Steffel v. Thompson, 415 U.S. 452 (1974) ...... 9, 16
Wallace v. Kern, 499 F.2d 1345 (2a4°Cir. 1974), cert.
denied, 420 U.S. 947 (1975)
Wallace v. Kern, 481 F.2d 621 (1973), cert. denied,
414 U.S. 1135 (1974)
Wallace v. Kern, 392 F.Supp. 834 (E.D.N.Y. 1973)
=
Wallace v. Kern, 371 F.Supp. 1384 (E.D.N.Y. 1973) 4
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ......... 18
Younger v. Harris, 401 U.S. 37
(1971) wc eweeececeeeee 8, 9, 10, 11, 12, et passim
Constitutional Provision
United States Constitution
Sixth Amendment
Cee cccccceccccccccccececcceces L
Statute
42 U.S.C. § 1983 ee 17, ‘21
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
DONALD WALLACE, et al.,
Petitioners,
v.
MICHAEL KERN, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE* UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
The petitioners Donald Wallace, et al., acting on behalf
of themselves and all others similarly situated, respectfully
pray that a writ of certiorari issue to review the judgment
and opinion of the United States Court of Appeals for the
Second Circuit entered in this proceeding on June 30, 1975.
OPINIONS BELOW
The opinion of the Court of Appeals is reported at 520
F.2d 400 and appears in the Appendix, infra, p. la. The
opinion of the United States District Court is unreported
and appears in the Appendix, infra, p. 2la. The order
of the United States District Court is unreported and
appears in the Appendix, infra, p. 88a.
JURISDICTION
The judgment of the United States Court of Appeals
for the Second Circuit was entered on June 30, 1975.
A timely petition for rehearing was denied on September -
9, 1975, and this petition for certiorari was filed within
ninety (90) days of that date. This Court's jurisdiction
is invoked under 28 U.S.C. § 1254(1).
QUESTION PRESENTED
Is a federal court, in a class action by pre-trial
detainees, barred by principles of comity from deciding a
claim that state court bail practices deny the plaintiffs
the due process of law?
STATUTORY PROVISIONS INVOLVED
42 U.S.C. § 1983 provides as follows:
Every person who, under color of any statute,
ordinance, regulation, custom or usare of any
State or territory, subjects or causes to be
subjected any citizen of the United States or
other person within the jurisdiction thereof
to the deprivation of any rights, privileres
or immunities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity or other
proper proceeding, for redress.
CONSTITUTIONAL PROVISIONS INVOLVED
Amendment XIV--Citizenship; privileges and
immunities; due process. ..
Section 1. All persons born or naturalized
in the United States, and subject to the juris-
diction thereof, are citizens of the United
States and of the State wherein they reside.
No State shall make or enforce any law which
shall abridge the privileges or immunities of
civizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection: of the laws.
STATEMENT OF THE CASE
This action was filed in July 1972 by seven indigent
pre-trial detainees incarcerated in the Brooklyn House
of Detention for Men, on behalf of themselves and all
other persons detained pending trial on felony indictments
in the Supreme Court of the State of New York in Kings
County (Brooklyn). The amended complaint sought declara-
tory and injunctive relief for systematic and widespread
deprivation of constitutional rights including, inter alia,
denial of the effective assistance of counsel, restric-
tions on access to the courts, failure to provide speedy
trials, coercion in obtaining guilty pleas, and denial of
reasonable bail.
Prior to the judgment now at issue, several aspects of
the case were litigated on motions for preliminary injunc-
tions. In May 1973, the District Court (Judd, D.J.) found
that the excessive caseloads of Legal Aid Society lawyers
violated petitioners’ Sixth Amendment rights, and granted
petitioners’ motion for preliminary relief in the form of
a@ caseload ceiling. The District Court also enjoined
the court clerk's practice of refusing to calendar pro se
motions submitted by petitioners who had counsel of record.
Wallace v. Kern, 392 F.Supp. 834 (E.D.N.Y. 1973).
The Court of Appeals reversed, holding that the Legal \id
Society does not act under color of state law, and that
comity considerations barred relief as to state court
calendar vractices. Wallace v. Kern, #81 F.2d 621 (1973).
cert. denied, 414 U.S. 1135 (1974).
Subsequently, the District Court found that the lengthy
pretrial delays suffered by many of petitioner's class
violated their right to a speedy trial, and it preliminarily
ordered that persons incarcerated pending trial for more
than six months (nine months in homicide cases) be tried
or released on their own recognizance within forty-five
days of their written request. Wallace v. Kern, 371 F.
Suop. 1384 (E.D.N.Y. 1974). The Court of Apveals reversed,
holding, that relief from unconstitutional trial delays
could not be granted prospectively to a class, though it
noted that "({ljenethy pretrial confinement continues to be
the rule in Kings County.” Wallace v. Kern, 499 F.2d 1345
(2d Cir. 1974), cert. denied, 420 U.S. 947 (1975).
The present petition arises from the plenary trial on
the remaining causes of action. The District Court denied
relief as to coercion of guilty pleas, holding that the ques-
tion of voluntariness must be determined individually and
not in a class action: it granted relief as to the facili-
ties for attorney-client consultation in the court buildings;
it found that the bail-setting practices of the state courts
of Kings County did not meet the requirements of the Due
Process Clause; and it dismissed the remainder of the com-
plaint. Only the ruling regarding bail practices was
appealed.
The District Court found the bail practices of the Kings
County courts constitutionally unsound. It based this
finding on evidence that bail was initially set in a per-
functory manner using incomplete and sometimes misleading
information, that accused persons were denied a sufficient
opportunity to present evidence regarding the need for
financial conditions to assure thelr presence at trial,
and that bail review in those courts was ineffective due
to the absence of statements of reasons for prior bail
determinations and to the long delays before any non-per-
functory review of bail conditions became available (Ap-
pendix at 28a-33a). The District Court further found that
an erroneous bail determination may lead to protracted
detention under squalid and oppressive conditions and to
the disruption of a person's family, social and economic
relationships; and more importantly, that the bail decision
may determine the outcome of the criminal case itself.
Persons who cannot make bail cannot help their attorneys
gather evidence and locate witnesses; they are dhondventensé,
both in plea bargaining and at sentencing after trial,
because they cannot show their ability to hold a job and/or
Stay out of trouble while the case is pending; and incar-
cerated persons suffer psychological stress leading to
severe anxiety and apathy and amounting to substantial
coercion to plead guilty rather than stand trial. Conse-
quently, the District Court found that persons detained
pending trial were more likely to be convicted than those
bailed or otherwise released; less likely to receive proba-
tion if convicted; and likely to receive a longer sentence
if sent to prison (Appendix at 42a-9 3a).
The District Court rejected the petitioners' claim that
money bail is per se a violation of equal protection, holding
that there is a compelling state interest in assuring, the
reappearance of accused persons and that money bail is not
discriminatory in all cases (Appendix at 60a-63a).. But the
court upheld the petitioners' vorocedural claims, stating
(Appendix at 84a):
"The due process clause, however, requires
that a decision which may result in prolonged
confinement shall be based on full cvaluation
of the facts, with an opportunity to present
or controvert any pertinent evidence and with
a written statement of the reasons why a par-
ticular bail determination is reached.
"The necessity of improvements in the bail
system is enhanced by the consider::le length
of time which frequently elapses in ore-trial
confinement in Kings County."
Because of the above-mentioned defects in the Kings
County bail practices, the District Court found that those
practices fall short of the requirements of due process,
and that the petitioners were therefore entitled to a
prompt evidentiary hearing, on the question of bail, and
to a statement of reasons for each bail determination.
These conclusions were embodied in an order providing
that incarcerated persons charged with felonies in Kings
County be entitled, if they so request, to an evidentiary
hearin on the necessity of financial conditions of pretrial
release. A hearing, could be recuested beginning 72 hours
after arraignment, or later if justificd by new evidence
or changes in facts. The prosecution would have the burden
of proving that financial conditions were necessary to
ensure the reappearance of the accused. The accused would
also be entitled to a written statement of the reasons,
including the facts relied on, for the setting of money
bail or for tne absolute denial of pretrial release.
In granting this relief, the District Court held the
rule of Younger v. Harris, 401 U.S. 37 (1971), inapplicable
because "({iJmproper pre-trial confinement would not be an
issue on a defendant's trial on the criminal charge" and
because the petitioners "are not seeking even interference
with any pending bail application, but an announcement of
{[their] constitutional rights. . . ." (Appendix at 82a-83a).
However, the Court of Appeals reversed the judgment insofar
as appealed from on the authority of Younger, holding that
t'.: District Court's decision constituted a "“fissiparous and
gratuitous" intrusion on the state's criminal process.
(Appendix at 19a). A motion for rehearing was timely filed
and was denied on September 9, 1975.
REASONS FOR GRANTING THE WRIT
I
THIS CASE RAISES IMPORTANT QUESTIONS IN THE
TROUBLED AREA OF STATE-FEDERAL JUDICIAL RELA-
TIONS, AND REQUIRES THE INTERPRETATION OF THE
RECENT PRECEDENTS OF GERSTEIN v. PUGH AND
O'SHEA v. LITTLETON, ON WHICH THE COURT BELOW
ERRONEOUSLY RELIED.
Relations between state and federal judiciaries in our
federal system have greatly concerned this Court in recent
years. See Doran v. Salem Inn, Inc., U.S. » 43
U.S.Law Week 5039 (June 30, 1975); Hicks v. Miranda,
U.S. ___, 43 U.S.Law Week 4857 (June 24, 1975); Ellis v.
Dyson, 421 U.S. 426 (1975); Kugler v. Helfant, 421 U.S.
117 (1975); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975);
Gerstein v. Pugh, 420 U.S. 103 (1975); Allee v. Medrano,
416 U.S. 802 (1974); Steffel v. Thompson, 415 U.S. 452
(1974); Preiser v. Rodriguez, 411 U.S. 475 (1973); Younger
v. Harris, supra. This case, unlike Younger v. Harris
and most of its progeny, is a class action seeking pro-
spective procedural relief, and requires this Court to
clarify its decision in Gerstein v. Push, supra, and the
effect of certain dicta in O'Shea v. Littleton, 414 U.S.
486 (1974).
In Gerstein v. Purh, supra, the plaintiffs sought an
injunction mandating that "probable cause" hearings be
10
held for state criminal defendants charged by information.
The defendant judges and prosecutors argued that such relief
was barred by principles of federal-state comity; this Court
stated (420 U.S. at 108, n. 9):
"The District Court correctly held that respon-
dents’ claim for relief was not barred by the
equitable restrictions on federal intervention
in state prosecutions, Younger v. Harris, 401
U.S. 37 (1971). The injunction was not directed
at the state prosecutions as such, but only at
the legality of pretrial detention without a
judicial hearing, an issue that could not be
raised in defense of the criminal prosecution.
The order to hold preliminary hearings could
not prejudice the conduct of the trial on the
merits. See Conover v. Montemuro, 477 F.2d
1073, 1082 (CA3 1972); cf. Perez v. Ledesma,
401 U.S. 82 (1971); Stefanelli v. Minard, 342
U.S. 117 (1951)." (emphasis supplied).
The District Court's order in the present case is virtually
identical in purpose and effect to that in Gerstein. It
"was not directed at the state prosecutions as such, but
only at the legality of pretrial detention" without an
adequate judicial hearing. That issue likewise "could not
be raised in defense of the criminal prosecution," and an
order to grant constitutional bail hearings "could not
prejudice the trial on the merits."
The Court of Appeals conceded the facial applicability
of this language, but went on to interpret it “in the light
of the factual and legal setting the Court encountered."
Appendix at 15a. The court below then cited the unavail-
11
ability of habeas corpus to test probable cause, and the
30-day or longer delay before other state remedies became
available, Gerstein, supra, 420 U.S. at 106, as distinguish-
ing Gerstein from the present case. However, the Gerstein
Court did not mention these facts in its discussion of
comity quoted above; there is nothing in the Gerstein
opinion to suggest that they were important to the question
of comity; and the distinction drawn is wholly unsupported
by the policies underlying the comity doctrine.
What this Court must do, and what the court below failed
to do, is to distinguish injunctive protection of procedural
rights, on the one hand, from abortion of state criminal
cases and interlocutory adjudications of the merits of
collateral issues, on the other. This distinction is expli-
cit in Gerstein and implicit in this Court's basic comity
decisions. The intervention condemned in Younzer v. Harris,
supra, was relief against the state porosecution as such, i.e.,
an injunction against enforcement of the underlying criminal
statute. In Stefanelli v. lMinard, 342 U.S. 117 (1951)--cited
by this Court in Gerstein--the plaintiff sought a federal
ruling that certain evidence was illegally seized and could
not be used against him, relicf that certainly would have
"prejudice[d] the trial on the merits" in the state court
and Involved the federal court in the piecemeal trial of
12
collateral issues. In Huffman v. Pursue, Ltd., supra, the
Younger rule was extended to certain civil proceedings; as
in Younger, the challenge was to the constitutionality of
the relevant statute, and the relief sought was an injunc-
tion against the state court proceedings as such (i.e.,
against execution of the judgment). Huffman, supra, 420 U.S.
at 598-99. Citing Huffman, the court below stated that it
would be "anomalous" to apply Younger in a civil action in
which the state has "some concern" but not to bail-setting,
in which the state has "a most profound interest.” Appendix
at l3a. This view fails to recognize that the applicability
of Younger depends not just on the interest underlying a
state proceeding, but also on whether the relief contemplated
would abort or pre-empt that proceeding. The order in
this case clearly would do neither.
The Court of Appeals' reliance on O'Shea v. Littleton,
supra, is equally erroneous and underlines the need for this
Court to spell out the criteria for applying the Younger rule.
O'Shea turned on the absence of a case or controversy, a
matter not in issue here. The court below looked instead
to the extensive dicta of that case, which condemned the
possibility of an “ongoing federal audit of state criminal
proceedings," 414 U.S. at 500; and it declared: "This is
precisely the mischief created by the order below. . . .
13
{TJhe order would permit a pre-trial detaince who cla‘xed
that the order was not complied with to proceed to the fede-
ral court for interpretations thereof. This would constitute
not only an interference in state bail hearing procedures,
but also the kind of continuing surveillance found to be ob-
jectionahle in O'Shea." Appendix at l3a-1l4a. The alleration
in O'Shea was that certain state judges were making decisions
intended to discriminate racially and to deter the exercise
of First Amendment rights. 414 U.S. at 491-92. The relief
contemplated would have involved monitoring the content of
state court decisions with the purpose of altering those
decisions. By contrast, the District Court's judgment ad-
dressed only the absence of procedural rights as in Gerstein
v. Pugh, and enforcement would be restricted to assuring
that procedural requirements were complied with. Any claim
that a bail hearing yielded the wrong result or considered
sepreper factors, or that a statement of reasons was wrong or
inadequate, would properly be raised in the state courts.
This would not “indirectly accomplish the kind of interference
that Younger v. Harris, suora, and related cases sought to
prevent," O'Shea, 414 U.S. at 500, nor is it "the kind of
continuing surveillance found to be objectionable in O'Shea"
(Appendix at l4a). It is no more intrusive than the "further
proceedings" directed by this Court in Gerstcin v. Purh,
14
supra, 420 U.S. at 126.
Moreover, the use of O'Shea to defeat the petitioners’
reliance on Gerstein turns stare decisis on its head and
indicates a need for this Court to clarify the relationship
of the Gerstein holding to the earlier O'Shea dicta. The
Court of Appeals could not agree "that the Gerstein Court
intended to overrule O'Shea in a footnote which did not even -
discuss it." Appendix at 19a. However, since the O'Shea
Court found no case or controversy present, those portions
of the opinion relied on below are dicta, with no precedential
value. O'Shea, supra, 414 U.S. at 504-05 (Blackmun, J.,
concurring in part), and cases cited. Moreover, the Gerstein
comity holding, whether stated in a footnote or not, was
essential to the decision of the case, since a contrary
holding would have prevented the Court's reaching the merits.
That holding, unanimously concurred in (Gerstein, supra,
420 U.S. at 126 (Stewart, J., concurring]), properly governs
this case.
Finally, the Court of Appeals' disposition of the case
is founded on a further mistnterpretation of Gerstcin v. Purh,
and it deserves this Court's attention because it suggests a
radical deprivation of a trial court's normal remedial powers.
The court below stated that "the federal court did not invite
15
state officials to submit a plan for a bail hearing which
would be consistent with due process requirements," but
instead "directed its own procedures for state hearings
in considerable detail."® Appendix at 18a. This was viewed
as contrary to the language in Gerstein stating that the
nature of the probable cause hearing should be "shaped to
accord with a State's pretrial procedure viewed as a whole,"
and that "flexibility and experimentation" are desirable.
420 U.S. at 123. Gerstein, however, did not hold that the
federal courts are bound by the proposals of state author-
ities in remedying unconstitutional court practices. Such
a holding would be self-defeating. Instead, the Gerstein
Court ruled on the merits of the petitioners’ claim and then
remanded "for further proceedings consistent with [that]
opinion." 420 U.S. at 126. Nothing in Gerstein suggests
that the District Court here acted improperly in entering
its order; and if it erred on the merits, the proper
disposition is to correct that error and remand as in Gerstein.
The decision below is not just technically incorrect. It
is inconsistent with this Court's cautious course of decision
*This is incorrect. The District Court's order was, in
fact, entered after submission of proposed orders by both
parties' counsel and a subseouent conference attended by
counsel for both parties und amicus curiae. The final
order incorporated features of: both plans and was desirned
expressly to fit in with existing state pretrial procedures.
16
in the delicate area of state-federal comity. Prior decisions
have involved a nice balancing of the interests of the state
and federal governments and of the litigants, with respect
to the specific relief sought. For example, declaratory
relief has been found permissible as to threatened, but not
pending, state prosecutions. Compare Steffel v. Thompson,
supra, with Samuels v. Mackell, 401 U.S. 66 (1971). Persons
who complied with a challenged ordinance pending a federal
decision were treated differently from those who violated it
and were then prosecuted. Doran v. Salem Inn, Inc., supra.
The court below failed to weigh the actual interests at
stake when it equated the sweeping intervention condemned
in O'Shea v. Littleton, supra, with the clear and limited
order of the District Court. It failed to discuss the
concrete interests of the petitioners in obtaining the
order's protection or to analyze the actual interference
of the order with state policies. It identified no interest
of the state in avoiding fairer bail proceedings. It did
not even mention the requirement of a statement of reasons
outside the summary of facts, though the issues that require-
ment raises are quite different from those surrounding the
evidentiary hearins reauirement. This Court should make
it clear that the requirements of comity, in this case as
in Steffel and in Salem Inn, turn on real-world practicalities
17
and not on abstractions or formalities, and it should spell
out the nature of the interests to be considered in the co-
mity analysis.
II
THE DECISION BELOW FLOUTS THE BASIC PRECEPTS
OF FEDERAL CIVIL RIGHTS JURISDICTION BY REQUIRING
EXHAUSTION OF STATE JUDICIAL REMEDIES THAT ARE
DEMONSTRABLY INADEQUATE TO PROTECT PETITIONERS'
RIGHTS.
In rejecting the District Court's views on comity, the
Court of Appeals relied heavily on the existence of state
remedies and the petitoners' failure to seek relief in the
state courts. By now it is familiar that under 42 U.S.C.
§ 1983, state remedies "need not be first sought and refused
before the federal one is invoked." Monroe v. Pape, 365 U.S.
167, 183 (1961).* The decision below is flatly inconsistent
with that principle; but more importantly, it consigns the
petitioners to a system of state remedies that cannot protect
their rights.
®The rule of Younger v. Harris, supra, is in effect a
limited exhaustion requirement. See Schlesinger v. Council-
man, 420 U.S. 738, 756 (1975). However, as argued in Point
T, it applies only to those matters which are to be resolved
in the state criminal process, can be raised in defense of the
criminal prosecution, and/or implicate the merits of some part
of the criminal case. Gerstein v. Pusth, supra, 420 U.S. at
108, n. 9. It does not require exhaustion with respect to
procedural claims that are not at issuc either it trial or
on a bail application, and it certainly docs not require
bringing a separate state procceding, in addition to defending
the criminal case, before bringing a federal action.
—
18
At trial, petitioners presented evidence and argument
that the procedures employed by the state courts in Kings
County do not meet constitutional standards of due process,
and the District Court found in their favor (see Statement
of the Case, supra, pp. 5-8). Dismissing these findings,
the Court of Appeals stated (Appendix at 17a):
". . . It is clear that the New York statutory
provisions afford unlimited opportunities for
bail applications and, while plaintiffs charac-
terize them as constitutionally suspect since
the court below condemned their perfunctory
application, there was in fact no finding that
the statutes are constitutionally vulnerable
but rather that the attorneys and judges are
proceeding without assuring plaintiffs due
process. We have found no New York cases con-
struing the New York bail procedure statutes
to deny plaintiffs the evidentiary hearing
mandated;. . ." (footnotes omitted).
It is settled beyond doubt that the administration of
law can deny rights as completely as the laws themselves,
Yick Wo v. Hopkins, 118 U.S. 356 (1886), end that federal
remedial authority extends to the denial of constitutional
rights whether or not they are authorized by state law.
Home Telephone and Telegraph Co. v. City of Los Angeles,
227 U.S. 278 (1913). Moreover, the Civil Rights Act was
specifically directed at situations "where the state
remedy, though adequate in theory, was not available in
practice." Monroe v. Pape, supra, 365 U.S. at 174. The
Court of Appeals’ position, that the existence of theoretical
19
state remedies precludes federal scrutiny of their adequacy,
is ultimately circular and exalts form over substance.*
. The court below also emphasized that pre-trial detainees
may petition for a writ of habeas corpus and appeal the
denial thereof in the state courts. ' Appendix at 15a. That
fact has no bearing on the question of comity, as Gerstein
v. Pugh, supra, illustrates. There, two avenues of obtaining
a probable cause determination in the state courts apparently
existed, but they were not given any weight because a "sub-
stantial period” passed before they bevame available. Ger-
stein, supra, 420 U.S. at 106. Where an individual seeks
redress for an incorrect bail decision, collateral, appellate,
or other delayed remedy must be held sufficient, since some
error is inevitable in any human institution. But when
there is a systematically unconstitutional procedure affect-
ing the liberty of an entire class of persons, collateral
or appellate relief for individual victims of that procedure
is inadequate. They are entitled, as in Gerstein, to a con-
stitutionally sound procedure at the outset of the deprivation
of liberty, not after the delay of an appeal or of 2 separate
*The Court of Appeals also incorrectly stated that "“eviden--
tiary-type hearings are now granted" in a special bail review
part. In fact, only oral argument is permitted, and most
defendants only gain access to this s:1rt some months after
they are arrested. Appendix at 32a-33a.
20
proceeding. They are also entitled, as in Gerstein,
to class-wide prospective relief to ensure their rights.
. III
THIS CASE IS IMPORTANT BECAUSE THE DECISION
BELOW, WHICH! DENIED FEDERAL RELIEF IN THE
FACE OF UNDISPUTED FINDINGS OF MASSIVE AND
REGULAR CONSTITUTIONAL VIOLATIONS, EFFECTIVELY
EXCLUDES AN ENTIRE CLASS OF INDIGENT PERSONS
FROM THE PROTECTION OF THE CIVIL RIGHTS
STATUTES. _ "
Petitioners proved at trial, and the District Court
found, that the defendant judicial officers routinely set
bail for members of petitioners' class on the basis of in-
complete or misleading information at hearings which do not
meet the standards of due process, and then fail to provide
the most elementary due process requirement, a statement of
reasons for the action taken. The Court of Appeals did
not dispute or question any part of these findings; instead,
it reversed without reaching the merits. It held, in effect,
that federal courts cannot enjoin unconstitutional state
court practices unless (a) the illegality is authorized by
state statute or case law (see Point II), (b), the issue
cannot be litigated in the state courts, defensively, affirm-
atively, directly, or collaterally (see Point II), and (c)
the federal court permits the perpetrators of the wrong, to
decide what relicf will be granted against them (Potnt T).
This is not a rule of federalism or equitable restraint; it
<2 ee
21
approaches a sweeping rule of immunity from federal injunc-
tive relief. This result contradicts the explicit holding
of this Court that § 1983 was intended by Congress to protect
constitutional rights from unlawful judicial action. Mitchum
v. Foster, 407 U.S. 225, 240-42 (1972).
The decision tbeiow thus abdicates federal responsibility
in an area where federal protection of individual rights is
most crucial. No useful purpose is served thereby. Denying
accused persons an adequate-bail hearings and a statement of
reasons for bail decisions serves no leritimate purpose of
state or federal government or of the public. It guarantees
that some persons will be mistakenly detained, at great cost
to themselves, their families, and society, and others mis-
takenly released, at freat cost to the administration of
justice. It will also serve to undermine confidence in the
fairness of our judicial process among, al]. those who pass
through it or witness it.
Further, the decision below denles federal court protection
to those who are least able to defend themselves otherwise.
It is a truism that state courts, too, are bound to follow
the Constitution. But in the overburdened criminal court
systems of our larye cities, where rishts are dented not by
incorrect rules of law but by default, nerlect, and adminIis-
22
trative breakdown, the absence of a federal forum for the
clear articulation of constitutional rights may render those
rights nugatory. The urgency of this need is underscored
by petitioners' position. Criminal defendants generally
are drawn from the dispossessed and powerless of society.
Within this group, the present petitioners are doubly nower-
less. They are mostly black and Hispanic; they are poor,
they are uneducated, they are unemployed; and most crucially,
they are locked in squalid cages and denied effective means
to make their voices heard in any other public forum. They
are truly the defenseless of the nation. If the federal
courts will not defend their rights, then they will have
no rights.
CONCLUSION
For the reasons stated above, a writ of certiorari should
be granted to review the judgment and opinion of the Second
Circuit.
Respectfully submitted,
Alvin J. Bronstein Daniel L. Alterman
Nancy C. Crisman Robert M. Boehm
National Prison Project Center for Constitutional Rights
American Clvil Liberties 853 Broadway
Union Foundation, Inc. New York, New York 10003
1346 Connecticut Avenue,
N.W. Stephen “%. Latimer
Washiny;ton, D.C. 20036 579 Cortlandt Avenue " @
Bronx, New York 10451
APPENDIX
ee
ne ee
la
UNITED STATES COURT OF APPEALS
For tHE Seconp Circuir
nities
No. 1128—September Term, 1974.
(Argued May 23, 1975 Decided June 30, 1975.)
Docket No. 75-2069
+r
Donatp Watuace, et al., on behalf of themselves and all
others similarly situated who have matters pending in
the Criminal Term of the Supreme Court of the State
of New York, Kings County,
Plaintiff s-A ppellees,
—against—
MicuakEt Kern, Outver D. Wiiuiams, Jacos J. Schwartz-
WALD, individually and as Justices of the Supreme Court
of the State of New York, Kings County and Vincent
D. Damiant, etc., et al.,
Defendants-A ppellants.
+o?
Tue Untrep States or AMERICA ex. rel.
MicHakEt A. McLavcH1y, et al.,
Plaintiff s-A ppellees,
—against—
Tue Peorrz or THE State oF NEw YorkK, THE PEOPLE OF
THE Crry or New York, THE CuHrer PRESIDING JUSTICE
oF THE SuPREME Court oF THE STATE oF New York, et al.,
Defendants-A ppellants.
2a
MicHaEL A. McLavuecHuin, et al.,
Plaintiff s-A ppellees,
—against—
Tue PEoPpLE OF THE STATE OF NEw York, et al.,
Defendants-A ppellants.
Before:
Mo.uican and Gurren, Circuit Judges
and Pouuiack*, District Judge.
+o
Appeal from an order of the United States District
Court for the Eastern District of New York, Hon. Orrin
G. Judd, J., mandating the granting on demand of evi-
dentiary hearings on the issue of bail to pre-trial detainees.
Reversed insofar as appealed from.
+o
StepHen M. Latimer, Bronx, New York (Daniel
L. Alterman, Robert Boehm, William M.
Kunstler, Center for Constitutional Rights,
New York, N.Y.; James Reif, National
Lawyers Guild, New York, N.Y.; Alvin J.
Bronstein, Nancy Crisman, National Prison
Project, Washington, D.C.), for Plaintiffs-
Appellees.
Strantey L. Kantor, Asst. Attorney General
(Louis J. Lefkowitz, Attorney General,
State of New York, Samuel A. Hirshowitz,
First Asst. Attorney General, Margery E.
Reifler, Asst. Attorney General, of Coun-
sel), for Defendants-Appellants.
° Of the Southern District of New York, sitting by designation.
3a
Wiiuiam GauiacHer, Pierce Gerety, Jk., RoBERT
Hermann, N.Y.U. Law School, for Amicus
Curiae Legal Aid Society, New York, New
York.
+or
Muuuican, Circuit Judge:
This is an appeal from a final judgment entered March
26, 1975 in the United States District Court for the East-
ern District of New York, Hon. Orrin G. Judd, Judge,
mandating a variety of new bail procedures in the Supreme
and Criminal Courts of Kings County, New York. The
judgment was entered in accordance with a memorandum
decision of Judge Judd dated February 14, 1975 (as yet
unreported). We reverse.
I.
This action was commenced in July 1972 as a class ac-
tion pro se by a group of inmates awaiting trial or sen-
tencing in the Brooklyn House of Detention for Men. As
twice amended, the complaint, brought pursuant to 42
U.S.C. $1983 and 28 U.S.C. §§ 2201-2202, stated eight
claims for relief. The named defendants include the
Justices of the Supreme Court of Kings County, as well
as local administrative officials and court personnel. In
gist, the plaintiffs alleged (a) that the burgeoning criminal
caseload in the Kings County Supreme Court has caused
excessive pre-trial delays and the consequent confinement
of unconvicted detainees for prolonged periods of time in
violation of their constitutional rights; (b) that the in-
earceration of indigent detainees unable to make bail vio-
lates the equal protection and due process clauses of the
1 The various claims for relief are set forth in Wallace v. Kern, 499
F.2d 1345, 1347 n.2-(2d Cir. 1974), cert. denied, 95 8. Ct. 1329 (1975).
ha
Fourteenth Amendment; and (c) that various practices
have the effect of intimidating and coercing detainees
into pleading guilty rather than stand trial.
This case has been on appeal in this court twice before.
Wallace v. Kern, 481 F.2d 621 (1973) (per curiam), cert.
denied, 414 U.S. 1135 (1974) (Wallace I); Wallace v. Kern,
499 F.2d 1345 (1974), cert. denied, 95 S.Ct. 1329 (1975)
(Wallace II). In Wallace I, Judge Judd had granted an
application for a preliminary injunction against the Legal
Aid Society’s acceptance of any additional felony cases in
the Kings County Supreme Court if the average caseload
of its attorneys exceeded 40. The district court also had
ordered the Clerk of the Criminal Term of the Kings
County Supreme Court to place on the calendar all pro se
motions filed by inmates of the Brooklyn House of Deten-
tion. This court reversed on the grounds that jurisdiction
under section 1983 was absent since the Society was not
acting under color of state law and that the court lacked
power to intervene in the internal practices of the state
courts. In Wallace II, Judge Judd had granted an ap-
plication for a preliminary injunction ordering that each
detainee held for trial for more than six months be allowed
to demand a trial and be released on his own recognizance
if not brought to trial within 45 d°ys of his demand. This
court reversed on the ground that questions concerning the
right to a speedy trial are properly to be determined on
a case-by-case basis rather than by a broad and sweepinz
order.
In this final stage of the case, the plaintiffs claimed that
procedures in the state courts regarding bail are arbitrary
and unreasonable. As a remedy, although not specified in
the complaint, the plaintiffs sought improvements in the
physical facilities of the courts so that attorneys migh*
adequately consult with clients unable to post hai!: an
evidentiary hearing on the question of bail within 72 hours
5a
after arraignment; and a written statement by the judge
of his reasons for fixing bail at any point when a bail
decision is made. The plaintiffs also sought a declaration
that current practices have a coercive effect on a detainee
in regard to his decision whether to plead guilty or stand
trial. After hearing numerous witnesses,? Judge Judd made
findings of fact and conclusions of law on these issues,
A. Bail Practices in Kings County
Despite much improvement since the commencement of
this action,’ Judge Judd found that criminal justice in
Kings County is beset by lengthy delays which have an
effect upon bail procedures. These begin in the Criminal
Court when the defendant is arraigned after his arrest and
bail is first set. There is provision for a preliminary hear-
ing within 72 hours but this is usually adjourned. If a
hearing is held, bail may be reduced or the defendant may
be released on his own recognizance, but, according to the
findings below, this also rarely occurs. A defendant may
2 Among those who testified at the hearing, which lasted seven trial
days between July 25, 1974 and October 18, 1974, were several pri-
soners, one Criminal Court Judge, three Supreme Court Justices, five
Legal Aid Society lawyers, two Assistant District Attorneys, a psy-
chiatrist, a sociologist and two law professors.
3 For example, there was testimony that the information-gathering
process with regard to the records of detainees in the Kings County
Supreme Court has improved. Judge Judd recognized that the Supreme
Court has undertaken a variety of administrative steps, including in-
creasing the number of criminal parts, which have lessened trial de-
lays. In the first few months of 1974, the number of defendants await-
ing trial for nine months or more and six months or more was reduced
in each case by over 30%. The Supreme Court has also imposed a lim-
itation upon the number of cases that can be handled by Legal Aid
Society lawyers in ordef to provide defendants with more effective
representation. The Society has developed a new system designed to
provide continuity of representation by a single attorney for each case.
Administrative measures have been taken to ensure efficient production
of prisoners in court.
6a
remain incarcerated for 45 days before he is indicted on
a felony charge and his case proceeds to the Supreme
Court. See N.Y. Crim. Proc. Law § 190.80. At the arraign-
ment in Supreme Court, a de novo bail proceeding is held.
The district court found, however, that those not released
before this point generally remain incarcerated.
Several weeks after arraignment, a defendant’s case will
be called in the conference part for the purpose of dis-
posing of the case by plea, if possible. At this time, the
defendant may apply for bail review. A few weeks there-
after, the case will be assigned to a trial part. Further bail
review applications may be filed in the motion part and
considered in the trial part. If the defendant still is unable
to meet bail, he may apply in Part 10, a special bail review
section of the Supreme Court. Finally, a defendant may
apply in the Supreme Court for habeas corpus, with review
in the Appellate Division.‘
Judge Judd found that certain sources of information
relative to the bail decision are of great significance, namely,
the New York State Criminal Investigation Information
Service (NYSIIS) report and an ROR (Release on Own
Recognizance) sheet. The NYSIIS report contains a list-
ing of all of the defendant’s arrests, but is usually incom-
plete with respect to the dispositions of those cases. The
ROR sheet contains information on a defendant’s back-
ground and community ties. While the Pre-Trial Service
Agency, an organization funded by the federal and state
governments which provides information to the court to
assist it in making decisions on bail, endeavors to verify
the assertions in the ROR sheet, Judge Judd found that
in most cases it is unable to do so prior to the initial bail
hearing. Bail proceedings in Criminal Court are very brief
4 The district court found that there is no limit to the number of
times a defendant can apply for bail review.
eo + ew
7a
and the determinations made therein are often based upon
incomplete or inadequate information. The court found
that consideration is often given to open charges in the
NYSIIS report but denied as to unverified favorable infor-
mation in the ROR sheet.
Despite the fact that the factors underlying the bail deci-
sion of the Criminal Court judge are not known to him,'
the arraigning Justice in the Supreme Court, Judge Judd
found, seldom changes that decision, giving “[s]ubstantial
weight” to the initial determination of the Criminal Court
judge. In the conference part, the defendant sees a Justice
only if he agrees to plead guilty. While a majority of
applicants in Part 10 are granted bail reductions, Judge
Judd noted that there was testimony “that the bail set in
Part 10 could have been met if it had been set earlier.’
On the basis of these facts, Judge Judd reached certain
conclusions of law.
B. Conclusions of Law
Relying upon Morrissey v. Brewer, 408 U.S. 471 (1972)
and its progeny, the district court held that due process
requires “that a decision which may result in prolonged
confinement shall be based on full evaluation of the facts,
5 The Administrative Judge of the Criminal Court has directed the
judges to put the reasons supporting their bail decisions in writing on
the bail papers. The district court found that, although many judges
put such reasons in the record, only a few write them on the papers.
Moreover, the record of bail proceedings is not transcribed.
6 The plaintiffs submitted to the court a copy of a computer study
made in New York County which concluded that a person under in-
earceration has a lesser chance of being cleared, avoiding prison or
obtaining a short sentence than one out on bail. The district judge
noted some facts a! out the study which tended to limit its applicability
to this case. Nonetheless, he found that a detained person has poorer
prospects for vindication at trial or probation if convicted than does
a defendant who has been released.
8a
with an opportunity to present or controvert any pertinent
evidence, and with a written statement of the reasons why
a particular bail determination is reached.” To correct the
inadequate bail determination procedures which he found
to exist in Kings County, Judge Judd ordered that an evi-
dentiary hearing be had on demand at any time after 72
hours from the original arraignment and whenever new
evidence or changes in facts may justify. At the hearing,
the People would be required to present evidence of the
need for monetary bail and the reasons why alternate forms
of release would not assure the defendant’s return for trial,
and the defendant would be permitted to present evidence
showing why monetary bail would be unnecessar,. The
defendant was also held to be entitled to a written state-
went of the judge’s reasons for denying or fixing bail.’
7 The order of the district court provides in pertinent part as follows:
(3) OrpEReD, ADJUDGED AND DECLARED, pursuant to 28 U.S.C.
Sec. 2201, that a criminal defendant, charged with a felony in
Kings County 2nd confined at any institution under ibe care, cus-
tody and control of the defendant Department of Correction be
entitled
(a) to a hearing at which the People shall recommend what torm
of security if any, would secure the defendants’ appearance in
Court and, only if monetary bail is recommended, the People shail
present evidence of the need therefor, and the reasons why alter.
native conditions of security should not be available; and at which
the defendant shall be present and may present evidence cognizable
by the court on the factors negating the need for money bail,
which hearing shall be had, on written or oral demand, and on
five days notice to the People, at any time after 72 hours after
arraignment or as new evidence or changes in facts may justify
thereafter ;
(b) the prosecution shall have the burden of proving the need
for monetary bail and shall state the reasors why non-financial
conditions of release, as well as other financial alternatives pre-
scribed by state statute (CPL Sec. 520.10) will not assure the
accused's reappearance at trial.
(ce) this evidentiary hearing must be given within five (5) days
after a demand is made or at the next scheduled court appearance
of the defendant whichever is sooner.
9a
The court below dismissed the rest of the complaint except
as indicated.'
II
The State on appeal urges that the final order of the
court below in effect mandates a wholesale reform of
the New York State bail system which constitutes an
untoward interference with the state judicial system and
violates established principles of comity and federalism.
O’Shea v. Littleton, 414 U.S. 488 (1974); Younger v.
Harris, 401 U.S. 37 (1971). There is no doubt that this
court in its two prior reversals of the court below con-
sidered that the orders issued there constituted an im-
proper intervention in the internal procedures of state
courts. The broad order of Wallace II provided that all
(d) the demand may be made orally in open court or in writing,
pro se or by counsel.
(e) if the demand is made in writing it shall specify informa-
tion sufficient to identify the defendant and shall also set forth
the current conditions under which the defendant may be released
and in the case of alleged new evidence or changes in circum-
stances, the new circumstances or evidence;
(f) pretrial inearceration of sixty days shall be a change in
facts sufficient to justify a de novo bail hearing; and it is further
(4) ORDERED, ADJUDGED AND DecLaRepD that a criminal defendant
is entitled to receive a written statement of the reasons for deny-
ing or fixing hail ineluding the facts relied on and to have a
de novo bail hearing upon five (5) days notice to the Peorle, if
he/she is held in custody without a written statement of reasons
for the instant bail determination. . . .
8 The district court directed certain defendants to file with the court
a plan for assuring privacy for conferences between an attorney and
his inearcerated client. The court rejected plaintiffs’ claim that condi-
tions in Kings County tended to effectively coerce guilty pleas, on the
ground that claims of coercion of guilty pleas are to be decided on a
case-by-case basis. The court also concluded that a monetary bail system
does not constitute per se a violation of the equal protection clause of
a Amendment. These rulings are not questioned on this
appeal.
10a
detainees after six months be allowed to demand trial and
be released on their own recognizance if not brought to
trial within 45 days. In reversing, this court ruled that
federal courts
must limit their inquiry to the specific facts regard-
ing a complaining petitioner. Relief from unconsti-
tutional delays in criminal trials is not available in
wholesale lots. Whether an individual has been denied
his right to a speedy trial must be determined ad
hoe on a case-by-case basis.
499 F.2d at 1351.
While the court below held that the issue of the effect
of delay on the coercion of guilty pleas had to be deter-
mined on a case-by-case basis, it apparently considered
the evidence developed at the hearing sufficiently com-
pelling, despite the prior admonitions of this court, to
mandate pretrial evidentiary bail hearings on demand.
The order below, in thus proceeding to legislate and en-
graft new procedures upon existing state criminal prac-
tices affecting all fe’ony inmates in Kings County confined
in any institution under the care, custody and control of
the Department of Corrections, so that pending as well
as future bail applications are affected, necessarily im-
poses upon us the duty of deciding the threshold question
raised by the defendants—is the intrusion violative of the
principles of comity and federalism as defined by the
Supreme Court in Younger and its recent holdings which
have broadened the doctrine of abstention.
In a recent explication of Younger in Huffman v. Pursue,
Ltd., 95 S. Ct. 1200 (1975), Mr. Justice Rehnquist, writing
the majority opinion, reiterated that federal injunctions
against the “state criminal law enforcement process”
could be issued only “ ‘under extraordinary circumstances
lla
where the danger of irreparable loss is both great and
immediate.’” Id. at 1206, quoting from Fenner v. Boykin,
271 U.S. 240, 243 (1926). The Court again announced the
twofold policy basis for non-intervention in state pro-
ceedings :
1) The recognition, both congressional and judicial, that
federal courts should permit state courts to try state
cases and that, if constitutional issues arise, the state
court judges are fully competent to handle them, since
they are bound by the Federal Constitution under Article
VI.
2) The traditional doctrine that a court of equity should
no its hand when a movant has an adequate remedy at
w.
Both of these factors were reiterated by Mr. Justice
Powell in an even more recent opinion, Schlesinger v.
Councilman, 95 S. Ct. 1300, 1311-12 (1975). See also
Kugler v. Helfant, 95 S. Ct. 1524, 1530-31 (1975).
Although the court below did in its findings of fact note
that state habeas relief was available to the plaintiff class
with provision for appeal to the Appellate Division, there
is no reference to the availability of this remedy in that
part of the opinion which rejected the argument that prin-
ciples of comity and federalism precluded the issuance of
the order on review here. The court below found Younger
abstention inappropriate primarily because in that case
and in Samuels v. Mackell, 401 U.S. 66 (1971) a federal
court sought to prevent the prosecution of a state criminal
trial, while the issue here involved the necessity of revi-
sions in bail proceedings in order to prevent improper
pre-trial confinement, which would not be an issue on a de-
fendant’s trial on a criminal charge.’
9 The district judge further commented that the plaintiffs were not
seeking interference with a criminal trial or any pending bail applica-
12a
The proposition that the principles underlying Younger
are applicable only where the federal court is seeking to
enjoin a pending state criminal prosecution is not sup-
portable.”° Certainly this court in Wallace I and II did
not agree. In Wallace I this court warned that “ ‘under
the principle known as comity a federal district court has
no power to intervene in the internal procedures of the
state courts.’” 481 F.2d at 622.
More significantly, in Huffman vy. Pursue, Ltd., supra,
the Court broadened Younger abstention to preclude fed-
eral interference in certain state court civil actions in
which the state had a particular interest."! This court had
previously refused to intervene in pending bar association
tion but merely a declaration of rights. Although the complaint here
does not even seek an evidentiary hearing in its prayer for relief, the
order appealed from is mandatory and orders the defendants to pro-
vide a new procedure set forth in the order to supplant existing prac-
tice. That can only be characterized as an interference with the state
criminal process in both pending and future hail proceedings. The
court's reference to Steffel v. Thompson, 415 U.S. 452 (1974) is there-
fore not apposite.
10 In fact, the Supreme Court has recently stated: “. . . we now hold
that where state criminal proceedings are begun against the federal
plaintiffs after the federal complaint is filed but hefore any proceed.
ings of substance on the merits have taken place in the federal couit,
the principles of Younger v. Harris should apply in full force.” Ticks
v. Miranda, 45 U.S.L.W. 4857, 4862 (June 24, 1975). The argument
that plaintiff indictees in state criminal cases were denied the right
to the assignment of counsel and were therefore entitled to mandatory
injunctive relief was held to be without merit by this court in Fed-
rosian Vv. Mintz, slip op. 4245 (2d Cir. June 20, 1975). This court spe-
cifically rejected the contention that Younger v. Harris was not a»-
plicable since the assignment of counsel was merely collateral to the
prosecution of the indictee appellants. Id. at 4251.
11 The pending civil proceeding in Huffman v. Pursue, Ltd. was an ac-
tion under a statute which provided that a place erhibiting obscene
films was a nuisance. The state's interest there was in prohibiting the
exhibition of pornography, and this interest was expressed in criminal
statutes related to the nuisance statute under which the state was
moving against the appellee. 95 S. Ct. at 1208.
13a
disciplinary proceedings in Erdmann vy. Stevens, 458 F.2d
1205 (2d Cir.), cert. denied, 409 U.S. 889 (1972), and,
fortified by Huffman, that holding was reiterated in two
subsequent holdings of this court in Anonymous v. Associa-
tion of the Bar of the City of New York, slip op. 2715, ——
F.2d —— (1975) and Anonymous J. v. Bar Association of
Erie County, slip op. 2711, —— F.2d —— (1975). It would
indeed be anomalous to hold that Younger abstention is
applicable in certain civil actions in which the state has
some concern but not to a bail application proceeding in
which the people of the State of New York have a most
profound interest. The assurance that a defendant who
has been indicted for a crime be present to stand his state
trial and be sentenced if convicted is patently of prime
concern to the state.
The defendants here also rely upon O’Shea v. Littleton,
supra. The plaintiffs in O’Shea brought a class action
against two state court judges alleging that they had
engaged in racially discriminatory bail and sentencing
practices. Although the Court held as a threshold matter
that the plaintiffs lacked standing to bring the action, it
proceeded at considerable length to state that Younger-
type abstention principles were in any event applicable.
The Court considered that the order proposed by the Court
of Appeals, which would have required continuous report-
ing on the judges’ bail and sentencing actions, would con-
stitute an “ongoing federal audit of state criminal pro-
ceedings which would indirectly accomplish the kind of
interference that Younger v. Harris, supra, and related
eases sought to prevent.” 414 U.S. at 500. This is precisely
the mischief created hy the order below. Having provided
for new bail hearing procedures which fix the time of, the
nature of and even the burden of proof in the evidentiary
hearings, the order would permit a pre-trial detainee who
lha
claimed that the order was not complied with to proceed
to the federal court for interpretations thereof. This would
constitute not only an interference in state bail hearing
procedures, but also the kind of continuing surveillance
found to be objectionab!e in O’Shea.
The plaintiffs on appeal urge that the O’Shea dicta are
inapplicable in light of a more recent opinion of the Su-
preme Court, Gerstein v. Pugh, 95 S. Ct. 854 (1975), de-
cided February 18, 1975. We cannot agree and find that
case distinguishable factually and legally from the one on
appeal. In Gerstein, two state prisoners commenced a sec-
tion 1983 action seeking both declaratory and injunctive
relief to enforce their constitutional right to a judicial
hearing on the issue of probable cause for detention. They
had been arrested in Dade County, Florida under a pros-
ecutor’s information which, according to the procedure
of that state, precluded any right to a preliminary hearing
to determine if continued detention was justified by prob-
able cause. The district and circuit courts had ordered the
Dade County defendants to give the plaintiffs an immediate
preliminary hearing and also ordered them to submit a
plan, subsequently adopted, providing for preliminary hear-
ings in all eases instituted by information. Such hearings
were to he fully evidentiary and adversary in nature, with
the right of the defendant to call and cross-examine wit-
nesses. While the Court held intervention appropriate, it
disagreed with the holding on the merits below that evi-
dentiarv hearings were constitutionally mandated.
The reasoning of the Gerstein Court on the intervention
issue does not materially assist the plaintiffs here. With
respect to the issue of comity and federalism. the plain-
tiffs relv on footnote 9 in the Gerstein opinion, 95 S. Ct. at
860. which is set forth in its entirety in the margin.” Al-
12 “The District Court correctly held that respondents’ claim for re-
lief was not barred by the equitable restrictions on federa) intervention
15a
though this language is certainly facially supportive of the
plaintiffs’ position here, it is elementary that what the
Court said must be viewed in the light of the factual and
legal setting the Court encountered. As we have already
noted and as plaintiffs concede, the Younger doctrine is
based not only on a reluctance to interfere with state court
processes, but also on the refusal to afford equitable relief
when adequate remedies at law exist. It is significant,
therefore, that the Supreme Court’s opinion in Gerstein
emphasizes at the outset that the federal plaintiffs there
had no right to institute state habeas corpus proceedings
except perhaps in exceptional circumstances and that their
only other state remedies were a preliminary hearing which
could take place only after 30 days or an application at
arraignment, which was often delayed a month or more
after arrest. 95 S. Ct. at 859. We do not consider this dis-
cussion feckless.
In sharp contrast with the Florida practice, New York
procedures, as indicated in our summary of the facts, pro-
vide that a pre-trial detainee may petition for a writ of
habeas corpus in the Supreme Court (N.Y. C.P.L.R.
§ 7002(b)(5)), that its denial may be appealed (N.Y. C.P.
L.R. § 7011) and that an original application for habeas
may be made in the Appellate Division of the Supreme
Court (N.Y. C.P.L.R. 7002(b)(5)). In addition, in Conover
v. Montemuro, 477 F.2d 1073 (3d Cir. 1973), cited by the
Supreme Court in Gerstein, as we point out in footnote 12
infra, hoth the majority and concurring opinions empha-
in state prosecutions, Founger v. Harris, 401 U.S. 37... (1971). The
injunction was net directed at the state prosecutions as such, but only
at the legality of pretrial detention without a judicial hearing, an
issue that could not be raised in defense of the crimina] prosecution.
The order to hold preliminary hearings could not prejudice the con-
duct of trial on the merits. See Conover v. Montemuro, 477 F.2d 1073,
1082 (CA3 1973); ef. Perez v. Ledesma, 401 U.S. 82 . . . (1971);
Stefanelli v. Minard, 342 U.S. 117 .. . (1951).”
léa
sized the unavailability of state remedies. Hence, the lan-
guage in footnote 9 of Gerstein must be read in the full
context of the Younger rule, which rests on principles of
equity as well as comity. When so considered, it is clearly
not decisive of this issue."
In addition, we note that the district court conclusion
in the Gerstein case that Younger did not apply was spe-
cifically coupled with the finding that Florida had consis-
tently held that detainees such as the plaintiffs in that case
were not entitled to a preliminary hearing of any kind.
13 We recognize, of course, that exhaustion of state judicial remedies
is not required in actions bronght under section 1983. Preiser v. Rod-
riguez, 411 U.S. 475, 477 (1973); McNeese v. Board of Education,
373 U.S. 668 (1963); Monroe v. Pape, 365 U.S. 167, 183 (1961). This
rule does not, however, alter the traditional equitable principle that a
plaintiff seeking equitable relief must demonstrate that no adequate
remedy at law exists and that, absent injunctive relief, he will suffer
irreparable injury. This point is made clear in Allee v. Medrano, 416
U.S. 802, 814 (1974). In Potwora v. Dillon, 386 F.2d 74, 77 (2d Cir.
1967), Judge Friendly said that the Supreme Court, in announcing
the non-exhaustion rule for 1983 cases,
surely had no intention to abrogate in civil rights cases the his-
toric rule . . . that swits in equity shall not be sustained in courts
of the United States “in any case where a plain, adequate and
complete remedy may be had at law.”
Accord, Appalachian Volunteers, Inc. vy. Clark, 432 F.2d 530, 537 (6th
Cir. 1970), cert. denied, 401 U.S. 939 (1971); Engelman v. Cahn, 425
F.2d 954, 958 (2d Cir. 1969). cert. denied, 397 U.S. 1009 (1970);
Wright v. McMann, 2°87 F.2d 519, 523 (2d Cir. 1967); Silverman v.
Browning, 359 F. Supp. 173, 176-77 (D. Conn. 1972), aff'd on the
opinion below, 411 U.S. 941 (1973). See also Bradley v. Judges of
Superior Court, 372 F. Supp. 26 (C.D. Calif. 1974); Harrington v.
Arceneauz, 367 F. Supp. 1268 (W.D. La. 1973).
In Conover v. Montewuro, 477 F.2d 1073, 1081 (3d Cir. 1973), a
1983 case relied upon in the opinion below and by the plaintiffs here,
Judge Gibbons for the majority noted that the court knew of no Penn-
sylvania procedure which might permit a test of the legality of the
adjudication of delinquents. It seems fair to assume that, had there
been some such procedure, or if, on the remand ordered there, one were
discovered, equitable relief would have been held to be barred, as
suggested hy Judge Adams in his concurring opinion, 477 F.2d at 1092,
wherein state habeas was mentioned as a possible legal remedy afford-
ing adequate relief.
17a
332 F. Supp. 1107, 1111-12 (S.D. Fla. 1971). This is impor-
tant since to come within the Younger rubric, as re-em-
phasized in Huffman v. Pursue, Ltd. and Schlesinger v.
Councilman, supra, a plaintiff must establish “irreparable
harm.” However, in the record before us there is no indi-
eation that any plaintiff ever even asked for an evidentiary
hearing. On the contrary, the record indicates that two
state judges not only testified that no evidentiary hearing
on a bail application had ever been requested by anyone,
but that if one had been demanded it would have been
granted.* In fact, in Special Term Part 10 in Kings County
evidentiary-type hearings are now granted. It is clear
that the New York statutory provisions afford unlimited
opportunities for bail applications’® and, while plaintiffs
characterize them as constitutionally suspect since the court
below condemned their perfunctory application, there was
in fact no finding that the statutes are constitutionally vul-
nerable but rather that the attorneys and judges are pro-
ceeding without assuring plaintiffs due precess. We have
found no New York cases construing the New York bail
procedure statutes to ceny plaintiffs the evidentiary hear-
ing mandated"*; on the contrary, in United States ex rel.
Shakur v. Commissioner of Corrections, 303 F. Supp. 303,
308 (S.D.N.Y.), aff'd, 418 F.2d 243 (2d Cir. 1969) (per
curiam), cert. denied, 397 U.S. 999 (1970), Judge Palmieri
14 Judge Judd’s order does not require that an evidentiary hearin:
always be held: vnder the order a hearing need be held only when the
detainee requests it. We repeat that none of the plaintiff class has
even made the request.
15 See footnote 4 supra.
16 Several New York cases suggest that a hearing might be required
by 2 New York court upon application therefor. See People ez rel.
Sincer v. Corbett, 26 App. Div. 2d 770, 271 N.Y.S.2d 921, 923 ‘4th
Dep't 1966); People v. Terrell. 309 N.Y.S.2d 776, 786 (Monroe Cty.
Ct. 1970): People v. Bach, 61 Mise. 24 630, 306 N.Y.S.2d 365, 368
(Dutchess Cty. Ct. 1970).
18a
considered the necessity of an evidentiary hearing on appli-
cation for bail in the New York County Supreme Court
and said that it was a matter for the state court’s discre-
tionary decision. In affirming Judge Palmieri’s opinion
this court characterized it as “a careful opinion....” 418
F.2d at 244.
Plaintiffs argue that the intrusion upon the domain of
the state sought in O’Shea was much more significant than
that sought here, which they argue is comparable to that
approved in Gerstein. Since the federal courts have not
been loathe to interfere where charges of racial bigotry are
bruited, the refusal to intercede in O’Shea on grounds of
comity and federalism is indeed significant. But we cannot
agree that the order below is less pervasive than in Ger-
stein. Here, the federal court did not invite state officials
to submit a plan for a bail hearing which would be consis-
tent with due process requirements. It rather directed its
own procedures for state hearings in considerable detail.
This constitutes, in our view, federal judicial legislation
which is not only offensive to state sensibilities but is con-
trary to the admonition in Gerstein on this very point:
There is no single preferred pretrial procedure, and
the nature of the probable cause determination usually
will be shaped to accord with a State’s pretrial pro-
cedure viewed as a whole. While we limit our holding
to the precise requirement of the Fourth Amendment,
we recognize the desirability of flexibility and experi-
mentation by the States.
95 S. Ct. at 868.
In view of these decisive distinctions between Gerstein
and the present case, we consider that it does not provide
assistance to the plaintiffs here but, on the contrary,
strengthens the stand of the defendants. We cannot, more-
19a
over, agree that the Gerstein Court intended to overrule
O’ Shea in a footnote which does not even discuss it. Indeed,
the Court’s later opinion in Huffman evinces an even
greater respect for comity by extending it to state civil
litigation in which there is a state interest. In sum, we hold
that, under Younger and its further explication in recent
Supreme Court cases, the order entered below, insofar as
appealed from, must be reversed. The order created an
intrusion upon existing state criminal process which is
fissiparous and gratuitous and it further ignored the prior
rulings of this court on appeals in this case.
We would be remiss if we did not indicate, as this court
has before on appeals in this case, that we are conscious
of the concern of the court below for the conditions which
the hearings it has conducted have brought to the atten-
tion of the public. The court below noted that there are
judges, prosecutors and Legal Aid attorneys who are
striving valiantly to achieve prompt trials. A motivating
factor in the recognition of urgency and in the improve-
ments which have already occurred is undoubtedly the
activity of Judge Judd. However, we are not ombudsmen
charged with the responsibility of reforming the state
penal svstem.’’ The hearings held below establish that
pre-trial delay is due to a variety of factors, not the
least of which are the staggering increase in crime in
Kings County, lack of facilities, lack of judges on the
bench and counsel at the side of those acensed of crime,
plus the increasing demands on the time of those charged
17 At the outset of the opinion below, the court said:
Governor Hugh L. Carey, in his inaugural address on January 1,
1975, said that
“{T]he criminal justice system in New York does not work.”
This memorandum deals with another effort to enlist the help
of federal courts in making the state criminal justice system work
hetter.
20a
with the responsibility of assuring prompt and even-
handed justice. Because of our position of abstention we
do not discuss the merits here but do note the observa-
tion of the Supreme Court in a comparable situation in
Gerstein:
Criminal justice is already overburdened by the
volume of cases and the complexities of our system.
The processing of misdemeanors, in particular, and
the early stages of prosecution generally are marked
by delays that can seriously affect the quality of
justice. A constitutional doctrine requiring adversary
hearings for all persons detained pending trial could ©
exacerbate the problem of pretrial delay.
95 S, Ct. at 867 n. 23 (emphasis added).
Reversed insofar as appealed from.
2la
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DONALD WALLACE, et al. . . . on behalf of
themselves and all others similarly
situated, who have matters pending in
the Criminal Term of the Supreme Court
of the State of New York, Kings County,
Plaintiffs,
- against -
MICHAEL KERN, OLIVER D. WILLIAMS, JACOB
J. SCHWARTZWALD, . . . individually and
as Justices of the Supreme Court of the
State of New York, Kings County; and
VINCENT D. DAMIANI, individually and as
Administrative Judge of the Supreme
Court of the State of New York, Kings
County; EUGENE GOLD, individually and
as District Attorney for Kings County;
BENJAMIN MALCOLM, individually and as
Commissioner of Correction of the City
of New York; . . . JOSEPH MANGANO,
individually and as Chief Clerk of the
Supreme Court, Kings County; JOSEPH PARISI,
individually and as Clerk of the Criminal
Term of the Supreme Court, Kings County,
Defendants.
THE UNITED STATES OF AMERICA ex rel.
MICHAEL A. McLAUGHLIN, et al. ...
Plaintiffs,
- against -
THE PEOPLE OF THE STATE OF NEW YORK;
(Caption continued)
72 C 898
73 Cc 53
22a
THE PEOPLE OF THE CITY OF NEW YORK;
THE CHIEF PRESIDING JUSTICE of the
Supreme Court of the State of New York;
and all ASSOCIATE JUDGES of the State
of New York; NATHAN SELKIN, Chief Clerk,
Appellate Division, Second Judicial
Department; JOSEPH PARISI, Chief Clerk,
Supreme Court, state of New York; THE
LEGAL AID SOCIETY of the City of New
York; GEORGE SPANAKOS, Administrator,
State of New York, County of Kings,
Defendants.
MICHAEL A. McLAUGHLIN, et al. ...
Plaintiffs,
- against -
THE PEOPLE OF THE STATE OF NEW YORK;
THE PEOPLE OF THE CITY OF NEW YORK;
THE CHIEF PRESIDING JUSTICE of the
Supreme Court of the State of New York;
and all ASSOCIATE JUDGES of the State
of New York; THE LEGAL AID SOCIETY,
CRIMINAL DEFENSE DIVISION of the City
and State of New York; THE NEW YORK
STATE ADMINISTRATOR, County of Kings,
Defendants.
73 Cc 113
februayr 14, 1975
Appearances:
DANIEL L. ALTERMAN, Esq.
ROBERT BOEHM, Fsq.
WILLIAM M. KUNSTLER, Esq.
C/o Center for Constitutional Rights
STEPHEN M. LATIMER, Esq.
23a
Appearances (continued)
JAMES REIF, Esq.
National Lawyers Guild
ALVIN J. BRONSTEIN, Esq.
NANCY CRISMAN, Esq.
National Prison Project
Attorneys for Plaintiffs
MICHAEL A. McLAUGHLIN, Plaintiff
Pro Se
HILLEL HOFFMAN, Esq.
Assistant Attorney General
Attorney for State Defendants
A. MICHAEL WEBER, Esq.
Assistant Corporation Counsel
Attorney for defendant Department of Correction
JuDD, J.
MEMORANDUM AND DECISION
Governor Hugh L. Carey, in his inaugural address
on January 1, 1975, said that
"[T])he criminal justice system in New York does
not work."
This memorandum deals with another effort to enlist
the help of federal courts in making the state criminal
justice system work better.
Qua
In this civil rights class action, on behalf of
felony defendants housed in Brooklyn House of Detention
for Men (BHD), the court has completed the trial of the re-
maining issues, relating to bail practices in the Criminal
Parts of the Kings County Supreme Court and to alleged coercion
of guilty pleas resulting from those practices.
In connection with bail practices, plaintiffs
assert that state procedures are "uniformly arbitrary and
unreasonable" and that this court ought to direct that there
be
(1) a de novo evidentiary hearing within 72 hours
after arraignment in the Criminal Court or in the Supreme
Court on indictment,
(2) a written statement of reasons for fixing bail
at each stage where a bail determination is made, and
(3) improvements in facilities so that attorneys
may have meaningful consultations with clients who are held
in default of bail.
In connection with guilty pleas, plaintiffs ask
for a declaratory judgment that the cumulative impact of
existing practices exerts a coercive effect on the choice
25a
whether to plead guilty or demand a trial.
In earlier decisions, the court has dealt with
two other principal claims, first that plaintiffs' rights
to counsel was impaired by the excessive caseload of Legal
Aid Society attorneys, and second that plaintiffs' overlong
confinement denied their constitutional right to speedy
trials. Both matters were decided for the defendants by
the Court of Appeals, after initial grants of relief by
this court, 481 F.2d 621 (2d Cir. 1973), cert. denied, 414
U.S. 1135, 94 S.Ct. 879 (1974); 499 F.2d 1345 (2d Cir. 1974).
With respect to the caseload of Legal Aid attorneys,
the Kings County Supreme Court has, without the compulsion of
an injunction, reduced it to approximately the level re-
commended by this court. With respect to trial delays, there
appears to have been a degree of improvement, but still short
of what this court considers to be constitutional requirements.
At the hearings on the bail and coerced plea issues,
the court heard six prisoners, one Criminal Court judge,
three Supreme Court justices, the director of the Pre-Trial
Services Agency, five Legal Aid Society attorneys, a
26a
psychiatrist, a sociologist, two law professors, two
Assistant District Attorneys, a representative of the De-
partment of Correction, and a former preSident of the Legal
Aid Society. In addition, the court has considered numerous
depositions, and sheaves of exhibits, statistics and com-
pilations. The last memorandum of law following the hearings
was filed on December 17, 1974. -
Facts
Bail procedures must be considered in the context
of trial delays, which continue in spite of strenuous efforts
to remedy them. Even after many improvements in the period
of more than two years since this case began, trial times
are still far from the goals set in 1972 by the New York
Legislature, which require that the People be ready for trial
within 90 days after the confinement of a prisoner in a jail
case and within six months after arrest in a bail case.
Criminal Procedure Law § 30.30. Accurate statistics proved
to be elusive, but Justice Damiani, the Assistant Admini-
strative Judge in charge of the Criminal Branch of the
Supreme Court in the Second Judicial District, testified in
September 1974 that the July 31, 1974 figures showed 347
defendants in jail more than six months and 223 more than
27a
nine months. On December 31, 1972 there had been 644
defendants who had been at BHD more than six months, and
nearly half that number over a year. See Memorandum dated
May 10, 1973, in this case.
Of the last ten Supreme Court trials in which the
Legal Aid Society had been involved, as testified on October
18, 1974, the defendants had been in jail for periods ranging
from 184 to 521 days. The accompanying exhibit showed that
the ten trials resulted in one conviction on the charges,
three convictions for lesser felonies or misdemeanors, one
dismissal and five acquittals. In July 1973, when a similar
report was made by the Legal Aid Society of the most recent
trials, the defendants had been in jail for an average period
of from 10 to 14 months (300 to 420 days), and two out of
seven were acquitted,
Keith Ryan, one of the named plaintiffs in this
case, with no prior felony arrest, spent fourteen months in
jail, and ultimately was acquitted.
28a
The Existing Bail Practices
The bail system in the Kings County Supreme Court
is a multi-stage process. It begins in the Criminal Court
when the defendant is arraigned after his arrest and bail
is set for the first time. There is a theoretical second
appearance in the Criminal Court within 72 hours for the ;
preliminary hearing, but this is usually adjourned. At the
preliminary hearing, if one is held, bail may be reduced
or the defendant may be released on his own recognizance
(ROR), but testimony indicates that this seldom occurs un-
less there is a guilty plea or a substantial reduction in
the charges. There may be a delay of 45 days before indict-
ment of a defendant charged with a felony, with the defendant
held in jail. (Defendants charged with felonies must be
released on their own recognizance unless indicted within
this period. Criminal Procedure Law § 190.80) Within a
week or two after indictment, a defendant will be arraigned
in Supreme Court. Although it was stated that at the
Supreme Court arraignment there is in essence a de novo
bail hearing, it was conceded that generally "those who are
in stay in, and those who are out, stay out."
29a
Within a few weeks after his Supreme Court arraign-
ment, the defendant's case will be called in the conference
part, to determine whether a plea bargain can be arranged;
at that time he may again apply for bail review. Within
a few more weeks the case will be assigned to a trial part,
and bail review applications may be filed in the motion
part and considered in the trial part. A further application
in Part 10 is permissible if the defendant still cannot meet
his bail requirements. Applications in the Supreme Court
for habeas corpus are also available, and may be reviewed
in the Appellate Division.
During the Criminal Court stage, inadequate in-
formation and inadequate access to counsel adversely affect
the defendant's possibility of release pending trial. The
average bail proceeding takes only about two to five minutes.
The prior criminal record is a major factor in determining
both whether bail wiil be required and the amount of bail.
The existence of a prior criminal record is initially de-
termined by a report of The New York State Criminal Investi-
gation Information Service (NYSIIS), which in turn is based
on the F.B.I. fingerprint record. The NYSIIS report contains
a record of all arrests, but it is incomplete with respect
30a
to dispositions in from 75% to 90% of the cases. Determin-
ing what happened after the arrests is a time-consuming job,
especially for arrests outside of Kings County, and is rarely
done,
The personal history and roots in the community
are another important factor in determining whether bail will
be required and the amount of bail. These facts are based on
an ROR sheet (Release on Own Recognizance). The Pre-Trial
Service Agency is now available to check the various items
on the ROR sheets, but in most instances it is not possible
to verify facts favorable to a defendant before the initial
bail hearing. Open charges on the NYSIIS report are often
given weight, and unverified favorable facts on the ROR sheet
are often denied weight. The testimony in this case justifies
a finding that more defendants would be released on their own
recognizance or on low bail if more information could be
verified at an early stage,
Most defendants who are held in jail for non-
homicide charges have a prior criminal record. This was true
of the named plaintiffs in this case. No statistics were
provided to show the relative number of first offenders and
3la
of people with records who fail to return to court if re-
leased after arrest. Professor Harry Subin of New York
University Law School testified concerning the opinion of
unnamed bail bondsmen that there was a greater risk with an
amateur than with a professional criminal. Supreme Court .
Justice Irwin Brownstein testified that a subconscious fear
of new crimes being committed while a defendant was at large
formed a factor in bail determinations.
Bail review at the Supreme Court arraignment seldom
results in the release of a defendent who has been in jail
since his arrest. Substantial weight is given to the initial
determination of the Criminal Court Judge, although the basis
of his determination is not before the court. Even if the
Criminal Court Judge explained on the record the reasons for
fixing a particular bail, the minutes of the hearing are never
available in the Suprem: Court. Arraignments in the Supreme
Court, like those in Criminal Court, usually take from two to
five minutes, Most attcrneys lack time to investigate case
cispositions or verify information on the ROR forn. Supreme
Court Justice Damiani said that he accepts the defendant's
statements concerning the disposition of open charges and
has found them to be accurate 95% of the time, but many
32a
arraignment judges treat defendants’ statements as suspect.
In the conference part the defendant does not see
a judge unless he agrees to plead guilty. He is kept ina
holding pen, where his attorney may consult with him to re-
port any plea offers.
Some measure of bail relief is available in Part
10, where Mr. Justice Hyman Barshay has been sitting for
three years, since the part was created. The records show
that he has granted bail reductions in a majority of the
cases that came before him. No information was provided
as to the number of defendants who were able to obtain their
release after Part 10 bail reductions, but there was testi-
mony for plaintiffs that the bail set in Part 10 could have
been met if it had been set earlier. The average person
whose boil motion comes on in Part 10 has been in jail at
least two or three months, often as long as a year or more,
and sometimes as long as two years. Justice Barshay makes
the decision on bail reduction after hearing oral arzument
from a defendant's attorney, which includes information on
length of incarceration, age, background, occupation, roots
in the community, court appearances, and the gravity of the
33a
charges. Cases where he releases a defendant on his own re-
cognizance are generally those where he has been in a long
time and the gravity of the charges is not great.
Mr. Justice Damiani testified concerning the
urging by Chief Judge Charles D. Breitel to improve the
situation. He gave his opinion that in many instances a
defendant in jail can get a trial within six months. The
court believes that this may be true of a man whose attorney
makes constant and vigorous motions for bail reduction and
speedy trial; but the many burdens on lawyers, and the
low level of fees provided under Article 18-B of the County
Law mean that in practice the ordinary defendant in jail
cannot get a trial until his regular turn. In individual
cases, where this court has directed release unless there is
a speedy trial, the Supreme Court has afforded a trial.
On over-all bail release, the director of the Pre-
Trial Services Agency testified that about 43% of all defen-
dants were released at their initial arraignment, and about
10% or 15% at some later Stage. It appears that considerable
weight will be given to an employer or clergyman's support
of a request for release or for low bail.
Little use is made of any alternative forms of
bail other than cash or a surety bond. Even the forms
34a
prepared for use by judges are geared to make release with-
out bail harder, for the rubber stamps which are provided
have spaces only for the amounts of insurance company bonds
or cash bail. Any other form of release must be written
out by the judge.
With respect to evidentiary hearings, Judge William
H. Booth, who has served for five and a half years on the
Criminal Court, testified that he had received no request for
an evidentiary hearing, but that he would grant one if re-
quested. He also said that subsequent information would
frequently justify parole or a reduced bail. The decision,
however, is often influenced more by the original bail de-
termination than by new facts. A Legal Aid witness said that
the evidence to be presented at the proposed hearing after
72 hours would consist mainly of a verified ROR sheet,
a Pre-Trial Services report, and a completed NYSIIS form, if
the other agencies could cooperate in checking the information.
With respect to statements of reasons for fixing
bail, it appears that Judge Ross, who had been the Administra-
tive Judge of the Criminal Court, sent a memorandum to the
judges directing them to put reasons in writing on the papers
35a
for bail determinations. While many judges put such reasons
in the record, only a few write them on the papers. Since
the record is not transcribed, the reasons are not available
for consideration by the Supreme Court Justice.
. Concerning the risk of non-appearance by a defen-
dant, the director of the Pre-Trial Services Agency (PTSA)
reported that the skip rate on persons released on their own
recognizance was out 8%, of which only about 4% were wilful.
Some non-appearances are a result of misunderstanding or
illness or simply inability to find the part of the court in
which the defendant was supposed to reappear. Of those
detainees whom PTSA recommended for release on their ow
recognizance, the skip rate shows as low as 2%, with higher
rates on those whose qualifications for release could not be
verified. However, the director testified that in an
"expanded release" program in February, 1974 when 66% of all
defendants were released on their own recognizance, the skip
rate was only 8.7%, which did not show a valid statistical
difference from the general rate.
The Pre-Trial Services Agency has experimented
with a supervised release program, which involves cooperation
36a
with community agencies to assume some responsibility for
defendants who are released pending trial. For a ten-month
period it reported that only 3.2 percent of a total of 377
scheduled appearances resulted in the issuance of a bench
warrant. The possible expansion of this program was not
explored.
lo correlation was shown between the percentage of
defendants who failed to appear and the seriousness of the
crimes charged, or the number of prior convictions. In fact,
the attorney in charge of the Criminal Defense Division of
the Legal Aid Society asserted that the skip rate was lower
on more serious charges. The evidence on this particular
point was inadequate to support a finding by the court.
A collateral point which was not covered by any
evidence is the source of bail. It is common knowledge that
in a substantial number of cases bail is not posted by the
defendant but by a relative, friend or organization. No
percentage statistics are available.
There is no limit to the number of times that any
defendant can apply for bail review.
37a
The Study in the Bellamy Case
Plaintiffs submitted to the court a copy of a
study made in New York County in connection with the Legal
Aid Society's attack on the bail system before the First
Department Appellate Division in John Bellamy, et al. v.
The Judges and Justices Authorized to Sit in the New York
City Criminal Court and the New York State Supreme Court in
New York County. The citation of the case and a discussion
of the opinion appears later in this memorandum. The study
in Bellamy was made by Eric W. Single, a doctoral candidate
in sociology at Columbia University, who was assoc_ated with
the University Bureau of Applied Social Research and a teacher
of Methods of Social Research at City College. An analysis
of 287 closed cases showed that a man out of jail has twice
as good a chance of being cleared, of avoiding prison, or of
having a short sentence, as the man in jail, regardless of
the type of crime, the existence of a confession, the finding
of evidence on his person, the existence of aggravating cir-
cumstances, the prior criminal record, the strength of family
ties, or the employment status at the time of arrest. The 857
cases included 790 which arose and were finally disposed of
in the Criminal Court, and 67 which arose in either the
38a
Criminal Court or the Supreme Court but were ultimately
disposed of in the Supreme Court.
An opposing affidavit by Judge Irving Lang, Super~
vising Judge of the Criminal Court for New York County,
asserted that there were actually dispositions shown for only
736 of the 857 sample cases and that the remaining 121 were
subject to bench warrants issued for non-appearance between
conviction and sentencing. The raw material for the Bellamy
study, in the Appellate Division file, includes 100 pages of
computer printouts prepared by Calculogic Corporation and
approximately 170 pages of opposing affidavits relating to
bail practices generally and to individual cases included in
the Legal Aid Society study.
Dr. Single presented live testimony to this court.
He described a further study of 120u cases that he had made
in 1973, again showing that the outcome for people on bail
is better than for those who remain in jail. This study,
however, was only of Criminal Court cases. He was not
familiar with ROR sheets, or with the Pre-Trial Services
Agency, or Manhattan bail review procedures, and could net
say whether Manhattan and Brooklyn were fully covparable.
39a
Access to Counsel
Facilities for consultation between counsel and an
incarcerated defendant are admittedly inadequate. Efforts
to improve the facilities have been made, but state court
officials did not claim that they are presently anywhere near
an optimum standard.
In the Criminal Court, Legal Aid Society attorneys
consult their clients in a bullpen area about 15 feet long
and 10 feet wide, containing two benches, but no tables or
desks, and usually occupied by a number of defendants, up
to 40, together wich correction officers and police officers.
Interviews are conducted while the attorney and client are
standing up. Defendants are frequently reluctant to talk
frankly about their cases. The lack of privacy and of quiet
impose a severe obstacle to the creation of any satisfactory
lawyer-client relationship. Private attorneys and 18-B
attorneys must speak to their clients on a bench within the
courtroom, and are not permitted access to the bullpen.
In the Supreme Court the situation is not much
better, except that the third floor facilities have been
greatly improved during the course of this action. There are
40a
no courtroom holding cells and it sometimes takes from 10 to
15 minutes to get a prisoner from the fourth floor holding
cells to the ninth floor for an appearance in court. On the
ninth floor, there is no suitable piace for a conference be-
tween the defendant and his attorney.
Justice Damiani said in September that he hoped to
put up panels to give more privacy to attorney-client inter--
views. No timetable was set up, however.
The provisions for visitation at detention centers
are also unsatisfactory. Deleys in getting an inmate from
the cell block to the counsel room at BHD permit an attorney
to see only one or two defendants in a morning or afternoon
session. A visit to Rikers Island is a long trip and re-
quires half a day to see one inmate. Consequently, many
lawyers wait until a client is produced in court before con-
sulting with him,
The compensation of 18-B attorneys is still limited
to $10 an hour for time out of court (less than the charge for
labor on automobile repairs) and $15 per hour for time in
court. Mr. Justice Brownstein testified that fee applications
even at these rates are frequently reduced by the Appellate
4la
Division.
Effects of Incarceration
Various forms of prejudice were shown to result .
from prolonged incarceration. Because it is difficult for
a white lawyer or investigator to speak with persons in the
black or Hispanic communities, incarceration hampers contact
with potential defense witnesses. Witnesses who might
have been available are often lost; the prosecution also
suffers from delay and the resultant attrition of witnesses,
but to a lesser degree. Defendants are likely to lose jobs
which they could retain if released, or which an employer
might keep open for a brief time. Their family relationships
are impaired. Inmates suffer from personality changes, a
feeling of helplessness, a loss of faith in the judicial
process, and emotional upsets.
Whether an inmate is convicted or acquitted, his
period in jail is a period that is useless, or nearly so.
If he is acquitted, there is no way to compensate him for
the time that he has lost or the personal hardships that he
has suffered. If he is convicted, he has lost the opportunity
for rehabilitation, which is one of the basic purposes of
sentencing. BHD and QHD lack the facilities for vocational
42a
training, education, recreation and adjustment to honest
labor, which penal institutions seek (however unsuccessfully)
to provide. There are a substantial number of such programs
at both BHD and QHD, but they are restricted in capacity by
the physical layout of the buildings and by limitations of
staff and budget.
A defendant's opportunity for early parole, if
convicted, is impaired because he has not been able to build
up a record with the prison authorities during the time for
which he has been in pre-trial detention. The psychiatrist
at BHD states that a state prisoner who knows his sentence
is in a much better psychological situation than a pre-trial
detainee who is under the anxiety of not knowing when he will
be tried or what the result of the trial may be. Even in
matters like recreational activity, medical care and dertal
care, the pre-trial detention facilities are inferior to the
services provided up-state for sentenced prisoners.
The court finds that trial results are likely to be
is at
less favorable for a prisoner in jail than for one who is a
large, though the extent of the difference cannot be defined.
5
The man who is in jail is also less likely to be given probation,:
43a
Alleged Coercion to Plead Guilty
With respect to coerced pleas, no specific examples
were shown of any defendant who was in fact innocent and who
pleaded guilty because of the length of his confinement.
However, Samuel H. Dawson, then the Assistant Attorney in
Charge of the Legal Aid Society's Brooklyn office, testified
that many defendants asserted their innocence, but took
guilty pleas in order to get out of jail. Although there was
some evidence that the best plea offers are made at the be-
ginning of a case, he testified that on many occasions a
defendant may be offered a misdemeanor plea or a one-year
sentence followed by probation and that such an offer is
hard to resist when the jail time has already been served
before trial. Professor Bernard Segal of Golden Gate Uni-
versity testified that there is coercion to accept less than
the defendant's full constitutional rights, and to give up
believable defenses in exchange for the termination of lengthy
pre-trial confinement. Mr. Justice Damiani also said that
the length of stay in jail may tend to coerce a guilty plea.
In the end, 90% to 95% of all defendants plead
guilty. About 25% of the pleas are received at the time of
44a
the conference, Most of the rest come when the District
Attorney moves the case for trial, or at the time of trial,
or just after a suppression hearing. In the state courts ~
the denial of a motion to suppress may be reviewed on appeal
from a guilty plea.
Several improvements in procedure have been accom-
plished during the two and a half years thatthis case has been
in process. A "vertical" system has been introduced by the
Legal Aid Society to endeavor to provide continuity of
representation by the same attorney throughout a case. The
number of criminal parts has been increased from 20 to 37.
The Sedase have been directed to try the oldest jail cases
first.
Non-production of prisrners in court has been re-
duced. "Record cards" are now supposed to accompany a de-
fendent to and from court. Instcuctions have been givon that
a date for the next court appearance by the defendant wust be
entered on the card before he is returned to the place of
detention, so that there will be a definite rezovd to cssure
his production on the next date. The percentage of prisoners
produced in court has increased from 80% to 95%, although
45a
not all are there at 10:00 in the morning.
Orders have been given that every defendant who is
brought to the courthouse should be brought before a judge,
but the actual figures show a failure to obtain full com-
pliance with this problem. Im March, 1974, 29% of the
prisoners delivered to court were not seen by a judge. In
June 1974 the percentage not seen by a judge had been re-
duced to 23%, and in August to 16%, according to Department
of Correction statistics, which may suffer from some in-
accuracy.
Actual court control of calendars was put into
effect in the late summer of 1974, but it is too early to
determine the extent to which this may remedy problems of
delay that arose when the calendars were prepared by the
District Attorneys.
There are judges, prosecutors and Legal Aid
attorneys who are striving valiantly to achieve prompt trials,
fair bail determinations, and all the accompaniments of due
process, but the present system creates serious obstacles.
46a
Discussion
The bail question involves different considerations
from the claim concerning coerced pleas.
Bail
Amendment VIII to the United States Constitution
quenenauee that "[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishment
inflicted."
The constitutional guarantee against excessive
bail does not mean that bail is a matter of right in all
cases. Carlson v. Landon, 342 U.S. 524, 545-46, 72 S.Ct.
525, 537 (1952) (alleged illegal alien held pending deporta-
tion). See also United States ex rel. Covington v. Coparo,
297 F.Supp. 203, 206 (S.D.N.Y. 1969, where Judge Weinfeld
Stated:
". « « a state way constitutionally provide
that bail be granted in some cases as a
matter of right and d:nied in others, pro-
vided that the power is exercised rationally,
reasonably and without discrimination. Thus,
it is left to the courts to fix the amount
of bail in all cases where it is a matter of right
and also in those instauces where the court
exercises its discretion favorably; but,
under the Eighth Amendment, where bail is
fixed in either instance, it must not be
47a
"excessive, and further, where bail is
not a matter of right, the court may
not arbitrarily or unreasonably deny
bail."
Although freedom from excessive bail is not clearly
binding on the states, Schilb v. Kuebel, 404 U.S. 357, 365,
92 S.Ct. 479, 484 (1971), the Court of Appeals in this
circuit "entertain[s] little doubt" that in an appropriate
case the Supreme Court will make the bail provisions of the
Eighth Amendment applicable to the states. United States ex
rel. Goodman v. Kohl, 456 F.2d 863, 868 (2d Cir. 1972).
The New York State Court of Appeals finds sufficient authority
in lower court federal cases to reach the same conclusion.
People ex rel. Klein v. Krueger, 25 N.¥.2d 497, 499, fn l,
307 N.Y.S.2d 207, 209 fn 1 (1969).
In any event, the proliibition against excessive
bail is enunciated in similar terms by the federal and state
constitutions. See New York State Constitution, Art. 1 § 5.
The purpose of bail, and the recognition of individual factors
in the determination of bail, are also similar. See Practice
Commentary to § 510.30 of New York Criminal Procedure Law in
McKinney's Consolidated Laws,
48a
In Stack v. Boyle, 342 U.S. 1, 4-5, 72 S.Ct. 1,
3-4 (1951), the court struck down a $50,000 bail uniformly
set for twelve conspirators charged with violation of the -
Smith Act. The bail was deemed excessive under the Eighth
Amendment because it was not set in compliance with statutory
or constitutional standards. The court said:
"This traditional right to freedom before
conviction permits the unhampered pre-
paration of a defense, and serves to
prevent the in‘iiction of punishment
prior to conviction. See Hudson v.
Parker, 1895, 156 U.S. 277, 285, 15 S.
Ct. 450, 453, 39 L.Ed. 424. Unless
this right to bail before trial is pre-
served, the presumption of innocence,
secured only after centuries of struggle,
would lose its meaning.
The right to release tefore trial is
conditioned upon the eccused's giving
adequate assuruace that he will stand
trial and submit to sentence if found
guilty. =x parte Milburn, 1835, 9 Pet.
704, 710, 9 L.Ed. 280... . Bail set
at a figure higher than an amount reason-
ably calculated to fulfill this purpose
is “excessive” under the Eighth Amendment.
See United States v. Motlow, 10 F.2d 657
(1926, ocinion by Mr. Justice Butler as
Cirevit Justice of the Seventh Circuit).
Since the function of bail is limited,
the fixing of bail for any individual
defendant must be based upon standards
relevant to the purpose of assuring
the presence of that defendant."
49a
Justice Jackson's specially concurring opinion further
stated (342 U.S. at 8, 72 S.Ct. at 5):
"Admission to bail always involves a
risk that the accused will take
flight. That is a calculated risk
which the law takes as the price of our
system of justice. ..."
In Bellamy v. Judges and Justices, 41 A.D.2d 196,
342 N.Y.S.2d 137, 139, aff'd without opinion, 32 N.Y¥.2d 886,
346 N.Y.S.2d 812 (1973), the court ruled that a class action
seeking a declaratory judgment as to the constitutionality
of the bail system was not a proper class action "because
there are individual determinations to be made in every
bail application... ". Quoting from People ex rel. Lobell
v. McDonnell, 296 N.Y. 109, 111 (1947), the court listed
individual factors a judge must consider (342 N.Y.S.2d at 139):
“The bailing court has a large discretion,
but it is a judicial, not a pure or un-
fettered discretion. The case calls for
a fact determination, not a mere fiat.
The factual matters to be taken into ac-
count include: "the nature of the offense,
the penalty which may te imposed, the
probability of the willing appearance of
the defendant or his flight to avoid punish-
ment, the pecuniary and social condition
of defendant and his general reputation and
character, and the apparent nature and
strength of the proof as bearing on the
probability of his conviction. .. ".
(citations deleted)
50a
Additionally, Article 500 of the Criminal Procedure
Luw, enacted in 1970 in an attempt "to bring clarity and
consistency to the area of ‘release on recognizance and bail'”
(See Practice Commentary, 11 A McKinney's, at p. 8), embodies,
in Section 510.30, the same limitations imposed by Stack.
Section 510.30, subd.2, C.P.L., states:
"(a) With respect to any principal, the
court must consider the kind and degree
of control or restriction that is necessary
to secure his court attendance when re-
quired, In determining that matter, the
court must, on the basis of available in-
formation, consider and take into account:
(i) the principal's character,
reputation, habits and mental condition;
(ii) his employment and financial
resources; and
(iii) his family ties and the length
of his residence if any in the
community; and
(iv) his criminal record if any; and
(v) his previous record if any in
responding to court appearances when
required or with respect to flight to
avoid criminal prosecution; and
(vi) if he is a defendant, the weight
of the evidence egainst him in the
pending criminal action and any other
factor indicating probability or im-
probability of conviction; or, in the
case of an epplication for bail or
recognizance pending appeal, the merit
or lack of merit of the appeal; and
(vii) if he is a defendant, the sentence
which may be or has been imposed upon
conviction.”
5la
These factors are substantially similar to those
which a federal court is directed to consider under the
Bail Reform Act of 1966. 18 U.S.C. § 3146(b).
The further purpose of preventive detention
(refusal of bail for fear that the accused will be a danger
to society if allowed to remain at large while awaiting trial)
had been considered by the Temporary Commission on Revision
of the Penal Law and Criminal Code and was rejected,
The forms of bail authorized by the New York
Criminal Procedure Law are limited to the following:
"§ 520.10
l. (a) Cash bail.
(b) An insurance company bail bond.
(c) A secured surety bond,
(d) A secured appearance bond.
(e) A partially secured surety bond,
(£) A partially secured appearance bond.
(g) An unsecured surety bond.
(h) An unsecured appearance bond."
The "unsecured surety bond" may be a bond executed
by @ surety other than an insurance company, and payable if
the defendant fails to appear. CPL § 500.10(19). This affords
a bail-setting judge an alternative midway between requiring
cash bail or a surety company bond and releasing the defendant
on his own recognizance. In effect, the unsecured surety
52a
bond provides the financial obligation of a third party,
which may have to be enforced in a civil action, but which
does indicate that someone else is ready to accept a sub- |
stantial risk in order to guarantee the defendant's appear-
ance,
The American Bar Association's Standards Relating
to Pretrial Release (Approved Draft 1968) specify subjects
of inquiry similar to those in the Criminal Procedure Law
and the Bail Reform Act. They emphasize especially the
presumption that a defendant is entitled to be released on
his own recognizance unless there is a finding that there
is substantial risk of non-appearance (Section 5.1), and
expressly provide that in any event (Section 5.2(a)),
" , . « the judicial officer should impose
the least onerous condition reasonably
likely to assure the defendant's appearance
in court.”
The Standards also provide for automatic re-
examination of the release decision if the defendant has
failed to secure his release within a reasonable time
(Section 5.9(a)), and for frequent reports to the court con-
cerning each defendant who has failed to secure his release, .
53a .
In the Rellamy case, the Legal Aid Society mounted
a full scale attack on the bail system. The case was brought
in the Appellate Division as an original application for
prohibition or mandamus directed to the Judges of the Criminal
Court and the Justices of the Supreme Court. Tie Appellate
Division considered the attack on the constitutionality of
the bail system to be insubstantial, on the basis of the
Schilb case, supra. It pointed out that the problem of
bail jumping, which resulted in 31,855 oench warrants being
issued by the Criminal Court in New York County alone in a
period of less than two years, showed a substantial risk of
non-appearance. 342 N.Y¥.S.2d at 143. In respect of the
showing that a man on bail was less likely to be convicted
than one in jail, the court said (342 N.Y.S.2d at 144):
"It is not because bail is required that
the defendant is later convicted. It is
because he is likely to be convicted that
bail may be required.
kkk
The factors for allowing bail, when properly
applied, generally lead to a conclusion
that those denied bail are more likely to
be convicted, and if the statistics prove
this out, as they do, it shows the system
is working rather than, as plaintiffs
contend, that it is, instead, detrimental
to a defense against an accusation."
Sua
The Bellamy case was presented to the Appellate
Division on affidavits, without live testimony, and was de-
cided without specific findings on the factual issues pre-
sented. The statistics offered by the Legal Aid Society
in the Bellamy case seem to this court to have more validity
than the Appellate Division accorded them, but they cannot
be applied in this case. For one thing, this court would ©
have to analyze not only the Single study, but the opposing
affidavits, which were not placed into evidence here and were
not the subject of argument. (The Appellate Division record
was borrowed temporarily from that Court for consideration
during the preparation of this memorandum). Even assuming
that the Bellamy statistics were accepted at face value, and
that criminal defendants in Kings County are similar to those
in New York County, there are other differences which were
not explored. The Bellamy study included only 67 Supreme Court
cases, which may not be an adequate sample. The actual
practices used in fixing bail in New York County may be
different from those prevailing in Kings County. This court
cannot take judicial notice that judges are fungible. There
were indications at the hearings in this court that trial
delays are more serious i Kings County than in New York
55a
County, but no evidence was directed to the extent of
differences or to the effect of such differences on incar-
cerated defendants.
The New York Court of Appeals agrees with the federal
rule that bail be determined with reference to the facts
in the individual case. Thus the court stated in People
ex rel. Klein v. Krueger, supra, 25 N.Y.2d at 501, 307 N.Y.S.
2d 211, that
"Even where an exercise of discretion
is operative there must, as a matter
of law, be underlying facts which
will support that exercise either in
mee bail or fixing the amount of
ail.
Bail has been found to be excessive, in violation
of the Eighth Amendment, where the amount is more than is
necessary to guarantee the presence of the accused at his
trial. Sellers v. United States, 89 S.Ct. 36, 38 (1968)
(bail pending appeal); United States ex rel. Rubinstein v.
Mulcahy, 155 F.2d 1002 (2d Cir. 1946); People ex rel. Lobell
v. McDonnell, 296 N.Y. 109 (1947).
Plaintiffs’ attack on the Kings County bail system
must be further analyzed, however, with respect to equal
protection factors and due process factors.
S6a
Equal Protection
The question of denial of equal protection to the
indigent by the requirement of bail was raised by Mr.
Justice Douglas in Bandy v. United States, 81 S.Ct. 197, 198
(1960). He said, in considering an application for re-
lease on personal recognizance:
"To continue to demand a substantial bond
which the defendant is unable to secure
raises considerable problems for the
equal administration of the law... .
It would be unconstitutional to fix ex-
cessive bail to assure that a defendant
will not gain his freedom. Stack v. Boyle,
342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3. Yet
in the case of an indigent defendant, the
fixing of bail in even a modest amount may
have the practical effect of denying his
release... ™
Chief Judge Bazelon cited the Bandy case in a
separate opinion dealing with an appeal from the denial of
a motion to reduce bail, and emphasized the court's re-
sponsibility to explore non-financial alternatives.
(Pelletier v. United States, 343 F.2d 322, 323 (D.C. Cir.
1965)), saying:
"(1]£ the court determined that high
monetary bond would adequately deter
flight, but that appellant could not
provide this bond, then the court would
be constitutionally compelled to inquire
57a
“whether other assurances of appellant's
presence would be adequate. It is an
invidious discrimination to
appellant release because of his
poverty when, for example, his ties
in the community or such devices as
release subject to the supervision of
the United States Probation office,
would adequately insure his presence.”
(Emphasis addedy.
The challenge of Bandy has not been considered by
the Supreme Court, although that Court has moved steadily
forward since Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585
(1956) in requiring that justice be applied to all persons
equally and not on the basis of ability to pay. Treating
wealth as a suspect classification, a statute which pro-
vided imprisonment only for those who could not pay their
fines was stricken down in Tate v. Short,40l U.S. 395, 399,
91 S.Ct. 668, 671 (1971). The existence of alternative
methods of protecting the state's interest was used in
Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849 (1972), as a
ground for striking down a high filing fee in connection with
Texas primary elections.
In Williams v. Illinois, 399 U.S. 235, 242, 90 S.
Ct. 2018, 2023 (1970), the court concluded that an indigent
could not be required to "work off" his fine at $5.00 a day
58a
because this would be an "invidious discrimination solely
because he is unable to pay the fine."
A district court, in United States ex rel. Shakur
v. Comnissioner of Correction, 303 F.Supp. 303, 309 (S.D.N.Y.
1969), noted that the money bail system in recent years has
come under close scrutiny and that the Federal Bail Reform
Act of 1966 "reflected an acute avareness of the problems
inherent in the system." See United States v. Leathers,
412 F.2d 169 (D.C.Cir. 1969). But the system per se was
found to be “consistent with the respective interests of the
person accused of a crime and the legitimate concerns of the
law-abiding community.” (303 F.Supp. at 309 - Palmieri, J.)
The crucial factor is that the initial determina-
cion of bail should not be an arbitrary one and that reviews
of bail should be determined on the facts pertinent to the
individual case.
With respect to the necessity for individual con-
sideration of the right to bail, a pertinent case is Ackies v.
Purdy, 322 F.Supp. 38, 42 (S.D. Fla. 1970), where a master
bond schedule sect a fixed monetary sum as bail for particular
charges. The court struck it dom as violative of both the
59a
due process and equal protection clauses of the Fourteenth
Amendment, saying
"Since the function of bail is limited to
assuring the presence of a defendant at
trial, Stack v. Boyle, supra, it is
obvious that money amounts set solely by
the charge have no relation to the
function of bail. A poor man with strong
ties in the community may be more likely
to appear than a man with some cash and
no community involvement. So, not only is
there no compelling interest in incarcer-
ating the poor man because he cannot make
the master bond bail, but the classifi-
cation fails to meet the traditional test
for equal protection:
Equal protection does not require that
all persons be dealt with identically,
but does require that a distinction
made have some relevance to the purpose
for which the classification is made. °
Baxstrom v. Herold, 383 U.S. 107, 111,
86 S.Ct. 760, 763, 15 L.Ed.2d 620 (1966)."
To decide whether a law violates the equal pro-
tection clause, Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct.
995, 999 (1972), teaches us to examine
" . . . the character of the classification
in question; the individual interests
affected by the classification; and the
governmental interests asserted in support
of the classification."
The compelling state interest test was used in the Dunn case
to deal with a durational residence requirement on the right
to vote. ’
60a
There is a compelling state interest in having
defendants available when their cases are reached for trial.
The admittedly large number of defendants who default and.
for whom bench warrants must be issued furnish proof that
some guarantee of the defendants’ return for trial is
necessary.
Fixing money bail as a guarantee for appearance at
trial is not necessarily discriminatory. The standards set
forth in the New York Criminal Procedure Law are intended to
fix a sum as bail which will assure the defendant's appear-
ance at trial. A higher sum may be required of an affluent
man than of an indigent one. Freeing all who are poor might
in fact discriminate against the well-off, for a rich man
would lose money by not appearing, while an indigent person
would lose nothing, except the risk of the same criminal
penalty for escape which applies to rich end poor alike.
Money bail is therefore not as blatantly dis-
criminatory, as Professor Foote asserts in his article in
the University of Pennsylvania Law Review. See, generally,
The Coming Constitutional Crisis in Bail, I and Il, 113 U. Pa.
L. Rev. 959, 1125 (1965).
6la
Another significant factor not emphasized by either
sesty ie that bail is often put up by relatives, friends,
or organizations, and not by the defendant in person. In
one of the earliest prison release cases, not officially re-
ported, Pythias asked the Tyrant of Syracuse for an oppor-
tunity to say farewell at home before sentence was executed
against him. He could furnish no tangible security for his
return, but he had a friend, and Damon pledged his own liberty
and his life to guarantee Pythias' return. A man camnot go to
jail today for his friend, but he can put up money.
In other words, a man who cannot make reasonable
bail is not held simply because he is poor, but because he
has not established sufficient roots in the community, or a
sufficient reputation for reliability, so that someone else
will cuarantee his return.
Plaintiffs complain that the alternatives to cash
bail or surety bond in CPL § 520.10 are not often used, Six
of the eight alternatives provided in Section 520.10 boil down
to either cash or a surety bond or security of some sort. The
last two are an unsecured surety bond and an unsecured appear-
ance bond, which is another name for release on his ow
62a
recognizance. Release on his own recognizance may be justi-
fied where the defendant has roots in the community, Or
where some form of supervision can effectively assure his
appearance. Supervised release deserves further implementa-
tion, but it is not a constitutional requirement on this
record.
Although the court concludes that monetary bail is
not in itself a violation of equal protection, the determina-
tion that bail in a particular amount is appropriate must
still meet the requirements of due process.
Due Process
Due process is a phrase of many shadings, with
different requirements for different circumstances. At its
lowest, it should require a hearing, an opportunity to present
evidence, and a statement of reasons for the decision that
is reached. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593
(1972); Goss v. Lopez, U.S. (Jan. 22, 1975).
The Morrissey case dealt with the right to hearings
in parole revocation proceedings. The Court held (408 U.S. at
480,489, 92 S.Ct. at 2600, 2604) that such proceedings did not
call for “the full panoply of rights due a defendant [in a
criminal]
F?PI—SS—3-11-72—3M—8153
63a
proceeding,” but that there should be
"(a) written notice of the claimed viola-
tions of parole; (b) disclosure to the
parolee of the evidence against him;
(c) opportunity to be heard in person
and to present witnesses and documentary
evidence; (d) the right to confront and
cross-examine adverse witnesses (unless
the hearing officer specifically finds
good cause for not allowing confrontation) ;
(e) a ‘neutral and detached’ hearing body
[whose members, however, need not be
judicial officers or lawyers]; and (f) a
written statement by the factfinders as
to the evidence relied on and reasons
for revoking parole... ™
Some measure of due process has long been con-
sidered necessary whenever a person is "condemned to suffer
gricvous loss." Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647 (1951).
The bail procedure in Bronx County was criticized
by a state court judge as abrogating "a basic liberty,”
because it did not provide for adequate information to de-
termine the apparent strength of the prosecution's case.
People v. Vasquez, 348 N.Y.S.2d 1007 (Crim. Ct., Bronx Co.
1973).
64a
if convicted, than the man who is on the street. This result
is inevitable, for a man at large has had an opportunity to
build an employment record and show his conformity with the
law during the one to three years which will have preceded
his trial. ———e
All generalizations are subject to exceptions. -
Plaintiff Michael McLaughlin is an illustration of the possi-
bility of rehabilitation even during pre-trial detention.
Although the District Attorney described him to the court
as a dangerous man, he was released on a plea with a sentence
to time served, after this court directed that his indictment
be brought to trial, and he has worked successfully for more
than a year as a paraprofessional with the Center for Consti-
tutional Rights.
If a prison sentence is imposed, the evidence in
this case indicates that it is generally shorter for a man
at large than for one who is already in jail, although the
extent of variation cannot be determined, as the plaintiffs
in the Bellamy case sought to do.
65a
In connection with the denial of parole, which
proceeded for years with only nominal hearings, it has re-
cently been held that findings of fact are necessary.
United States ex rel. Johnson v. Chairman, New York State
Pin Sahni Nant wt es
Board of Parole, 500 F.2d 925, 934 (2d Cir. 1974). The
Court there said:
"[D]etailed findings of fact are not re-
quired, provided the Board's decision is
based upon consideration of all relevant
factors and it furnishes to the inmate
both the grounds for the decision (e.g.,
that in its view the prisoner would, if
released, probably engage in criminal
activity) and the essential facts upon
which the Board's inferences are based
(e.g., the prisoner's long record, prior
experience on parole, lack of a parole
plan, lack of employment skills or of
prospective employment and housing and
his drug addiction).
kk *
A reasons requirement ‘promotes thought
by the decider,’ and compels him ‘to
cover the relevant points’ and ‘eschew
irrelevancies.' See Frankel, Criminal
Sentences 40-41 (1973)."
Id. at 931.
The same rule has recently been announced for
state parole release hearings, Solari v. Vincent, N.Y.L.J.
February 3, 1975, p. 1 (App.Div. 2d Dept. Jan. 20, 1975),
where Mr. Justice Martuscello stated:
67a
66a
to decisions depriving an inmate of good time credit.
Mle require merely that the board state,
however briefly, the ultimate grounds
relied on with sufficient particularity The constitutional right to review a state: bail
to cule o aviewt Lee determination by federal habeas corpus further emphasizes
ees ee ee ae the need for a statement of reasons; otherwise it is difficult
The reasons for denying parole are different from for the habeas court to determine whether the amount of bail
those at issue in a bail determination, but the necessity for is arbitrary or discriminatory and whether the defendant has
findings is the same been denied a fair trial or the right to counsel. Bobick v.
Schaeffer, 366 F.Supp. 503 (S.D. N.Y. 1973).
As the court pointed out in a bail case, United =’ PP ( )
States ex rel. Keating v. Bensinger, 322 F.Supp. 784, 787 In the federal system, there is provision by
(N.D. 111. 1971), if no reasons are given for denial of bail, statute and rule for written reasons for imposing bail that
"| dt is impossible to ascertain
whether or not such denial was arbitrary
or discriminatory. pretrial detention, 18 U.S.C. § 3146(d), states:
k**
camnot be met, if a request is made. In connection with
"A person for whom conditions of release
are imposed and who after twenty-four
hours from the time of the release hearing
continues to be detained as a result of
his inability to meet the conditions of
release, shall, upon application, be en-
titled to have the conditions reviewed
by the judicial officer who imposed them,
Unless the conditions of release are amended
and the person is thereupon released, the
judicial officer shall set forth in writing
its action. the reasons for requiring the conditions
imposed."
(vJhe failure to indicate the motivating
reasons for the denial of bail is in and
ot itself an arbitrary action that vio- .
lates the Fighth and Fourteenth Amendments.
There the court said it would direct release on habeas corpus
unless the state court promptly elucidated the reasons for
The requirement for a written statement was also
applied by the Supreme Court in Volff v. McDonnell,
U.S. __, 94 S.Ct. 2963, 2978-79 (1974), with reference
68a
69a
In practice few defendants ask to have reasons i atin ith eeaaies
the court shall state in writing the
reasons for the action taken. There-
after, if an appeal is pending,a
motion for release, or for modification
of the conditions of release, pending
review may be made to the court of
appeals or to a judge thereof,"
set forth in writing, probably because the Individual
Assignmenc System minimizes the necessity for making the
reasons available to another judge and because pretrial de-
tention is relatively short.
Standards for the statement of reasons have been
Where a defendant requests reasons for refusal to
United States v. Manarite, 430 F.2d 656, 657 (2d Cir. 1970),
In United States v. Briggs, 476 F.2d 947 (5th Cir. 1973),
: he court's denial of bail after a conviction for extortion,
justified a fixed bond for each of eight defendants, the
but stated:
ith the statement that (p. 949):
case wes renended wit "The district judge should state clearly
and categorically his reasons for deny-
ing bail so that in reviewing his de-
cision this court, and the Circuit
Justice, may be fully advised regarding
the basis for his action.
"Jithout expressing any view as to the
merits of the defendants’ claims, we
think at a minimum each defendant is
entitled to know the reasons why the
particular conditions of release were
imposed in his case. (iaphasis from
the ovinion). - «+ + Of course an opinion stated on the
record of the bail hearing is sufficient
compliance with the requirement of a
written opinion, but we do not consider
extensive colloquy without any definite
statement in conclusion to be in accor-
dance with the Rule."
There is a separate provision relating to deter-
mination of bail pending appeal in the event of conviction.
Rule 9(b) of the Federal Rules of Appellate Procedure states,
u
"(b) Release pending appeal from a
judgment of conviction. The importance of a written statement of reasons
cation for release after a
ps we of conviction shall be
made in the first instance in the
district court. If the district
court refuses release pencing appeal,
under F.R.A.P. 9(b) was discussed by the District of Columbia
Court of Appeals in United States v. Stanley, 469 F.2d 576,
70a
585-08 (D.C. Cir. 1972), which concluded with the words,
‘le admonish counsel and trial judges
oF tntarustben pessantally uelgasl 00
a solid decision on releasibility."
The importance of evidence and findings appears
also from the New York Court of Appeals decision on a
pre-Bellamy attack on the bail system. The Court of Appeals
there pointed out that the amount of bail may not be fixed
solely by the nature of the offense, but it held that the
* !
court had discretion to determine whether a defendant's roots
in the community were strong enough to assure his appearance
for trial if released on his own recognizance. People ex rel.
Gonzalez v. Warden, 21 N.Y.2d 18, 286 N.Y.S.2d 240 (1967),
cert. denied, 390 U.S. 973, 88 S.Ct. 1093 (1968).
A few more comments about plaintiffs’ specific
prayers for relief are in order.
l. Fvidentiary Bail Hearings
The nature of the hearing at a bail application may
vary with circumstances. What has been said above does not
answer all the questions.
Tla
The defendant is generally provided with the com-
plaint or indictment and the NYSIIS report, which may show
factors adverse to release, and he has the ROR form available
to show favorable factors. Evidence concerning the strength
of the case, another significant factor on the incentive not
to return, usually depends on a statement by the Assistant |
District Attorney, For bail purposes, it would be difficult
to require that the strength of the case be established by
testimony of a knowledgeable person subject to cross-examina-
tion, although this is required at a preliminary hearing on
a felony complaint. CPL § 180.60(8).
The principal points to be considered at an evi-
dentiary hearing would be che facts concerning plaintiff's
criminal record, his employment, his family ties, and his
character and reputation, thus overcoming the negative ef-
fects of an incomplete NYSIIS report and an unverified ROR
form, The extent to which other bail factors might require
an evidentiary hearing should be determined in individual
cases and not under general rules promulgated in advance by
a federal court. Wallace v. Kern, supra, 499 F.2d at 1435.
72a
After indictment, the court may consider grand
jury minutes with respect to the strength or weakness of
the case against the defendant. People ex rel. Machuca v.
Glick, 38 A.D. 2d 916, 329 N.Y¥.S.2d 834 (lst Dept. 1972);
People v. Terrell, infra, 309 N.Y.S.2d at 784-85.
It is interesting to note that bail reductions were
granted in a majority of cases in Part 10, notwithstanding
repeated testimony that family relationships and roots in
the community deteriorate after periods c? incarceration.
In fact, Justice Barshay testified that he allowed people
familiar with a defendant's background to speak up for him,
but that it was "not very often" that anyone did. These
facts strongly suggest that the initial bail determinations
might heve been different if evidentiary hearings had been
held early in the bail setting process.
Relief in the form of conditions to be met by a
state court in bail hearings was granted in Ackies v. Purdy,
supra, 322 F.Supp. at 43-43, where the court specified the
considerations to be used in fixing conditions of release.
73a
In Monroe County, an evidentiary bail hearing was
granted in a murder case, and resulted in release on $10,000
bail, secured by a neighbor's property. People v. Terrell,
309 N.Y.S.2d 776 (Monroe Co. Ct. 1970).
Evidentiary hearings may also promote more frequent
use of alternatives to cash bail or surety bonds. In one
case, a bail determination was remanded to consider "those
minimal nonfinancial conditions of release which will
"essure the appearance of the person as required.'" instead
of “unreachable money bonds." United States v. Leathers,
supra, 412 F.2d at 173,
Plaintiffs' proposal for an evidentiary hearing
within 72 hours after arrest is based on analogy from
CPA § 180.80, which directs release of a felony defendant on
his own recognizance after 72 hours in custody without a
preliminary hearing, unless he has consented to the delay,
or unless good cause is shown why release should not be
granted. The 72-hour period does not thereby become a
measure of constitutional right. A workable rule is set
forth in the Conclusion of this Memorandum.
74a
The fact that few defendants have specifically
requested evidentiary hearings in the past does not obviate
the need for relief in this respect. Rather, it reflects
the speed with which bail determinations have been made and
the inadequacies of the "system," On the other hand, auto-
matic evidentiary hearings would impose burdens on the
courts in many cases where such a hearing would not be
fruitful.
The Supreme Court has held that there must be a
jury trial on any offense which involves the possibility of
a
imprisonment for more than six months. Duncan v. Louisiana,
391 U.S. 145, 159, 88 S.Ct. 1444, 1453 (1968), as inter-
preted in Argersinger v. Hamlin, 407 U.S. 25, 29, 92 S.Ct.
2006, 2008 (1972). It would be anomalous to permit a de-
fendant to be held in jail for more than a year, without a4
trial, without any evidentiary hearing, and without a
statement of te reasons why his bail is fixed at a figure
that he cannot meet.
The court has consid-:red the recommendations of
e
the Temporary (Doainick) Commission on the New York Stat
r All"
Court System in its report, ". . . And Justice fo
75a
(Jan. 1973), Pert II, pp. 65-69, that cash bail should be
abolished in favor of a System of absolute release, con-
ditional supervised release, or absolute detention. The
report made recommendations which may have merit as a basis
for legislation, but this court does not regard these re-
conmendstions as establishing a constitutional standard,
2. Statement of Reasons for Pail Determination
Giver. the different stages at which bail is con-
sidered by a series of judges, it is important that there be
& statement of reasons available to the d2fendant and his
attorney. The nature of such statement should be worked out
in individual cases, but the considerations affecting bail
are specifically listed in CPL § 510.30 and could form the
basis for an informative written statement, without undue
burden on the court.
If written reasons are required, the courts may
give more substance to the expectation set forth by the
Bellamy court (342 N.Y.S.2d at 143) thet after the 1972
amenciwent of the Criminal Procedure Law § 520.10:
76a
"[T]wo types of bail became the more
usual form '(g) an unsecured surety
bond and (h) an unsecured appearance
bond', meaning that an accused would
not have to deposit any money and
merely incurs a legal obligation.”
Since state appellate review of bail determina-
tions is available only in habeas corpus proceedings, and
review in such a proceeding is limited to the question whether
constitutional or statutory standards have been violated,
People ex rel. Klein v. Krueger, supra, 25 N.¥.2d at 499,
307 N.Y.S.2d at 209-10, it is important not to conclude this
case without setting forth the federal constitutional
standards that must be met.
3. Facilities for Consultstion with Counsel
The undesirability of prolonged detention is aggra-
vated by the lack of proper facilities for consultation
between a defendant and his attorney. Some efforts are being
made in Kings County Supreme Court to improve the facilities
for consultation with counsel, but they are not enough.
Federal court supervision of this subject is not
barred by O'Shea v. Littleton, 414 U.S. 388, 94 S.Ct. 669
(1974).
77a
Plaintiffs and their class in this case are all
detained for want of bail, and thevefeve have the personal
stake which was found lacking in O'Shea (94 S.Ct. at 675).
The relief contemplated herein concerning the standards for
bail hearings will not require the monitoring of state court
proceecings which was feared in O'Shea (94 S.Ct. at 679).
It will set standards which may be applied in individual
bail review proceedings. ;
The relief contemplated herein with respect to
access to counsel while in the courthouse detention facili-
ties is sanctioned by the Supreme Court's statement in
Procunier v. Martinez, _—=s_—SsUWS. s,s -«94 S.Ct. 1800, 1807
(1974) that:
"{A] policy of judicial restraint cannot
encompass any failure to take cognizance
of valid constitutional claims whether
rising in a federal or state institution."
The right to confidential interviews with counsel
was discussed in Rhem v. McGrath, 326 F.Supp. 681, 691
(S.D.N.Y. 1971), where Judge Mansfield said concerning the
Tombs:
78a
Ne think it only fair... that the
poi be otteuted a full opportunity
to confer or correspond with his
attorney in privacy, and without ob- ,
servation, interference, or listening in.
Tne correction authorities were directed to submit
a plan for modificat‘on of detention facilities to permit
confidential attorney-client interviews in Souza v. Traviseno,
368 F.Supp. 959, 971-72 (D.R.1I. 1973 - Pettine, Ch. J.),
aff'd in part, 498 F.2d 1120 (1st Cir. 1974), The right to
privacy in comunication with counsel was there described as
"vital to due process to guarantee the effective assistance
of counsel."
Protection of the Sixth Amendment right to counsel
is particularly important where defendant is frequently not
broucht into the courtroom in the conference part, when bail
Oo
and plea-bargaining are discussed.
4. Coerced Pleas
The principles affecting plaintiffs’ attack on
guilty pleas are similar to those discussed in relation to
bail. The matter is not capable of a general rule.
79a
A federal court should not cast doubt on thousands
of state court guilty pleas by a broad new definition of
coercion,
The general rule is that a guilty plea waives ob-
jections to the prior proceedings, and cannot be set aside
if the defendant had adequate legal advice, unless some
legal safeguard has been omitted. McMann v. Richardson,
397 U.S. 759, 90 S.Ct. 1441 (1970); Brady v. United States,
397 U.S. 742, 90 S.Ct. 1463 (1970); Parker v. North Carolina,
397 U.S. 790, 90 S.Ct. 1474 (1970). Adequate consultation
with counsel is a necessary condition for a valid guilty plea.
Windom v. Cook, 423 F.2d 721 (Sth Cir. 1970); Braxton v.
Peyton, 365 F.2d 563, 564 (4th Cir.), cert. denied, 385 U.S.
939, 87 S.Ct. 306 (1966). Risks of coercion may be minimized
by better facilities for consultation with attorneys. But
the effect of inadequacies in consultation facilities should
be determined on a case-by-case basis.
A plea of guilty results from a complex of factors.
Among these are defendant's present knowledge of his guilt
or innocence, and the knowledge of what evidence against him
may be expected in court. In cases where there is sentence
80a
bargaining in addition to plea bargaining, as in the state
courts, the relation between the proposed sentence and the
risk at trial is important.
Prolonged confinement in unsatisfactory detention
facilities certainly creates a pressure to plead guilty, if
only to start a definite term in Letter quarters. This does
not make it appropriate, however, to assert by declaratory -
judgment that a particular period of detention per se makes
a guilty plea invalid.
A great majority of state court oonvictions ere based
on guilty pleas, and no evidence hes been offered to show
that any substantial number of those who pleaded guilty were
in fact innocent. Primarily, the yuestion of coerced guilty
pleas involves: an area for determination by individual cases
and not by class action.
5. Prompt Trials
Prompt trials would alleviate many of the objections
to the bail system. Plaintiffs' request for relief on that
score was denied on the second appeal in this case (supra,
p.5), but it is clear that the prejudice resulting from any
—__eo.-
8la
pretrial confinement is aggravated when that confinement
is prolonged.
Even though a federal court cannot fix a uniform
time limit for state court trials, a state court should con-
sider the length of time a defendant has been in custody
in determining the reasonableness of bail at each stage of
his case.
As Judge Weinfeld stated in United States ex rel.
Covington v. Coparo, supra, 297 F.Supp. at 207:
"In those instances where the court, in
the exercise of discretion denies bail,
the defendant's right to a speedy trial,
a guarantee that prevents ‘undue and
oppressive incarceration prior to trial, 212
assumes greater significance,
/17 United States v. Ewell, 383 U.S. 116,
120, 86 S.Ct. 773, 776, 15 L.Ed.2d
627 (1966)."
The same principle applies where bail is fixed at
an unreachable figure, that the length of pre-trial de-
tention increases the importance of due process protections
in fixing bail.
Le ©)
Mm
fo
The Asserted Violations of Comity
Finally, the court should mention defendants’
assertion that federal jurisdiction is forbidden by the
principles of comity expressed in Younger v. Harris, 401 U.S.
37, 91 S.Ct.746 (1971), and Samuels v. Mackell, 401 U.S. 66,
91 S.Ct. 764 (1971). Those cases are quite different from
the present one, since the plaintiffs there sought to pre-
vent state court prosecutions, All that is brought in
question in this suit is the necessity of pre-trial confine-
ment, and the due process requirements before the state can
take avay the liberty of a man whose guilt has not yet been
established. Improper pre-trial confinement would not be
on issue on a defendant's trial on the criminal charge.
The conditions of pre-triel confinement are a
proper subject of federal concern. ‘hem v. ialcolm,
¥.2d (2d Cir. Nov. 8, 1974). In Younger, in contrast,
plaintiffs sought an injunction against state prosecution,
eid in Simuels a declaratory judgment to invalidate a pending
indictineat. Although Samuels found that a declaratory
judgment is no more permissible under those circumstances
than an injunction, the Supreme Court has more recently
83a
pointed out thet different considerations apply to de-
claratory judgments than to injunctive relief. Steffel v.
Thompson, U.S. » 94 S.Ct. 1209, 1219-22 (1974).
This case is more like Conover v. Montemvro, 477F.2d 1073
(3d Cir. 1973), where the court distinguished the Younger
and Samuels cases, in dealing with the intake procedures in
the Philadelphia Family Court. See also this court's
earlier discussion of the question in Wallace v. McDonald,
369 F.Supp. 180, 185-88 (1973).
Plaintiffs here are not seeking even interference
with any pending bail application, but an announcement of
the constitutional rights to which they and other members of
their class are entitled.
The decision on the first appeal in this case,
concerning the treatment of pro se motions, 481 F.2d at 622,
is not controlling here. This court's proposed requirements
of evidentiary hearings and written statements of reasons
are necessary to enforce constitutional rights announced
by the Supreme Court and the Court of Appeals (supra, pp. 44,
45). The question whether a pro se motion should be con-
sidered was less important, since almost every detainee has
34a
a lawyer, who could presumably present the same motion.
Summary of Legal Conclusions
Although pre-trial confinement under the conditions
existing in the Kings County Supreme Court creates substantial
prejudice both to the effective defense of the detainee and
to his ultimate fate if convicted, the requirement of monetary
bail as a condition of release does not per se violate the
equal protection clause of the Fourteenth Amendment, Provided
the court has considered the individual factors concerning
the risk of a defendant's failure to appear for trial and
the inadequacy of other alternatives, the state's compelling
interest in having the defendant present for trial justifies
the use of monetary bail in a proper case. A defendant's
inability to post the required bail may reflect not simply
poverty, but lack of sufficient roots in the community to
induce someone else to guarantee his presence. The due
process clause, however, requires that a decision which may
result in prolonged confinement shall be based on full
evaluation of the facts, with an opportunity to present or
controvert any pertinent evidence, and with a written state-
ment of the reasons why a particular bail determination is
reached.
85a
Preparation for a bail hearing, for plea bargain-
ing, and for trial require adequate opportunity for con-
sultation between the defendant and his attorney, which
should be in conditions of privacy.
The necessity of improvements in the bail system
is enhanced by the considerable length of time which frequent-
ly elapses in pre-trial confinement in Kings County.
The factors which lead a person to plead guilty are
too diverse to justify any general determination as to what
circumstances result in a coerced plea,
Conclusion
Judgment should be entered:
1. Denying plaintiff's prayer for an injunction
against the use of money bail as a condition for release from
custody.
2. Declaring that a criminal defendant charged
with a felony and confined in the Brooklyn House of Detention
is entitled:
(a) to a hearing at which the People shall
present evidence of the need for monetary bail and the
reasons why alternative conditions of release will not assure
86a
his return for trial and at which he may present evidence on
factors negating the need for monetary bail, such evidentiary
hearing to be had on demand at any time after 72 hours from
the original arraignment, and at such other times as new
evidence or changes in facts may justify;
(b) to receive a written statement of the
reasons for denying or fixing bail, and to have a de novo
bail hearing on request if he is held in custody without a
written statement of reasons for the bail determination;
3. Directing the defendants, Administrative Judge,
Commissioner of Correction, Chief Clerk of the Supreme Court,
and Clerk of the Criminal Term of the Supreme Court, within
forty-five days after the filing of such judgment, to submit
to plaintiffs' counsel and file with the court a plan for
assuring privacy for conferences between an incarcerated de-
fendant and his attorney at the time of his arraignment on
any complaint or indictment, and at any appearance in the
conference part of the Supreme Court, and at bail review
proceedings, and a timetable for implementing the plan; and
that the court retains jurisdiction to review the plan and
its implementation; and
87a
4, Determining that the question whether guilty
pleas are coerced by reason of a defendant's long pre-trial
confinement should be considered on a case by case basis, ©
and not in a class action; and
5. Dismissing the complaint, without costs, ex-
cept as outlined above.
Settle judgment on notice of three working days.
88a
UNITED STATES DLSTRICT COURT
EASTERN DISTRICT OF NEW YORK
DONALD WALLACE, et al.,
Plaintiffs,
-against- 72 c 898
MICHAEL KERN, et al.,
Defendants.
FINAL JUDGMENT ORDER
AND DECREE
The acticn having come on for trial before the Court,
the Honorable Orrin G. Judd presiding, on Plaintiffs' motion
for permanent declaratory and injunctive relief, and the
court having rendered its memorandum and decision on Febru-
ary 14, 1975,
(1) 17 IS HEREBY ORDERED AND ADJUDGED that plaintiffs’
motion for an injunction enjoining the use of monetary bail
as a condition of release from pretrial incarceration, be
and hereby is denied; and it is further
(2) It is DECLARED pursuant to 28 U.S.C. 220], thit the
Eichth and Fourteenth Amendment rirhts of ertminal defendants
charged with felonies In Kins County not to have excessive
bail imposed, and to due process of law are violated in
89a
that the bail determining practices of the Kins County
Criminal and Supreme Court deprive them of liberty without
due process of law; and it is further,
(3) ORDERED, ADJUDGED AND DECLARED, pursuant to 28
U.S.C. § 2201, that a criminal defendant, charred with a
felony in Kings County and confined at any institution under
the care, custody and control of the defendant Department
of Correction be entitled
(a) to a hearing at which the People shall recommend
what form of security if any, would secure the
defendants’ appearance in Court and, only if
monetary bail is recommended, the People shall
present evidence of the need therefor, and the
reasons why alternative conditions of security
should not be available; an? ct which the defen-
dant shall be present and may vresent evidence
cognizable by the ccurt on the factors neraiting
the need for money bail, which hearing shall be
had, on written or oral demand, and on five days
notice to the People, at any time after 72 hours
after arraignment or as new evidence or chanres
in facts may Justify thereafter;
(b) the prosecution shall] have the burden of provine
the need for monetary ball and shal) state the
reasons why non-financial conditions of release,
90a
as well as other financial alternatives prescribed
by state statute (CPL Sec. 520.10) will not assure
the accused's reappearance at trial.
(ec) this evidentiary hearing must be riven within five
(5) days after a demand is made or at the next
scheduled court appearance of the defendant which-
ever is sooner.
(d) the demand may be made orally in open court oz in
writing, pro se or by counsel.
(e) if the demand is made in writing it shall specify
information sufficient to identify the defendant
and shall also set forth the current conditions
under which the defendant may be released and in
the case of alleged new evidence or chanres in
circumstances, the new circumstances or evidence;
(f) pretrial incarceration of sixty days shall be
a change in facts sufficient to justify a de nove
bail hearing; and it is further
(4) ORDERED, ADJUDGED AND DECLARED that a eriminal
defendant is entitled to receive a written statenent of the
reasons for denyins or fixing bail including the facts relied
on and to have a de novo bail hearins upon five (5) days
notice to the People, if he/she is held tn custody w!thout
Awritten statement of reasons for the tnstant ball deter-
9la
mination; and it is further
(5) ORDERED, ADJUDGED AWD DECREED that defendants,
Administrative Judge, Commissioner of Corrections, Chief
Clerk of the Supreme Court and Clerk of the Criminal Term
of the Supreme Court within 45 days after filing of this
judgment, submit to plaintiffs" counsel and file with the
court, a plan including a timetable for implementation
thereof, for assuring privacy for conferences between an
incarcerated defendant in a criminal proceeding and his/her
attorney at (a) the time of his/her arraignment on any com-
plaint or indictment brought in the name of the People of
the State of New York; (b) at any appearance at the confer-
ence part of the Supreme Court; and (c) at bail review
proceedings, and at every appearance of the defendant in
the Kings County Criminal or Supreme Courts; and it is
further
(6) ORDERED, ADJUDGED AND DECREED that the Court shall
retain jurisdiction to review the plan referred to in
paragraph (/\), hereof and its implementation and to make
such further order or reason as necessary; and it is further
(7) ORDERED that counsel for the Plaintiffs are
required to notify members of their class who are housed
at all institutions under the care, custody and control
of the Department of Correction and who have been accused
of the commisston of felonies in Kins County. Plaintiffs'
92a
counsel shall deliver to the defendant Department of Correc-
tion an adequate number of notices describing this judgment
and the Court's memorandum of decision, dated February 14,
1975; and it is further
(8) ORDERED that Defendant Department of Correction
shall place and affix in conspicuous places in the day
rooms of each floor of those institutions at least two
copies of this attached notice to Plaintiffs’ class; and
it is further
(9) ORDERED that counsel for the Plaintiffs shall
be able to inspect housing floors one time in the Brooklyn
House of Detention and other institutions to assure that
the -1ucs has been given adequate notice of this judrment
by giving reasonable notice to the Warden and arranring
a time convenient to the parties; and it is further
(10) ORDERED that the issue of whether sullty pleas
are coerced by reason of a defendant's prolonred pretrial
incarceration should be determined on a case by case basis;
and it is further
(11) ORDERED, ADJUDGED AND DECREED, that except as
hereinbefore provided, the second amended complaint herein
be and hereby is dismissed, without costs.
ENTER
Dated: Brooklyn, New York /s/ Orrin G. Judd
Mareh 5, 1975 a ee
93a
Gnited States Court of Appeals
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals, in and for the Second Circuit,
held at the United States Court House, in the City of New York, on the ninth
day of September » me thousand nine hundred and seventy-five.
Present :
HON. WILLIAM HUGHES MULLIGAN,
HON. MURRAY I. GURFEIN,
Circuit Judges,
HON. MILTON POLLACK,
District Jucce.
DONALD WALLACE, et al.,
Plaintiffs-Appellees,
Vv.
MICHAEL KERN, et al.,
Defendants-Appvellants.
UNITED STATES ex rel. MICHAEL A. McLAUGHL
Plaintiff-Appellee,
v.
THE PEOPLE OF THE STATE OF N.Y., et al.,
Defendants-Appellants.
_-*--
Docket No. 75-2069
IN,
MICHAEL A. McLAUGHLIN, et al.,
4
Ve i
THE PEOPLE OF THE STATE OF N.Y., et al.,
Defendants-Appellants.
A petition for a rehearing having been filed herein
by counsel for the plaintiffs-appellees,
Upon consideration thereof, it
is
Ordered that said petition be and hereby is denied.
fae RGus?
A. DANIEL FUSARO
Clerk
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