Joseph v. United States of America Brief Amici Curiae

    I n  t h e

Imtofc BUtm (Hourt of Kppmh
Fob t h e  F if t h  C ibcu it  

No, 25352

L ohis J o seph ,
Appellant,

—y.—

U n ited  S tates of A merica,
Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AND NATIONAL OFFICE 

FOR THE RIGHTS OF THE INDIGENT, AS 
AMICI CURIAE

J ack Greenberg 
M ich a el  M eltsner  
H aywood B u rn s

10 Columbus Circle
New York, New York 10019

Attorneys for the N.A.A.C.P. 
Legal Defense and, Educational 
Fund, Inc., and National Office 
For the Rights of the Indigent



I N D E X
PAGE

Interest of the Amici Curiae ........... .......................... - 1

Statement ..... ............... ...... ............. -.............. -..............  2

Specifications of Error ...... ........... —............. ........... . 5

A rgum ent ...................... ......................... ........... ...... .........................  5

I. In Extending Sentence Credit to Non-Bailed
Defendants Under a Mandatory Minimum Sen­
tence Congress Assumed That the Courts Would 
Continue to Give Sentence Credit to Non-Bailed 
Defendants Not Under a Mandatory Minimum 
Sentence ...............—..........-.......-............ -............  5

II. Due Process Requires That Time Served by a 
Non-Bailed Defendant Be Credited Against any 
Sentence Ultimately Imposed ...................-......... 13

Conclusion  ............. ............. ................... -.................. ..................-  28

Certificate of Service......................................................  29

A ppen dix—

Appendix I—Text 18 U.S.C. §3568 .........................  la

T able op A u t h o r it ie s :
Cases:
Akamine v. Murphy, 108 Cal. App.2d 294, 238 P. 2d

606 (1951) ........ ........- ............. .. ........ ................-....- 25
Allen v. United States, 264 P. Supp. 420 (M.D. Pa.

1966) .......... ................................................ ................ - 11
Amato v. United States, 374 F.2d 36 (3rd Cir. 1967) ....11,12
Anders v. California, 386 U.S. 738 (1967) ..... ..............  16
Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937) ......... 13



11

Ashwander v. Tennessee Valley Authority, 297 U.S.
288 (1936) ............................................................-......  13

Bandy v. United States, 81 S.Ct. 197 (1960) ................ 17
Bandy v. United States, 82 S.Ct. 11 (1961) ....... -......... 17
Bandy v. United States, 369 U.S. 815 (1962) ..............  17
Baxstrom v. Herold, 383 U.S. 107 (1966) ....   —  14
Bolling v. Sharpe, 347 U.S. 497 (1954) .....................—- 15
Booker v. Groat, 153 N.W.2d 178 (Mich. Ct. Appls.

1967) ............................................................................  28
Burns v. Ohio, 360 U.S. 252 (1959) ............................  16
Byers v. United States, 175 F.2d 654 (10th Cir. 1949)

11,12

Carlson v. Landon, 342 U.S. 524 (1952) ...................... 10

Douglas v. California, 372 U.S. 353 (1963) ..................  16
Draper v. Washington, 372 U.S. 487 (1963) ..............  15
Dressner v. Stoutamire, 5th Cir. No. 21802, decided

August 5, 1964 ...........................................................   18
Dunn v. United States, 38 F.R.D. 182 (W.D.S.C. 1965) 10
Dunn v. United States, 376 F.2d 191 (4th Cir. 1967)

5, 7, 8,11

Edwards v. California, 314 U.S. 160 (1941) .............. 16
Epperson v. Anderson, 117 U.S. App. D.C. 122, 326

F.2d 665 (D.C. Cir. 1963) .......................... ...... ..... . 10
Eskridge v Washington State Board, 357 U.S. 214 

(1958)  .....................................................................  15

Griffin v. Illinois, 351 U.S. 12 (1956) .......................... 14,15
Gulf, Colorado, and Santa Fe By. v. Ellis, 165 U.S. 150 

(1897)  ...................................................................... 14

Harper v. Virginia State Board of Elections, 383 U.S.
663 (1966) ...................................................................

PAGE

21



i l l

In Re Gault, 387 U.S. 1 (1967) ______ ______ ______ - 23
In Re Shuttlesworth, 369 U.S. 35 (1962) ___ ______  18

Lane v. Brown, 372 U.S. 477 (1963) .........................15-16
Lanza v. New York, 370 U.S. 139 (1962) ......... ...........  26

Marbury v. Madison, 1 Granch, 137 (1803) ............ . 19

NLRB v. Jones and Laughlin Steel Corp., 301 U.S.
1 (1936)........................................................................ 13

Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967)
23, 24, 27

Powers v. Taylor, 327 F.2d 498 (10th Cir. 1964) ...... 11,12

Rinaldi v. Yeager, 384 U.S. 305 (1966) .....................  16
Robert v. LaVallee,-----  U.S. —*—, 36 U.S. L. Week

3171 (Oct. 23, 1967) ............................................. . 16
Robinson v. California, 370 U.S. 660 (1962) ...............  19

PAGE

Sacco v. Warden, -----  F.2d ----- , Docket No. 31826
(2d Cir., November 9, 1967) ........ ................ ..............  12

Sawyer v. United States 376 F.2d 615 (8th Cir. 1967) ....9,10 
Schreter v. United States, 265 F.Supp. 369 (D. N.J.

1967) ........... .................................. ....................- ........ 10
Scott v. United States, 326 F.2d 343 (8th Cir. 1964) ....11,12
Screws v. United States, 325 U.S. 91 (1945) ..... ........ 13
Shelley v. Kraemer, 334 U.S. 1 (1948)  ........... ........... 15
Short v. United States, 344 F.2d 550 (D.C. Cir. 1965) .... 23
Skinner v. Oklahoma, 316 U.S. 535 (1942) .................  14
Smith v. Bennett, 365 U.S. 708 (1961) ......... ...............  16
Stack v. Boyle, 342 U.S. 1 (1951) ................................22, 23
Stapf v. United States, 367 F.2d 326 (D.C. Cir. 1966)

5, 7, 8,11,15, 27
Swenson v. Bosler, 386 U.S. 258 (1967) __________  16



IV

United States v. Daugherty, 269 U.S. 360 (1926) ..........  28
United States v. Fullwood, Unreported Opinion, 65 Cr.

379 (S.D.N.Y., May 5, 1967) .......... ...................- .....  12
United States v. Smith, 379 F.2d 628 (7th Cir. 1967) .... 8

Wade v. United States, 388 U.S. 218 (1967) .............. 25
White v. Crook, 251 F.Snpp. 401 (M.D. Ala. 1966) .... 21

PAGE

Yates v. United States, 356 U.S. 363 (1958) ..............23, 24
Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................  14

C o n stitutional  and S tatutoey P eovisions

Provisions:
U.S. Const., Amend. I V ..................................................  26
U.S. Const., Amend. V ..................................................  15
U.S. Const., Amend. VIII ................................ 18,19, 20, 21
U.S. Const., Amend. XIV .........................14,15,18,19, 21
18 U.S.C. §3568 ........................................................5, 6, 7,13
18 U.S.C. §1708 ...............................................................  3
Bail Reform Act of 1966, 18 U.S.C. §§3041, 3141-3143,

3146-3152, 3568 ...................................................... 6,12, 22
18 U.S.C. §2255 ...............................................................  3

O t h e b  A u th o eities

Authorities:
H.R. Rep. No. 2058, 86th Cong., 2d Sess. (1966) ........  6
S. Rep. No. 1696, 86th Cong., 2nd Sess. (1966) ....... . 6
U.S. Code Cong, and Addin. News 1960, p. 3288 .....- 6
106 Cong. Rec. 15819-20 (1960) ........... ......................  6
Foote, The Coming Constitutional Crisis in Bail 113

U.Pa. L. Rev. 959, 1125 (1965) ..............18,19, 20, 23, 25
N ational C onpeeence  on B ail and Cbim in a l  J u stice , 

B ail in  t h e  U nited  S t a te s : 1964 (1964) 24



I n  t h e

Initeii ©curt at Appals
F ob t h e  F if t h  C ibcuit  

No. 25352

Louis J o seph ,
Appellant,

—v.—

U nited  S tates of A mebica,
Appellee.

ON APPEAL FBOM THE UNITED STATES DISTBICT COUBT 
FOB THE EASTEEN DISTBICT OF LOUISIANA

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AND NATIONAL OFFICE 

FOR THE RIGHTS OF THE INDIGENT, AS 
AMICI CURIAE

Interest of Amici Curiae

Recent years have witnessed increased public concern 
over unequal operation of the criminal law as it affects the 
poor. One of the main areas of criticism has been the money 
bail system. Judges, scholars, administrators and private 
researchers have pointed out the manifest injustice of a 
system which incarcerates one man prior to conviction be­
cause he cannot pay for his freedom, while releasing an­
other, otherwise similarly situated, who can. This ease 
raises the question of how the period of presentence de­



2

tention of the non-bailed defendant is to he treated upon 
subsequent conviction and sentencing.

Since its inception twenty-eight years ago, the N.A.A.C.P. 
Legal Defense and Educational Fund, Inc. has been com­
mitted to the goal of equal justice under law. The Fund 
employs a staff of over twenty lawyers who represent Ne­
groes in cases—both civil and criminal—involving equality 
of treatment. Its salaried lawyers receive no fees from its 
clients. The Fund’s budget is derived primarily from pri­
vate donations.

Last year the Fund established as a separate corporation 
The National Office for the Rights of the Indigent (NORI) 
as a response to the need for more and better legal repre­
sentation of the poor. It too employs salaried attorneys who 
receive no fees from clients. Its income presently derives 
from a Ford Foundation grant. NORI is cooperating with 
lawyers in both urban and rural areas to assist the indigent 
in individual cases, while at the same time suggesting to 
appellate courts the need for changes in legal doctrines 
which unjustly affect the poor. Its concern for the rights of 
the indigent lies in both the civil and criminal areas.

Statement

This case presents for decision the question of how the 
period of presentence detention of the non-bailed defendant 
is to be treated upon subsequent conviction and sentencing.

On or about April 22, 1966 the appellant, Louis Joseph, 
was arrested in connection with the alleged theft or receipt 
of stolen mail.1 He was arraigned before the United States 
Commissioner on April 25, 1966, at which time counsel was

1 According to the court below, the record in the criminal prosecution, 
No. 30407, does not indicate the date of arrest (R. 13).



3

appointed and appearance bond fixed at $2,000. Appellant 
entered a plea of not guilty on each of the two counts on 
which he wras charged. As he was unable to post the bond 
required in his case due to indigency, he remained in cus­
tody.

On May 25, 1966 the accused withdrew his plea of not 
guilty to the second of the two counts lodged against him, 
which charged him with receiving possession of the contents 
of stolen mail.2 3 On that date he was sentenced to a term 
of thirty months in prison. On August 31, 1967 Mr. Joseph 
filed a pro se motion in forma pauperis (R 5-9) pursuant 
to Title 28 U.S.C. Section 2255s seeking sentence credit for 
thirty-four days spent in custody prior to sentencing.

2 Section 1708, Title 18 U.S.C., which provides:
§1708. Theft or receipt of stolen mail matter generally

Whoever steals, takes, or abstracts, or by fraud or deception ob­
tains, or attempts so to obtain, from or out of any mail, post office, 
or station thereof, letter box, mail receptacle, or any mail route or 
other authorized depository for mail matter, or from a letter or mail 
carrier, any letter, postal card, package, bag, or mail, or abstracts or 
removes from any such letter, package, bag, or mail, any article or 
thing contained therein, or secretes, embezzles, or destroys any such 
letter, postal card, package, bag, or mail, or any article or thing con­
tained therein; or

Whoever steals, takes, or abstracts, or by fraud or deception ob­
tains any letter, postal card, package, bag, or mail, or any article or 
thing contained therein which has been left for collection upon or 
adjacent to a collection box or other authorized depository of mail 
matter; or

Whoever buys, receives, or conceals, or unlawfully has in his pos­
session, any letter, postal card, package, bag, or mail, or any article 
or thing contained therein, which has been so stolen, taken, em­
bezzled, or abstracted, as herein described, knowing the same to have 
been stolen, taken, embezzled, or abstracted—

* » # * #
Shall be fined not more than $2,000 or imprisoned not more than five 

years, or both. As amended July 1, 1952, e. 535, 66 Stat. 314.
3 28 U.S.C. §2255 provides:

§2255. Federal custody; remedies on motion attacking sentence
A prisoner in custody under sentence of a court established by Act 

of Congress claiming the right to be released upon the ground that



4

By opinion and order of September 5, 1967, the Hon. Ed­
ward J. Boyle, Sr. (U.S.D.J. E.D. La.) denied appellant 
the relief sought (R 10-12). Appellant has appealed from 
judgment entered upon this opinion September 7, 1967, de­
nying the motion and dismissing the application (R 14).

the sentence was imposed in violation of the Constitution or laws of 
the United States, or that the court was without jurisdiction to im­
pose such sentence, or that the sentence was in excess of the maxi­
mum authorized by law, or is otherwise subject to collateral attack, 
may move the eourt which imposed the sentence to vacate, set aside 
or correct the sentence.

A motion for such relief may be made at any time.
Unless the motion and the files and records of the ease conclu­

sively show that the prisoner is entitled to no relief, the court shall 
cause notice thereof to be served upon the United States attorney, 
grant a prompt hearing thereon, determine the issues and make find­
ings of fact and conclusions of law with respect thereto. If  the 
court finds that the judgment was rendered without jurisdiction, 
or that the sentence imposed was not authorized by law or otherwise 
open to collateral attack, or that there has been such a denial or 
infringement of the constitutional rights of the prisoner as to ren­
der the judgment vulnerable to collateral attack, the court shall 
vacate and set the judgment aside and shall discharge the prisoner 
or resentence him or grant a new trial or correct the sentence as 
may appear appropriate.

A court may entertain and determine such motion without requir­
ing the production of the prisoner at the hearing.

The sentencing court shall not be required to entertain a second 
or successive motion for similar relief on behalf of the same prisoner.

An appeal may be taken to the court of appeals from the order 
entered on the motion as from a final judgment on application for a 
writ of habeas corpus.

An application for a writ of habeas corpus in behalf of a prisoner 
who is authorized to apply for relief by motion pursuant to this 
section, shall not be entertained if it appears that the applicant has 
failed to apply for relief, by motion, to the eourt which sentenced 
him, or that such court has denied him relief, unless it also appears 
that the remedy by motion is inadequate or ineffective to test the 
legality of his detention. June 25, 1948, c. 646, 62 Stat. 967; May 
24, 1949, c. 139, §114, 63 Stat. 105.



5

Specifications of Error

1. The court below erred in refusing to credit the time 
appellant served prior to sentencing against his sentence 
of thirty months.

A R G U M E N T

I.

In Extending Sentence Credit to Non-Bailed Defen­
dants Under a Mandatory Minimum Sentence Congress 
Assumed That the Courts Would Continue to Give Sen­
tence Credit to Non-Bailed Defendants Not Under a 
Mandatory Minimum Sentence.

The basis on which the court below denied sentence 
credit is not clear. The opinion takes the position that 
either (a) The statute providing for automatic sentence 
credit, 18 U.S.C. §3568, applies only to cases involving a 
mandatory minimum sentence; or (b) the cases of Stapf v. 
U.S., 367 F.2d 326 (D.C. Cir. 1966) and Dunn v. U.S., 376 
F.2d 191 (4th Cir. 1967) extend presentence credit to the 
non-bailed defendant, but only to those sentenced to the 
maximum term under the applicable statute (R 12). The 
Court therefore concluded that since the petitioner in the 
instant case was neither sentenced under a mandatory 
minimum statute or given the maximum penalty for his 
offense, he was not entitled to credit for the time he spent 
in custody prior to trial. Upon close analysis, we respect­
fully submit, this view of the law is incorrect.

In denying credit to appellant the court below relied upon 
Title 18 U.S.C. §3568, as it read at the time of sentence. 
The relevant portion stated:



6

The Attorney General shall give any such person [the 
defendant being sentenced] credit toward service of 
his sentence for any days spent in custody prior to the 
imposition of sentence by the sentencing court for want 
of bail set for the offense under which the sentence was 
imposed where the statute requires the imposition of a 
minimum mandatory sentence.4 5

The court below has interpreted this section as not only 
extending automatic credit to those convicted under statutes 
with a mandatory minimum sentence, but as indicating that 
there is no right to sentence credit when the person is not 
sentenced under a statute requiring mandatory minimum 
sentence. Congress intended no such implication.

The portion of 18 U.S.C. §3568 set out, is a 1960 amend­
ment to that section. It represents a congressional response 
to an inequitable situation. Under the law as it existed at 
that time a person charged with violating a statute requir­
ing the imposition of a mandatory minimum sentence could 
not get credit for presentence time spent in custody for 
want of bail. If, for example, the statute carried a five year 
minimum sentence the least that the court could give a 
bailed or a non-bailed defendant was five years—although 
the one had been free while awaiting trial and the other 
incarcerated. The “primary purpose” of the amendment 
was to eliminate this disparity in sentences.8

In looking to the legislative history of the 1960 amend­
ment, the Court of Appeals for the District of Columbia

4 18 U.S.C. 3568. Section 3568 was amended, effective September 20, 
1966 by §4 of the Bail Reform Act of 1966 to make it explicit that credit 
be given for all presentence custody.

5 See H.R. Rep. No. 2058, 86th Cong., 2d Sess. (1960). S. Rep. No. 
1696, 86th Cong. 2d Sess. (1960); U.S. Code Cong, and Admin. News 
1960, p. 3288; 106 Cong. Rec. 15819-20 (1960).



7

emphasized that it was not the intent of Congress to limit 
sentence crediting but to widen i t :

Congress was aware of and approved the general prac­
tice of federal courts to provide defendants credit 
against their sentence for time spent in jail for lack of 
bail. But in the absence of a statutory amendment a 
court did not have authority to give such credit to de­
fendants sentenced for minimum term offenses. This 
situation, in the view of Congress, created an unwar­
ranted disparity in the effective sentences of defendants 
convicted of minimum term offenses, in terms of total 
time in detention, between those who made bail and 
those who did not. To remove this disparity Congress 
amended §3568 to provide an automatic credit for mini­
mum term offenses.

Stapf v. United States, 367 F.2d 326, 328 (D.C. 
Cir. 1966)

The court in Stapf held that both as a matter of statu­
tory interpretation and of constitutional requirement sen­
tence credit must be extended to the non-bailed defendant 
not under a mandatory minimum sentence.

Here the court below has treated the 1960 amendment as 
an example of expressio unius est exclusio alterius. The 
Court of Appeals for the Fourth Circuit in a unanimous 
decision following Stapf has clearly rejected this notion:

It is plainly declaratory of the original congressional 
aim in the enactment of section 3568—to eliminate an 
existing disparity by extending to all offenders a bene­
fit theretofore enjoyed by some; the aim was never to 
create a new disparity by offering the benefit to those 
previously denied it and denying it to those to whom 
it had always been available. Dunn v. United States,



8

376 F.2d 191, 194 (4th Cir, 1967) (opinion by Sobeloff,
J.).

Eecently, a -unanimous Court of Appeals for the Seventh 
Circuit in affirming a criminal conviction in the District 
Court in the Northern District of Illinois vacated the sen­
tence imposed under that conviction because the court below 
had not given the defendant credit for the pre-sentence time 
spent in custody. Citing S ta ff  and Dunn, the Court of Ap­
peals remanded the case to the district court for the “im­
position of a legal sentence” (emphasis supplied). United 
States v. Smith, 379 F.2d 628, 634 (7th Cir. 1967).

Not only did the Court below take a different view from 
that taken by the Courts of Appeals in the Stapf, Dunn, and 
Smith cases, but it interpreted them as having no applica­
tion in the instant case because in those cases the defendant 
had been sentenced to the maximum period of imprisonment 
provided in the statutes, whereas the thirty months im­
posed here falls far short of the maximum period of in­
carceration under the statute involved (R 11-12). While it 
is correct that maximum sentences were involved in Stapf 
and Dunn that is a distinction of no moment as far as the 
issue presently before the court is concerned. The Stapf 
and Dunn cases did not turn upon the defendant having 
been given the maximum sentence. The bases of these de­
cisions a re :

(1) That Congress, in legislatively providing for sen­
tence credit in cases of persons convicted under statutes 
having a mandatory mhzsmum sentence, assumed that the 
courts would continue to give such credit to other defend­
ants ; and

(2) Failure to do so would raise serious constitutional 
questions Stapf v. United States, supra at 328; Dunn v. 
United States, supra, at 193. [See II, infra].



9

The distinction made by the court below between recog­
nizing the right to sentence credit where the maximum sen­
tence has been imposed and denying that right where it 
has not, finds no basis in reading the Stapf and Dunn 
opinions. Such a view of the Courts’ opinions would simply 
create another arbitrary classification.

The focus of the two opinions is on the disparity between 
the sentencing of those defendants who come within the 
explicit terms of the 1960 amendment and those “defendants 
sentenced for offenses not carrying minimum terms of im­
prisonment.” Stapf at 328, See also, Dunn at 193.

This disparity in treatment constitutes an irrational 
and arbitrary classification. . . . We perceive no ra­
tional basis for a classification whereby credit for pre­
sentence custody for lack of bail is inquired as to mini­
mum term offenses but is deniable as to the other, less 
serious offenses. Neither deterrence, retribution, re­
form nor any other consideration was offered by the 
Government for our consideration, as providing a 
rationale for this discrimination.

Stapf, 328-329

Nor are the cases cited by the court below as rejecting 
Stapf persuasive on the question at bar. Sawyer v. United 
States, 376 F.2d 615 (1967), does not represent an out of 
hand rejection of the Stapf anlysis. The court there prop­
erly distinguished Stapf from the case before it by point­
ing out that the ruling in Stapf applies to the situation 
where a defendant has been held in custody for want of 
bail (376 F.2d at 618). The defendant Sawyer had not been 
held in custody for lack of ability to make bail—being 
held on a capital charge, he had never been admitted to 
bail. This is an important distinction since questions re­
lating to bail in capital cases have always been treated as a



10

thing apart in the scheme of our jurisprudence.6 The court 
in Stapf had made it clear that it was concerned with the 
sentencing inequities experienced by those who had been 
held in custody for want of bail. (367 F.2d at 330). It was 
on this basis that the court distinguished its earlier opinion 
in Epperson v. Anderson, 117 U.S. App. D.C. 122, 326 F.2d 
665 (1963), a case in which a defendant who had been denied 
bail after a guilty plea did not receive credit for the period 
served between the plea and sentencing.

Moreover, Sawyer cannot be taken as a rejection of Stapf 
by the Eighth Circuit because the court in Sawyer also 
stated that it was not clear whether the sentencing court 
had taken into consideration the time the defendant had 
been in custody prior to his sentence. (376 F.2d at 618). 
Since it was not clear whether the credit was given the 
court refused to assume that it was not. Although the court 
below took Sawyer to be a rejection of Stapf (R 12-13), the 
opinion of the Eighth Circuit in that case makes it clear 
that no such result was intended:

We, therefore, find it unnecessary to concur in or re­
ject the conclusion reached in Stapf and reserve our 
judgment on it until an identical issue is presented to 
this court. Sawyer v. United States, supra, at 618.

Schreter v. United States, 265 F. Supp. 369 (D.N.J. 1967) 
also cited below as rejecting Stapf is not persuasive. Not 
only did this case take the restrictive view that 18 U.S.C. 
3568 meant only those sentenced to mandatory minimum 
terms were entitled to sentence credit, but it relied heavily 
upon the district court decision in Dunn v. United States, 
38 F.R.D. 182 (W.D.S.C. 1965) which, at the time the 
Schreter decision was written, had already been reversed

6 See Carlson v. Landon, 342 U.S. 524, 545 (1952).



11

by the Fourth Circuit, Bunn v. United States, 376 F.2d 191 
(1967). In taking note of the Stapf opinion, Schreter ex­
plicitly refused to express any view on its correctness (265 
F. Supp. at 370).

The only other case cited in the opinion below as reject­
ing Stapf is Allen v. United States, 264 F.Supp. 420 (M.D. 
Pa. 1966). After paying “due deference to the holding of 
Stapf v. United States,” (at 423) it choose to follow the hold­
ings of Byers v. United States, 175 F.2d 654 (10th Cir. 
1949); Powers v. Taylor, 327 F.2d 498 (10th Cir. 1964), and 
Scott v. United States, 326 F.2d 343 (8th Cir. 1964).7 These 
eases held that a convicted defendant is not entitled to a 
credit for presentence custody. Footnote 10 in the Stapf 
case makes some worth-while observations on these three 
cases as they relate to the issue at hand:

(1) The sentencing courts in Byers and Scott apparently 
did give credit for presentence detention in those cases.

(2) Byers arose before the 1960 amendment to §3568, and 
Powers merely cited Byers without reference to any dis­
crimination problem.

(3) None of these three decisions dealt with the dis­
crimination issue and its constitutional implications as dis­
cussed in Stapf. There is no indication that the constitu­
tional infirmities inherent in such discrimination were ever 
considered by these courts.

In addition, the Court below, in connection with the re­
jection of Stapf, also made reference to the case of Amato 
v. United States, 374 F.2d 36 (3rd Cir. 1967). There ap­
pears to be no reported opinion below in this case. In a 
short per curiam opinion the Court of Appeals for the 3rd

7 The court below, in a “See also” reference on the rejection of Stapf, 
also eited these three cases.



12

Circuit affirms the refusal of the sentencing court to give 
credit for time spent in custody awaiting trial. Apparently, 
although the Court does not elaborate its view, the facts 
that the defendant had not been sentenced to the maximum 
sentence and that he had been sentenced before the effective 
date of the provision of Bail Reform Act of 1966 assuring 
all defendants of sentence credit for presentence incarcera­
tion, were determinative in the decision to deny him credit.

To the extent these decisions adopt a restrictive interpre­
tation of the 1960 amendment to §3568, we submit they do 
not comport with the legislative background out of which 
the amendment arose. The view taken by the Fourth, 
Seventh and D.C. Circuits that the amendment was to 
broaden rather than delimit the area of sentence credit is 
a more reasonable one in the light of the problem to which 
the Congress was addressing itself.8 As a matter of statu­
tory interpretation it should be preferred because of its 
greater reasonableness.

In addition, a restrictive interpretation of the amendment 
cannot stand constitutional scrutiny. From the opinion of 
the courts of appeals taking the restrictive view, Amato, 
Sawyer, Scott, Byers, Powers it appears as if they have 
not taken into full consideration the constitutional implica­
tions of their position. Of the cases cited which these courts 
have decided since the passage of the 1960 amendment, 
only in the 10th Circuit case of Powers v. Taylor, 327 F.2d 
498 (1964) did the appellant have the benefit of counsel. 
Appellants Staff, Dunn, and Smith, in the D.C., 4th and

8 In a recent opinion the Court of Appeals for the Second Circuit 
declared that Stapf had been neither adopted or rejected by that Circuit
as it has not yet had to decide the question. Sacco v. Warden,-----  F.2d
----- , docket No. 31826, decided Nov. 9, 1967. At least one district court
in that circuit in an unreported opinion has followed the Stapf and Bunn 
logic, however. TJ.S.A. v. Fulwood, 65 Cr 379 (S.D.N.Y.) decided May 5, 
1967. (Cooper, J.).



13

7th Circuits respectively, all had the benefit of counsel on 
appeal. In these cases the constitutional issues were raised 
before the courts and they all agreed that the restrictive 
reading of the 1960 amendment would result in arbitrary 
and irrational classification such as to void the amendment 
on constitutional grounds.

There is a presumption of rationality which must attach 
to the acts of Congress. It cannot be assumed that Con­
gress in passing this amendment intended to create un­
reasonable categories. When faced with two possible modes 
of interpreting congressional intent, one which vitiates the 
statute on constitutional grounds, the other which preserves 
it, the latter must be preferred. Where possible, courts 
should always read statutes so as to preserve rather than 
destroy them. See, Screws v. United States, 325 U.S. 91, 
98 (1945); Ashwander v. Tennessee Valley Authority, 297 
U.S. 288, 348 (1936); NLRB  v. Jones & Laughlin Steel 
Corp., 301 U.S. 1, 30 (1936); Anniston Mfg, Co. v. Davis, 
301 U.S. 337, 351 (1937).

II.
Due Process Requires That Time Served by a Non- 

Bailed Defendant be Credited Against Any Sentence Ulti­
mately Imposed.

It should be clear from the reasons set out in part I that 
this Court need not go into the broad ranging constitutional 
questions latent in this case in order to assure the appellant 
of the presentence credit due him. However, should this 
court reject the approach to statutory interpretation dis­
cussed above and take a more narrow view of 18 U.S.C. 
§3568, we submit that for constitutional reasons it must 
credit appellant with the presentence period spent in cus­
tody by reason of being unable to make bail.



14

A. Irrational Classification.

The equal protection clause of the Fourteenth Amend­
ment commands that distinctions drawn by a State— 
whether in the exaction of pains or in the allowance of 
benefits—must not be irrelevant, arbitrary or invidious. 
Where a state chooses to grant an advantage to one class 
and not to others “ [T]he attempted classification . . . must 
always rest upon some difference which bears a reasonable 
and just relation to the act in respect to which the classifica­
tion is proposed, and can never be made arbitrarily and 
without any such basis.” Gulf, Colorado, and Santa Fe Ry. 
v. Ellis, 165 U.S. 150, 155, 159 (1897).9 See, e.g., Skinner v. 
Oklahoma, 316 U.S. 535 (1942); Baxstrom v. Herold, 383 
U.S. 107 (1966).

The lesson of these cases is that there can be no differ­
ence in treatment, unless there is a rational distinction be­
tween the classes affected. Or, to put it another way, where 
no rational distinction exists between two persons or 
classes, the law must treat them alike. As Mr. Justice 
Black stated in Griffin v. Illinois, 351 U.S. 12 (1956) at 17:

. . .  our own constitutional guarantees of due process 
and equal protection both call for procedures in crim­
inal trials which allow no invidious discriminations be­
tween persons and groups of persons. Both equal pro­
tection and due process emphasize the central aim of

9 “But arbitrary selection can never be justified by calling it classifica­
tion. The equal protection demanded by the 14th Amendment forbids this. 
No language is more worthy of frequent and thoughtful consideration, 
than Mr. Justice Matthews speaking for this court in Tick Wo v. Hopkins, 
118 U.S. 356, 369: ‘When we consider the nature and the theory of our 
institutions of government, the principals upon which they are supposed 
to rest, and review the history of their development, we are constrained to 
conclude that they do not mean to leave room for the play and action 
of purely personal and arbitrary power’ ” 165 U.S. at 159.



15

our entire judicial system—all people charged with 
crime must, so far as the law is concerned, ‘stand on 
an equality before the bar of justice in every American 
court.’

Under the due process clause of the 5th amendment, the 
federal government can no more create and give effect to 
irrational and arbitrary categorization than the states can 
under the equal protection clause of the 14th amendment. 
Bolling v. Sharpe, 347 U.S. 497 (1954). The Supreme Court 
has made it clear that a court cannot by its affirmative ac­
tion perpetuate a privately created irrational discrimina­
tion. Shelley v. Kraemer, 334 U.S. 1 (1948). By the same 
token, a court cannot constitutionally give effect to an ar­
bitrary classification by its affirmative action—action which 
withholds from one class a right accorded to another as an 
element of the system of justice—when it is within the 
court’s power to prevent that discrimination. See, Stapf v. 
United States, 367 F.2d 326, 329 (D.C. Cir. 1966).

“Denial of credit in the context of a jurisprudence 
where others guilty of crimes of the same or greater 
magnitude automatically receive credit, would entail 
an arbitrary discrimination within the power and hence 
the duty of the court to avoid.” Stapf, supra, at 329.

See also, e.g. Griffin v. Illinois, 351 U.S. 12 (1956) (denial 
of free criminal trial transcript necessary for adequate ap­
pellate review); Eskridge v. Washington State Board, 357 
U.S. 214 (1958) (denial, absent trial court finding that 
“justice will thereby be promoted,” of free criminal trial 
transcript necessary for adequate appellate review); 
Draper v. Washington, 372 U.S. 487 (1963) (denial, on trial 
court finding that appeal is frivolous, of free criminal trial 
transcript necessary for adequate appellate review); Lane



16

v. Brown, 372 U.S. 477 (1963) (denial, absent public de­
fender’s willingness to prosecute appeal from denial of 
state coram nobis petition, of free transcript of coram 
nobis proceeding necessary to perfect state appellate juris­
diction) ; Douglas v. California, 372 U.S. 353 (1963) (denial, 
absent appellate finding that appointment of counsel on 
appeal would be of value to defendant or the appellate 
court, of free appointment of counsel on appeal as of rights 
from criminal conviction); Burns v. Ohio, 360 U.S. 252 
(1959) (denial, in default of $20.00 filing fee, of motion for 
leave to appeal a felony conviction); Smith v. Bennett, 
365 U.S. 708 (1961) (denial, in default of $4.00 filing fee, 
of leave to file habeas corpus petition); Rinaldi v. Yeager, 
384 U.S. 305 (1966) (indigent sentenced to prison may not 
be forced to pay for appeal transcript out of prison earn­
ings). Swenson v. Bosler, 386 U.S. 258 (1967) (right of a 
convicted indigent to counsel on appeal); Anders v. Cali­
fornia, 386 U.S. 738 (1967) (right of indigent petitioner 
seeking initial review of his conviction to services of an ad­
vocate, rather than an amicus curiae); Roberts v. Lavallee,
----- U.S. ------ , 36 U.S. L. Week 3171 (October 23, 1967)
(right of an indigent to transcript of preliminary hearing).

As the court said in Edwards v. California, 314 U.S. 160 
(1941) poverty, like race and religion is a constitutionally 
neutral factor. The refusal to extend credit to the unbailed 
defendant for pre-trial incarceration and time served pend­
ing appeal results in a de facto creation of two sets of sen­
tences: one for the rich (the amount set by statute) and a 
separate and penalty for the poor (the sentence plus pre­
trial and appellate confinement). Griffin and its progeny 
indicate that the brand of criminal justice a man receives 
no longer depends upon the amount of money he has.



17

Applying this principle to a request by an indigent fed­
eral defendant for release on his own recognizance pend­
ing appeal from conviction, Mr. Justice Douglas first stated 
the question: “Can an indigent be denied freedom, where 
a wealthy man would not, because he does not happen to 
have enough property to pledge for his freedom1?” Bandy 
v. United States, 81 S. Ct. 197, 198 (Douglas, J. 1960). The 
Justice subsequently answered the question in the negative, 
concluding that “no man should be denied release be­
cause of indigence. Instead, under our constitutional 
system, a man is entitled to be released on ‘personal 
recognizance’ where other relevant factors make it reason­
able to believe that he will comply with the orders of the 
Court.” Bandy v. United States, 82 S. Ct. 11, 13 (Douglas,
J. 1961).10 II In our Anglo-American legal tradition the right 
of an accused to pre-trial release is highly regarded. It is 
a right that, if it is to be vindicated, must be vindicated with 
dispatch. The U.S. Supreme Court has held that a delay

10 The first Bandy decision, on application for release on recognizance 
pending certiorari to review affirmance of Bandy’s conviction by a court 
of appeals, was filed by Mr. Justice Douglas on the same day that the 
Supreme Court vacated the court of appeals’ judgment and remanded the 
case to that court for further consideration of the appeal on the merits. 
In light of this development, Justice Douglas denied the application 
without prejudice to its renewal in the court of appeals. 81 S. Ct. 197, 
198. The court of appeals subsequently denied such an application, and 
in the second Bandy opinion, notwithstanding his view that the denial was 
unconstitutional, Justice Douglas again refused release on recognizance, 
on the theory that—a petition for certiorari seeking review of the court 
of appeals’ adverse determination having been filed—an individual Justice 
ought not anticipate and “moot” the issue before the full court. Ap­
parently, the paper filed by Bandy which Mr. Justice Douglas believed 
to be a petition for certiorari was rather a petition for leave to file an 
original petition for habeas corpus. The Court subsequently denied that 
petition, with Mr. Justice Douglas dissenting on the ground of his Bandy
II  opinion. Bandy v. United States, 369 U.S. 815 (1962). Although the 
Court, in denying the relief sought, cannot but have been aware of the 
issue framed by Justice Douglas, it is impossible to say whether it con­
sidered and rejected the Justice’s views or whether it denied the petition 
on some available procedural ground.



18

by state courts more than five days in reaching a peti­
tioner’s claim was sufficient to justify a federal court in 
entertaining the claim for judicial relief. In re Shuttles- 
worth, 369 U.S. 35 (1962). This circuit has, at least in one 
instance, reduced that time to 3 days. Dressner v. Stout- 
amir e, 5th Cir. No. 21802, decided August 5, 1964.

The Eighth Amendment to the Constitution states as fol­
lows :

Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted.

It is our position that the Amendment as incorporated 
by the Fourteenth implies a constitutional right to pre-trial 
release. Given the text and origin of the Amendment this 
is a necessary conclusion. No other construction is as con­
sistent with its organic logic, language and history.

All discussion of the meaning of the Eighth Amendment 
bail clause must begin with the ambiguity of its text. The 
many difficulties of construction do not detract, however, 
from the inevitable conclusion that the purpose of the 
Amendment was to grant a broad right to pre-trial re­
lease.

It has been noted by the outstanding contemporary com­
mentator on the bail institution Professor Caleb Foote that 
there are three possible interpretations of the language of 
the excessive bail clause of the Eighth Amendment if it 
is considered as a text apart from its historical context.11

First, it might be urged that the Eighth Amendment 
means bail cannot be demanded in an excessive sum in cases 
made bailable by other provisions of law but that the 11

11 Foote, “The Coming Crisis in Bail,” 113 U.Pa. L. Rev. 959, Part I I  
1125 (1965) at 965-989, (hereinafter cited as Crisis in Bail).



19

clause of itself imports no right to pre-trial release. While 
such a reading of the clause is logically possible it presents 
the absurdity of a constitutional provision being merely 
auxiliary to statutory law. This notion is contrary to the 
whole concept of a Bill of Rights restricting a legislature, 
for the right to bail could be denied by Congress and the 
Amendment rendered meaningless for want of application. 
Such a construction—under which the Eighth Amendment 
would be nugatory in the absence of congressional or state 
legislation establishing the scope of the right to bail—runs 
against the first principles of a written constitution, for 
“it cannot be presumed that any clause in the Constitution 
is intended to be without effect” Mcirbury v. Madison, 1 
Cranch 137, 174 (1803). Indeed, that construction would 
be inconsistent not only with the remainder of the Bill of 
Rights but with the remainder of the Eighth Amendment, 
for its prohibition against excessive fines and cruel and un­
usual punishment have been incorporated in the Fourteenth 
Amendment and applied to protect against legislative ac­
tion. Robinson v. California, 370 U.S. 660 (1962).

A second possible construction would be that bail can­
not be demanded in an excessive amount in cases in which 
a court sets bail, but, in the absence of other statutory or 
constitutional restrictions, the court retains the discretion 
to deny bail altogether. Such a construction would also 
render the Eighth Amendment excessive bail clause some­
thing unique and callously futile in our constitutional sys­
tem:

By making a clause say to the bail setting court that it 
may not do indirectly what it is however permitted to 
do directly—deny relief—the clause is reduced to the 
stature of little more than a pious platitude. (Crisis in 
Bail at 970)



20

A great deal of historical data supports the conclusion 
that the third possible construction—that the excessive bail 
clause created a federal constitutional right to pre-trial re­
lease—is far more likely than either of the two dryly logical 
alternatives suggested above. In 1789 while the excessive 
bail clause was being considered as one of the proposed 
amendments to the Constitution, the first Congress passed 
Section 33 of the Judiciary Act extending an absolute right 
to bail in all noncapital federal criminal cases. The avail­
able materials contain “nothing to indicate that anyone in 
Congress recognized the anomaly of advancing the basic 
right governing pre-trial practice in the form of a statute 
while enshrining the subsidiary protection insuring fair 
implementation of that right in the Constitution itself.” 12 
One is left to conclude that the right to bail was so funda­
mental to the framers that they never questioned that the 
Eighth Amendment had granted it. This conclusion is re­
inforced by the passage in 1787 of the Northwest Ordinance 
which stated:

. . .  all persons shall be bailable unless for capital of­
fenses where the proof shall be evident or the presump­
tion great; all fines shall be moderate; and no cruel or 
unusual punishments shall be inflicted. . . . (An Ordi­
nance for the government of the Territory of the 
United States, Northwest of the River Ohio, July 13, 
1787, Article ii).

No reason suggests itself why the inhabitants of the North­
west Territory should have been given by their organic 
charter greater rights in this regard than citizens of the 
United States within its organic bounds. The history of 
the language which became the Eighth Amendment also 
supports this conclusion. See Crisis in Bail at pp. 965-986.

12 Crisis in Bail at 972.



21

As relief against abusive pre-trial imprisonment was 
one of the fundamental liberties of Anglo-American tradi­
tion which the Bill of Rights was drafted to protect, it 
follows that pre-trial release may not be denied on the 
basis of poverty alone. Petitioner submits it follows that 
the only sensible construction of the bail clause of the 
Eighth Amendment is one which will secure a right to 
release unencumbered by a financial requirement.

That the system of conditioning pre-trial release on 
financial bail is a long-suffered discrimination running back 
to the days of medieval unconcern for the impoverished, 
does not insulate it from condemnation under the Four­
teenth Amendment. The argument from tradition:

reflects a misconception of the function of the Consti­
tution and this Court’s obligation in interpreting it. 
The Constitution of the United States must be read as 
embodying general principles meant to govern society 
and the institutions of government as they evolve 
through time. It is therefore this Court’s function to 
apply the Constitution as a living document to the legal 
cases and controversies of contemporary society. White 
v. Crook, 251 F. Supp. 401, 408 (MI). Ala. 1966) (three- 
judge court).

Recently, the United States Supreme Court struck down 
Virginia’s time-honored poll tax of $1.50 as a prerequisite 
to voting in state elections on the ground that “Voter quali­
fications have no relation to wealth nor to paying or not 
paying this or any other tax” Harper v. Virginia State 
Board of Elections, 383 U.S. 663 (1966). In finding wealth 
a “capricious” and “irrelevant factor” the Court addressed 
itself to the contention that the poll tax was “an old familiar



22

form of taxation” and rejected history as sufficient to sup­
port discrimination on the basis of property:

In determining what lines are unconstitutionally dis­
criminatory, we have never been confined to historic 
notions of equality, any more than we have restricted 
due process to a fixed catalogue of what was at a given 
time deemed to be the limit of fundamental rights. 
See Malloy v. Hogan, 378 U.S. 1, 5-6. Notions of what 
constitutes equal treatment for purposes of the Equal 
Protection Clause do change (emphasis in original). 
Id. at 669.

Thus notwithstanding ancient abuses against the poor, 
the Constitution today decrees that the financial position of 
one charged with crime shall have no place in determining 
the character of treatment he receives from the state. This 
is especially true with respect to pre-trial liberty of an 
accused for: “the function of bail is limited, [and] the 
fixing of bail for any individual defendant must be based 
upon standards relevant to the purpose of assuring the 
presence of that defendant.” Stack v. Boyle, 342 U.S. 1, 5 
(1951) (emphasis added). Fixing bail for petitioner in an 
amount which he cannot pay because of poverty is not 
basing hail upon “standards relevant” to the purpose of 
assuring his presence. It is to deny him release and continue 
his incarceration until trial in violation of his right to bail 
under the Constitution and laws of the State and the 
United States. Such a result converts the bail system into 
a device which detains as many poor persons as possible 
rather than “a procedure the purpose of which is to enable 
them to stay out of jail until a trial has found them guilty” 
Stack v. Boyle, supra, cf. Bail Beform Act of 1966, 18 U.S.C. 
3041, 3141-3143, 3146-3152, 3568. It is an invidious dis­
crimination, and denies petitioner in the most obvious



23

and offensive way his constitutional right to equal protec­
tion of the law.

In order to avoid the constitutional infirmities and in­
vidious discrimination that would occur from different ju­
dicial treatment of the poor as a class, the courts should 
afford the defendant not bailed because of his indigency 
credit on any sentence ultimately imposed. See, Yates v. 
United States, 356 U.S. 363 (1958) ; Short v. United States, 
344 F.2d 550, 554-556 (D.C. Cir. 1965); cf. Patton v. North 
Carolina, 381 F.2d 636 (4th Cir. 1967).

B. Failure to Give Credit to the Noil-Bailed D efendant V iolates 
D ue Process B ecause Pre-Trial Incarceration is as Much 
P unishm ent as C onfinem ent Under Sentence.

That pre-trial detention imposes punishment is obvious. 
Stack, supra, at 4. The particular label that our legal sys­
tem attaches to incarceration does not make it anything 
less than incarceration. See, In Re Gault, 387 U.S. 1 (1967). 
A jailed accused loses his liberty, the most precious of 
rights, as completely as does any convict. He is subjected 
to severance of family relations, loss of pay and often 
loss of employment. The conditions in available pre-trial 
detention facilities are normally inhumane. The accused 
is subjected to poor food and housing, overcrowding, in­
adequate recreational and other facilities, essential rudi­
mentary comfort and decency. “[A]t the time an accused 
is convicted and sentenced to imprisonment, his standard 
of living is almost certain to rise.” 13 As the National 
Conference on Bail and Criminal Justice put it:

13 Crisis in Bail, at 1144. Other common restrictions of the detention 
jail are censorship of mail, restrictions on newspapers and periodicals, 
a frequently total prohibition on the use of the telephone, inadequate 
facilities for confidential conversations with lawyers and others, including 
restricted visiting privileges only for close relatives and restriction of 
visits to times which are particularly inconvenient to members of the



24

“His home may be disrupted, his family humiliated, his 
relations with wife and children unalterably damaged. 
The man who goes to jail for failure to make bond 
is treated by almost every jurisdiction much like the 
convicted criminal serving a sentence” Bail in the 
United States: 1964, 43 (Nat’l Conference on Bail and 
Criminal Justice).

To contend that the in custody accused has not been sanc­
tioned by the state during his period of pre-trial incarcera­
tion solely because sentence has not been imposed “is to 
take . . . years of a man’s life” and then “set everything 
right by refusing to recognize that it did happen.” Patton 
v. North Carolina, supra at 639.

Confinement, whether or not under a valid sentence, has 
long been recognized in Anglo-American jurisprudence as 
an imposition of punishment by the state. Though a trial 
and conviction may be voided on appeal “the time illegally 
exacted by the unconstitutional sentence is an indisputable 
fact.” Incarceration, prior to a judicial determination of 
guilt is clearly no less onerous. In Yates v. United States, 
the court vacated a one year sentence for contempt saying 
“the seven months petitioner has already spent in jail [on 
excessive bail] is deemed punishment for the contempt cita­
tion.” The court remanded the case to the District Court 
with directions “to reduce the sentence to time petitioner 
has already been confined in the course of these proceed­
ings.”

working class. Foote concludes that “these limitations are as unnecessary 
to the legitimate purpose of detention—security—as is the line up and 
in their contempt for man’s dignity and their probable tendency to coerce 
guilty pleas far more pernicious as a contamination of the values for 
which due process stands. Whether or not such restrictions are delib­
erately intended to punish and humiliate, they certainly have that effect 
and some judges use pre-trial detention explicitly for punitive purposes. 
For example, to give the accused ‘a taste of jail.’ ” Id. at 1145.



25

The psychological make-up of ail in-custody accused may 
be affected by “jailhouse depression.” 14 Feelings of anx­
iety, depression, hostility and bitterness are by-products of 
pre-trial confinement. That infliction of mental distress is 
an aspect of punishment cannot be denied. The mental 
harm which frequently accompanies pre-trial incarceration 
is a result of a regime where access to newspapers and 
periodicals is restricted, mail is censored the use of the 
telephone may be prohibited and visiting hours and vis­
itors restricted.15

A frequent adjunct to detention is forcing the accused to 
participate in line-ups. Although a bailed accused must 
consent to participation in a line-up the in-custody accused 
has no choice. Line-ups are a reasonably justifiable aspect 
of the State’s custody resulting from his arrest. Wade v. 
United States, 388 U.S. 218, 222 (1967). Not only is the 
accused forced to stand in the line-up, he is forced to speak 
whatever words the prison authorities insist on. Id. Thus 
although the bailed accused, cannot be made to speak in 
court, the indigent accused, simply by virtue of pre-trial 
custody “may be jailed indefinitely until he is willing to 
say for an identifying audience, whatever [he is told] wTas 
said in the course of the commission of the crime.” Wade v. 
United States, supra at 260. (Justice Fortas, with Chief 
Justice Warren and Justice Douglas concurring).

Although items may be seized from a bailed accused only 
upon the presentment of a search warrant issued upon 
probable cause, the in-custody accused is “subjected to re­

14 See Crisis in Bail at 1137.
15 See Akamine v. Murphy, 108 Cal. App., 2d, 294, 238 P. 2d 606 (1951) 

upholding refusal of jail to permit husband held pending trial to be 
visited by his wife recently released from same jail because of jail rule 
prohibiting inmate from visiting any other inmate within thirty days 
of release.



26

peated searches” “as an incident to the custodial process.” 
Pre-trial incarceration frequently subjects the in-custody 
accused to searches and seizures which would be violative 
of a bailed accused Fourth Amendment rights.

The at-large defendant is available on a twenty four hour 
basis to consult and participate fully with counsel in prep­
aration for trial. By comparison the in-custody accused 
must meet with counsel “in woefully inadequate [and not 
infrequently ‘bugged’] visitors facilities.” In Lcinsa v. 
New York, 370 U.S. 139 (1962) where the state conceded it 
had used electronic devices to eavesdrop on the conversa­
tions of a prison inmate with his visitors, the Chief Justice 
noted:

“It has been reported that a New York trial judge found 
it necessary to release a prisoner without bail so that 
he would be able to consult with his attorney, the 
judge not being able to feel confident . . . that there 
was any jail in the State where the prisoner and his 
lawyers could be secure against electronic eavesdrop­
ping . . .  Id. at 149 (Warren, C.J. Concurring).

The in-custody accused cannot without counsel locate and 
persuade witnesses to testify, nor can he assist in tracking 
down evidentiary leads. An indigent defendant who lacks 
the resources to finance a pre-trial investigation by others 
and who cannot, because incarcerated, conduct such investi­
gation himself is seriously disadvantaged. If the resources 
available to public authorities for pre-trial investigation on 
behalf of indigent defendants are inadequate, the defendant 
who has his liberty during the pre-trial process is in a 
significantly advantageous position relative to the accused 
who is incarcerated.

Unless a defendant is given credit for the period of his 
presentence incarceration upon subsequent conviction and



27

sentencing he will have undergone punishment without trial 
and unrelated to a finding of guilt. Such a result is repug­
nant to due process and requires that sentencing courts con­
sider the period of time a convicted person has already 
spent in detention. See, Patton v. North Carolina, 381 F.2d 
636 (4th Cir. 1967).

C. T o O bviate Q uestions o f  W hether the C onstitutionally R e­
quired Sentence Credit has B een  Given, Courts Should  Be  
R equired to M ake Clear U pon Sentencing That P resentence  
Incarceration Hag B een  T aken  Into Account.

Though the Stapf and Dunn decisions are in agreement 
that sentence credit is constitutionally required, the opinion 
in Stapf indicates that in all those instances where it is 
mathematically possible that the sentencing court took the 
period of presentence incarceration into consideration upon 
imposing sentence it should be assumed that it did. Stapf 
v. United States, supra, at 330. On the other hand, the 
Fourth Circuit in Dunn has said that where the sentence is 
less than the maximum the District Judges should indicate 
at time of sentence whether they had taken presentence de­
tention into consideration. Dunn v. United States, supra, at 
194.

In view of the fundamental rights here involved, the 
Fourth Circuit view ought to he the standard. Rights to 
liberty and to equal treatment should not be left to mere 
surmise. Whenever the State exacts criminal sanctions, 
the nature of the penalty should be as clear and explicit as 
possible. There is no place in our system of justice for 
vagueness in the sentencing process.

“Sentences in criminal cases should reveal with fair 
certainty the intent of the Court and exclude any seri-



28

ons misapprehensions by those who must execute 
them.”

United States v. Daugherty, 269 U.S. 360, 363 
(1926).

Days, weeks, and months of a man’s life are too precious to 
be hypothesized away. Cf. Booker v. Groat, 153 N.W.2d 178 
(Mich. Ct. Appls. 1967). As an element of due process and 
fundamental fairness a convicted man should be fully ap­
prised of the nature of his sentence. To achieve that end, 
amici submit that this court should follow the Fourth 
Circuit and reject any conclusive presumption that a sen­
tencing judge has credited pre-trial time served.

CONCLUSION

Therefore, for all the foregoing reasons, we request the 
Court to reverse the judgment of the Court below and re­
mand the case to it with instructions to credit appellant 
with the presentence time served in custody.

Bespeetfully submitted,

J ack  G reenberg 
M ich a el  M eltsner  
H aywood B u rk s

10 Columbus Circle
New York, New York 10019

Attorneys for the N.A.A.C.P. 
Legal Defense and Educational 
Fund, Inc., and the National Office 
For the Rights of the Indigent



29

Certificate of Service

I hereby certify that on December 22, 1967, I served a 
copy of the foregoing Brief Amicus Curiae on Mr. Louis 
Joseph, PMB 89652, Atlanta, Georgia 30315, and Louis C. 
LaCour, Esq., United States Attorney Eastern District of 
Louisiana, 500 St. Louis Street, New Orleans, Louisiana 
70130 by pre-paid, First Class mail.

Attorney for Amici Curiae



APPENDIX



la

APPENDIX I

(Sentence Credit Statute)

Title 18 U.S.C. §3568 at time of appellant’s sentencing 
read as follows:

§3568. Effective date of sentence; credit for time in 
custody prior to the imposition of sentence.

The sentence of imprisonment of any person con­
victed of an offense in a court of the United States 
shall commence to run from the date on which such 
person is received at the penitentiary, reformatory, 
or jail for service of said sentence: Provided, That 
the Attorney General shall give any such person 
credit toward service of his sentence for any days 
spent in custody prior to the imposition of sentence 
by the sentencing court for want of bail set for the 
offense under which sentence was imposed where 
the statute requires the imposition of a minimum 
mandatory sentence.

If any such person shall be committed to a jail 
or other place of detention to await transportation 
to the place at which his sentence is to be served, 
his sentence shall commence to run from the date 
on which he is received at such jail or other place of 
detention.

No sentence shall prescribe any other method of 
computing the term. (June 25, 1948, eh. 645, 62 
Stat. 838; Sept. 2, 1960, Pub. L. 86-691, §l(a), 74 
Stat. 738.)



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