Amicus Curiae Brief — Goosby v. Osser

INDEX

pment of Interest of the Amici Curiae ....................

“Issue Presented BR eae eases aah sc wacstaass

Arco {ENT

-* A Substantial Constitutional Question, Sufficient

4 To Warrant the Convening of a Three-Judge Dis-

trict Court, Is Presented by a Complaint Alleging

the Denial by Pennsylvania of the Fundamental

Right of Unconvicted Prisoners To Vote, Which

Denial Has Not Been Shown, by the State, To Be

Reasonably or Necessarily Related To Its Only

Legitimate Interest of Guaranteeing the Presence

eg ce iy «| | nO

NN cnet lara tte eee ees

TABLE OF AUTHORITIES

wases:

inderson v. Nosser, 456 F.2d 835 (5th Cir. 1972) (en

NN iced hcte ace te ct

Brenneman v. Madigan, —— F. Supp. ——, 11 Cr. L.

® Rptr. 2248 (N.D. Cal. May 12, 1972) ..............0..........

Bundy v. Cannon, 328 F. Supp. 165 (D. Md. 1971) ........

Butler v. Crumlish, 229 F. Supp. 565 (E.D. Pa. 1964)...

hicago Connections v. Bensinger, No. 7102382 (N.D.

:T. Mar. 30, 1972) . oe &

Vlutchette v. Procunier, 328 F. Supp. 767 (ND. Cal.

p 1971)

Carothers v. Follette, 314 F. Supp. 1014 (S.D.N.Y.

1970)

Collins v. Schoonfield, —— F. Supp. ——, Civil No.

71-500-K (D. Md. May 15, 1972)

Conklin v. Hancock, 334 F. Supp. 1119 (D. N.H. 1971)

Cruz v. Beto, 405 U.S. 319 (1972) :

Davis v. Lindsay, 321 F. Supp. 1134 (S.D.N.Y. 1970)...

Fortune Society v. McGinnis, 319 F. Supp. 901 (S.D.

N.Y. 1970) .

Goodwin v. Oswald, —— F.2d ——, 11 Cr. L. Rptr.

2360 (2d Cir. June 19, 1972)

Gray v. Creamer, —— F.2d ——, No. 71-1714 (3rd Cir.

Aug. 14, 1972)

Haines v. Kerner, 404 U.S. 519 (1972)

Hamilton v. Love, 328 F. Supp. 1182 (E.D. Ark. 1971)

Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971) ..................

Inmates of Attica Correctional Facility v. Rockefeller,

453 F.2d 12 (2d Cir. 1971)

Inmates of Boys Training School v. Affleck, —— F.

Supp. ——,, No. 4529 (D. R.I. July 28, 1972) -..........

Inmates of Cook County Jail v. Tierney, No. 68C504

(N.D. Ill. Aug. 22, 1968)

Inmates of Milwaukee Jail v. Petersen, 51 F.B.D. 540

E.D. Wis. 1971)

In Re Cisson (N.J. Super. Ct., Som. Cty., Mar. 24, 1972)

In Re Winship, 397 U.S. 358 (1970)

Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968) ..........

Jackson v. Hendrick, No. 71-2437 (C.P. Phil. Apr. 7,

1972)

PAGE

Jones v. Rouse, 457 F.2d 1318 (5th Cir. 1972) 000...

Jones v. Wittenberg, 323 F. Supp. 93, 330 F. Supp. 707

(N.D. Ohio 1971), aff'd sub nom. Jones v. Metzger,

456 F.2d 854 (6th Cir, 1972) cece cceeeeeeeceeee

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)...

Little v. Cherry, No. LR-71-C-89 (E.D. Ark. Dec. 30,

|i 7 8 5 eee nN ee ee a ae

McDonald v. Board of Election Commissioners, 394

U.S. 802 (1969) 7 :

Mead v. Parker, —— F.2d ——, No. 71-2462 (9th Cir.

July 20, 1972) nnn eee ceeecececececececeseseseecececereeseseseeseseeseee

Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972) ............

Morris v. Travisono, 310 F. Supp. 857 (D. R.I. 1970)...

National Prisoners Reform Association v. Sharkey,

F. Supp. , No. 4884 (D. R.I. May 9, 1972)...

Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971)........

Novak v. Beto, 453 F.2d 661, reh. en banc denied, 456

F.2d 1303 (5th Cir. 1972), pet. cert. filed sub nom.

Sellars v. Beto, No. 71-6789 O.T. 1971 _..000...

Palmigiano v. Travisono, 317 F. Supp. 776 (D. B.I.

1970) ..........

Payne v. Whitmore, 325 F. Supp. 1191 (N.D. Cal. 1971)

Rodriquez v. McGinnis, 456 F.2d 79 (2d Cir. 1972) (en

banc), cert. granted, —— U.S. —— (June 19, 1972)

Schilb v. Kuebel, 404 U.S. 357 (1971) .......

Seale v. Manson, 326 F. Supp. 1375 (D. Conn. 1971)...

Smith v. Robbins, 454 F.2d 696 (1st Cir. 1972)..............

Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)

PAGE

Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (en

banc)

Sostre v. Otis, 330 F. Supp. 941 (S.D.N.Y. 1971)

Stack v. Boyle, 342 U.S. 1 (1951)

Taylor v. Sterrett, —— F. Supp. ——, Civ. Action No.

3-5220-B (N.D. Tex. June 5, 1972)

Tyler v. Ciccone, 299 F. Supp. 685 (W.D. Mo. 1969)...

United States ex rel. Jones v. Rundle, 453 F.2d 147

(8rd Cir. 1971)

United States ex rel. Kendzierski v. Brantley, 447 F.2d

806 (7th Cir. 1971)

Wayne County Jail Inmates v. Wayne County Bd.

Comm'rs, No. 173217 (Cir. Ct. Wayne Cty., Mich.

May 18, 1971)

Wilkinson v. Skinner, —— F.2d ——, 11 Cr. L. Rptr.

2417 (2d Cir. June 28, 1972)

Williams v. Illinois, 399 U.S. 235 (1970)

Wright v. McMann, 460 F.2d 126 (2d Cir. 1972)

Younger v. Gilmore, 404 U.S. 15 (1971)

Text:

Blackstone, Commentaries (1765)

Foote, The Coming Constitutional Crisis In Bail: II,

113 U. Pa. L. Rev. 1125 (1965)

Mattick & Aikman, The Cloacal Region of American

Corrections, 381 Annals of the American Academy

of Political and Social Sciences 109 (1969)

McGee, The Administration of Justice: The Correc-

tional Process, 5 N.P.P.A.J. 225 (1959)

PAGE

Note, Constitutional Limitations on the Conditions of

Pretrial Detention, 79 Yale L.J. 941 (1970) ................ 3

Note, Incacerating The Innocent: Pre-trial Detention

In Our Nation’s Jails, 21 Buf. L. Rev. 891 (Spring

1972) 3

Rankin, The Effect of Pretrial Detention, 39 N.Y.U.L.

Rev. 641 (1964) 3

1970 National Jail Census (Sup. Doc., U.S. Gov’t

Printing Off., Wash., D.C.) ................ 3

Black Hole of Manhattan, Time Magazine, Aug. 24,

Er BR Ie secbieseicisttaiasincnscboestlogetibiedcagsadedann, 6

Revolt of the Powerless, 5 Newsletter of the Correc-

tional Association of N.Y. (No. 3, June 1971) ............ 6

In THE

Supreme Court of the United States

Ocroser Term, 1971

No. 71-6316

Anprew C. Goossy, et al.,

Petitioners,

vs.

Maurice Osser, et al.,

Respondents.

a)

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC., AND NATIONAL

OFFICE FOR THE RIGHTS OF THE INDIGENT

AS AMICI CURIAE

Statement of Interest of the Amici Curiae

The NAACP Legal Defense and Educational Fund, Inc.

is a non-profit corporation formed under the laws of the

State of New York in 1939. The Fund was incorporated

to assist black people to secure their constitutional rights

by the prosecution of lawsuits. Under its chartér, one of

its purposes is to provide free legal assistance to Negroes

who suffer injustice because of race and who are unable,

on account of poverty, to employ legal counsel."

A central purpose of the Fund is the legal eradiction

of practices in our society that bear with discriminatory

harshness upon black people and upon the poor, deprived

and friendless, who too often are black. To further this

purpose, the Fund in 1967 established a separate corpora-

tion, the National Office for the Rights of the Indigent

(N.O.B.I.), having among its objectives the provision of

legal representation to the poor in individual cases and

the advocacy before appellate courts of changes in legal

doctrine which unjustly affect the poor. E.g., Williams v.

Iinois, 399 U.S. 235 (1970); Sntadach v. Family Finance

Corp., 395 U.S. 337 (1969).

In 1970, the Fund commenced a national program for

the purpose of promoting efforts toward prison reform.

Its objectives include research to identify the most serious

and fundamental problems in corrections, and test litiga-

tion or suggestion of administrative or legislative reform

when appropriate

1 The Fund’s charter was approved by a New York Court, author-

ing the organization to serve as a legal aid society. It is entirely

independent of other organizations, and is supported by contribu-

tions from the public.

2See generally, Cruz v. Beto, 405 U.S. 319 (1972) ; Haines v.

Kerner, 404 U.S. 519 (1972); Younger v. Gilmore, 404 U.S. 15

(1971) (amicus) ; Gray v. Creamer, —— F.2d ——, No. 71-1714

(8rd Cir. Aug. 14, 1972); Mead v. Parker, —— F.2d ——, No.

71-2462 (9th Cir. July 20, 1972) ; Wilkinson v. Skinner, —— F.2d

—, 11 Cr.L. Rptr. 2417 (2nd Cir. June 28, 1972) ; Goodwin v.

Oswald, —— F.2d ——, 11 Cr.L. Rptr. 2360 (2nd Cir. June 19,

1972) (amicus) ; Wright v. McMann, 460 F.2d 126 (2nd Cir. 1972) ;

Jones V. Rouse, 457 F.2d 1818 (5th Cir. 1972) ; Rodriquez v. Mc- >

Ginnis, 456 F.2d 79 (2nd Cir. 1972) (en banc), cert. granted, ——

U.S. —— (June 19, 1972) ; Smith v. Robbins, 454 F.2d 696 (1st

Cir. 1972) (amicus); Novak v. Beto, 453 F.2d 661, reh. en banc

denied, 456 F.2d 1303 (5th Cir. 1972), pet. cert. filed sub nom.

Sellars v. Beto, No. 71-6789 O.T. 1971; Inmates of Attica Correc-

_

3

Recognizing also the discriminatory features of the

American bail system,’ and the fact that actual conditions

of pretrial detention throughout the country,‘ 1) are incon-

sistent with the presumptively innocent status of awaiting

trial prisoners, 2) threaten to adversely affect the funda-

mental right to a fair trial,* and 3) frequently bear little

relationship to the State’s legitimate interest of insuring

the presence of the accused at trial,* LDF has developed

tional Facility v. Rockefeller, 453 F.2d 12 (2nd Cir. 1971) ; Nolan

v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971) ; United States ex rel.

Kendzterski v. Brantley, 447 F.2d 806 (7th Cir. 1971); Holt v.

Sarver, 442 F.2d 304 (8th Cir. 1971); Sostre v. McGinnis, 442

F.2d 178 (2nd Cir. 1971) (amicus) ; Jackson v. Godwin, 400 F.2d

529 (Sth Cir. 1968); Inmates of the Boys’ Training School v.

Affleck, —— F. Supp. ——, No. 4529 (D.R.I. July 28, 1972) ; Nat’l

Prisoners’ Reform Ass’n v. Sharkey, —— F. Supp. ——, No. 4884

(D.R.I. May 9, 1972) ; Chicago Connections v. Bensinger, No. 71C

2382 (N.D. Ill. Mar. 30, 1972) ; Little v. Cherry, No. LR-71-C-89

(E.D. Ark. Dec. 30, 1971) ; Sostre v. Otis, 330 F. Supp. 941 (S.D.

N.Y. 1971) ; Clutchette v. Procunier, 328 F. Supp. 767 (N.D. Cal.

1971) ; Bundy v. Cannon, 328 F. Supp. 165 (D. Md. 1971) ; Fortune

Society v. McGinnis, 319 F. Supp. 901 (S.D. N.Y. 1970) ; Carothers

v. Follette, 314 F. Supp. 1014 (S.D. N.Y. 1970) ; Morris v. Travi-

sono, 310 F. Supp. 857 (D.R.J. 1970).

The issues presented in the above cases cover a broad spectrum

of the difficulties faced by prisoners in realizing their fundamental

rights as American citizens.

* See, Foote, The Coming Constitutional Crisis In Bail: II, 113

U. Pa. L. Rev. 1125 (1965). In Schilb v. Kuebel, 404 U.S. 357, 372

(1971), this Court upheld an Illinois law which “brought reform

and needed relief to the State’s bail system.”

‘E.g., Mattick & Aikman, The Cloacal Region of American Cor-

rections, 381 Annals of the American Academy of Political and

Social Sciences 109 (1969) ; McGee, The Administration of Justice:

The Correctional Process, 5 N.P.P.A.J. 225 (1959); 1970 Nat'l

Jail Census (Sup. Doc., U.S. Gov't Printing Off., Wash., D.C.).

‘Rankin, The Effect of Pre-trial Detention, 39 N.Y.U.L. Rev.

641 (1964).

* Note, Constitutional Limitations on the Conditions of Pre-trial

Detention, 79 Yale L.J. 941 (1970) ; Note, Incarcerating The In-

nocent: Pre-trial Detention In Our Nation’s Jails, 21 Buf. L. Rev.

891 (Spring 1972).

4

and participated in substantial nationwide litigation on

behalf of pretrial detainees, beginning with the case of

McDonald v. Board of Election Commissioners, 394 U.S,

802 (1969)."

As will be discussed further below, the lower federal

courts in the past few years have consistently applied the

fundamental constitutional principles of due process of law

so as to protect the rights of accused persons, incarcerated

while awaiting trial, not to be subjected to measures that

are, in reality, punitive, and which bear no reasonable rela-

tionship to the central purpose of pretrial detention: assur-

ing presence of the defendant at trial. The decisions of

the courts below in Goosby v. Osser appear to sanction the

loss of a citizen’s most precious and basic right, the vote,

without requiring a strong showing by the State that such

disenfranchisement is either necessary or the least restric

tive means of serving some legitimate State interest. For

this reason, we respectfully present our views on the issue

before the Court. The parties have consented to the filing

of a brief by amici, and copies of their letters of consent

are being submitted to the Clerk with this Brief.

Issue Presented

1. Whether a substantial constitutional question, suff-

cient to warrant the convening of a three-judge District

7 See generally, Jones v. Wittenberg, 323 F. Supp. 93, 330 F.

Supp. 707 (N.D. Ohio 1971), aff'd sub nom. Jones v. Metzger, 456

F.2d 854 (6th Cir. 1972); Hamilton v. Love, 328 F. Supp. 1182

(E.D. Ark. 1971) ; Seale v. Manson, 326 F. Supp. 1875 (D. Conn.

1971) ; Davis v. Lindsay, 321 F. Supp. 1134 (S.D.N.Y. 1970);

Palmigiano v. Travisono, 317 F. Supp. 776 (D.R.I. 1970) ; Inmates

of the Milwaukee Jail v. Petersen, 51 F.R.D. 540 (E.D. Wis. 1971) ;

Taylor v. Sterrett, —— F. Supp. ——, Civ. Action No. 3-5220-B

(N.D. Tex. June 5, 1972) ; Collens v. Schoonfield, —— F. Supp.

——, Civil No. 71-500-K (D. Md. May 15, 1972) ; Inmates of the

Cook County Jail v. Tierney, No. 68C 504 (N.D. Ill. Aug. 22, 1968).

———

5

Court, is presented by a complaint alleging that pretrial

detainees in Philadelphia are absolutely denied their funda-

mental right to register and vote, by virtue of the combina-

tion of a state law, which specifically precludes absentee

ballots, and administrative practices and policies, which

foreclose alternative methods of voting by unconvicted

prisoners, which denial has not been shown, by the state,

to be reasonably or necessarily related to its only legitimate

interest of guaranteeing the presence of accused persons

at trial.

- ARGUMENT

A Substantial Constitutional Question, Sufficient To

Warrant the Convening of a Three-Judge District Court,

Is Presented by a Complaint Alleging the Denial by

Pennsylvania of the Fundamental Right of Unconvicted

Prisoners To Vote, Which Denial Has Not Been Shown,

by the State, To Be Reasonably or Necessarily Related

To Its Only Legitimate Interest of Guaranteeing the

Presence of Accused Persons At Trial.

Although the merits of petitioner’s constitutional claims

need not be decided at this point, the discussion below will

demonstrate the substantiality of the question presented.

It is now established, as a matter of rudimentary due

process, that a person may not constitutionally be punished

without trial, or before his or her guilt is proven beyond

a reasonable doubt. Kennedy v. Mendoza-Martinez, 372

US. 144 (1963) ; In Re Winship, 397 U.S. 358 (1970). This

Court, in Stack v. Boyle, 342 U.S.‘1 (1951), took note of

the important role which bail, or pretrial release, plays

in preserving the fundamental presumption of innocence.

It may be that the State’s legitimate interest of insuring

the presence of accused persons at trial could justify the

6

detention of some persons while awaiting trial. It does

not follow, however, that such incarceration of unconvicted

persons authorizes the extent of oppressive institutional

treatment that exists in most local jails. As Blackstone

appropriately observed:

“This imprisonment, as has been said, is only for safe

custody, and not for punishment; therefore in this

dubious interval between commitment and trial, a

prisoner ought to be used with utmost humanity; and

neither loaded with needless fetters, nor subjected to

other hardships than such are requisite for the pur-

pose of confinement only.”

4 Blackstone, Commentaries 300 (1765).

And Circuit Judge Freedman; sitting as a District Judge,

in Butler v. Crumlish, 229 F. Supp. 565, 567 (E.D. Pa. 1964),

stated :

“The constitutional authority for the State to distin-

guish between criminal defendants by freeing those

who supply bail pending trial and confining those who

do not, furnishes no justification for any additional

inequality of treatment beyond that which is inherent

in the confinement itself.”

In accordance with these basic principles, numerous

courts around the country have granted relief to pretrial

detainees who complained of unconstitutionally inhumane’

® Barbaric and decrepit conditions of penal confinement have

been cited as one of the causes of prison insurrections—the ultimate

tactical resource available to inmates who want to force change.

See, The Black Hole of Manhattan, Time Magazine, Aug. 24, 1970,

at 28-29; Revolt of the Powerless, 5 Newsletter of the Correctional

Association of N. Y. (No. 3, June 1971). Respect for the law might

be enhanced if pretrial detainees were treated in a non-punitive

manner, in accord with their legal presumption of innocence.

--

and punitive jail conditions. In such cases, the courts

determined, on the basis of the record, that the challenged

restrictions were not inherent in the concept of pretrial

detention, and were not reasonably or necessarily related

to the State’s only legitimate interest—guaranteeing the

presence of accused persons at trial.’

It cannot be lightly assumed, without evidence,’ that

effective disenfranchisement of unconvicted prisoners is

actually necessary for the maintenance of pretrial detention

in Philadelphia. Indeed, it appears that the frequently

used and simplified procedure of registering and voting by

absentee ballots would not cause any substantial inter-

ference with the operation of the jails in Philadelphia.

In any event, it would seem incumbent upon the District

Court to hear.testimony, and make specific findings of fact,

on this critical point. Accordingly, the case should be

remanded to the trial court for further proceedings in this

clearly justiciable matter.

=

*See, Anderson v. Nosser, 456 F.2d 835 (5th Cir. 1972) (en

bane) ; Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972); United

States ex rel. Jones v. Rundle, 453 F.2d 147 (8rd Cir. 1971) ;

Conklin v. Hancock, 334 F. Supp. 1119 (D.N.H. 1971) ; Tyler v.

Ciccone, 299 F. Supp. 685 (W.D. Mo. 1969) ; Payne v. Whitmore,

825 F. Supp. 1191 (N.D. Cal. 1971) ; Brenneman v. Madigan, ——

F. Supp. ——, 11 Cr.L.Rptr. 2248 (N.D. Cal. May 12, 1972);

Jackson v. Hendrick, No. 71-2437 (C.P. Phil. Pa. Apr. 7, 1972) ;

Wayne County Jail Inmates v. Wayne County Bad. Comm’rs, No.

173217 (Cir. Ct. Wayne Cty., Mich. May 18, 1971); In Re Cisson

(N.J.Super. Ct., Som. Cty. Mar. 24, 1972) ; and cases cited in n. 7,

infra. m

% The Partial Transcript of proceedings in the District Court on

October 6, 1971 shows that an offer of testimony was made relative

to possible administrative burden on the Registration Commission

and on the prison system, but that it was rejected as unnecessary

because of the Court’s disposition of the case on grounds of justi-

ciability.

CONCLUSION

The reasoning of various courts which have granted

relief from unconstitutional conditions of pretrial deten-

tion, bearing no reasonable or necessary relationship to

the State’s interest of insuring the presence of accused

persons at trial, is in accord with this Court’s fundamental

pronouncements on the presumption of innocence before

trial, and warrants Supreme Court approval. The judg-

ments of the courts below appear to be in conflict with

those principles, and they should therefore be reversed,

and the case remanded to the District Court.

Respectfull sub teds

na20

ACK GREEWBERG

Srantey A. Bass

10 Columbus Circle

Room 2030

New York, New York 10019

(212) 586-8397

Attorneys for Amici Curiae