United States v. McGrath Brief Amicus Curiae

    I n  the

t o u r t  n f  tijt
OcTOBBE T eem , 1969 

No. 1386 Misc.

U nited S tates ex rel. L umumba A bdul S hakue, et al..
Petitioners,

V.

C O M M IS S IO N E E  O P C o E E E C T IO N S  G e OEGE F. M c G e A T H ,

Respondent.

O N  P E T IT IO N  PO E  W R IT  OP C EETIO EA R I TO T H E  

U N IT E D  STA TES C O U ET OP A PPEA LS PO E  T H E  SECOND C IE O U IT

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

J ack Greenberg 
M ichael Meltsnek 
E lizabeth B. D uB ois 

10 Columbus Circle 
New York, New York 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Inc.



I N D E X

PAGE

Interest of the Amicus Curiae....................................... 1

Questions Presented .............................................   3

Statement of the Case.................................................... 4
Summary ....................................................... ......... 4

E basons P oe Granting T h e  W rit ................................ 11

Introduction ...................................................................... 11
(1) Proceedings in The District Court.................  13
(2) Proceedings in The Court of Appeals ............ 21

I Certiorari Should Be Granted to Decide Whether 
the Fourteenth Amendment Makes Applicable to 
the States the Excessive Bail Clause of the Eighth 
Amendment and Whether That Clause Grants a 
Eight to Pre-Trial Eelease to the Eich Which 
Cannot Be Foreclosed to the P oo r.....................   26

II Certiorari Should Be Granted to Determine 
Whether, Irrespective of Any Eight to Pre-Trial 
Eelease, Petitioners’ Incarceration Prior to Trial, 
Solety on Account of Their Poverty, Denies Them 
Equal Protection of the Laws in Violation of the 
Fourteenth Amendment ........................    28

III Certiorari Should Be Granted to Determine 
Whether Petitioners’ Incarceration Prior to Trial 
Denies Them Due Process of the Law in Viola­
tion of the Fourteenth Amendment..................... 30



11

PAGE

rV Certiorari Should Be Granted to Determine 
Whether the Dse of Bail to Detain Petitioners 
Prior to Trial Because of Their Alleged Dan- 
geronsness Violates Their Rights Under the 
Eighth and Fourteenth Amendments to the 
United States Constitution...................................  31

Conclusion .................................................................... 32

T able of Cases

Aguilar v. Texas, 378 U.S. 108 (1964) .........................  26
Anders v. California, 386 U.S. 738 (1967) ................. 29
Avery v. Alabama, 308 U.S. 444 (1939) ......... ...........  24

Balter v. Carr, 369 U.S. 186 (1962) ........... ...... ..........  15
Brown v. Board of Education, 347 U.S. 483 (1954), 349

U.S. 294 (1955) ...................................................... 16
Burns v. Ohio, 360 U.S. 252 (1959) ............................  29

Douglas v. California, 372 U.S. 353 (1962) .......... ...... 29
Draper v. Washington, 372 U.S. 487 (1963) ................. 29
Duncan v. Louisicma, 391 U.S. 145 (1968) .....................  26

Eshridge v. Washington State Board, 357 U.S. 214 
(1958) .........................................................................  28

Gardner v. California, 393 U.S. 367 (1969) ................. 29
Gideon v. Wainwright, 372 U.S. 335 (1963) ..........14,16, 26
Gonzalez v. Warden, 21 N.Y. 2d 18, 233 N.E. 2d 265,

cert, denied, 390 U.S. 973 (1968) ..........................2,7,9,16
Griffin v. Illinois, 351 U.S. 12 (1956) .......... ...............14, 28

Harper v. Virginia Bd. of Elections, 383 U.S. 663 
(1966) ....................................................................... 14,15



Ill

PAGE

Ker V. California, 374 U.S. 230 (1963) ..... ........ .........  26
Klopfer V.  North Carolina, 386 U.S. 213 (1967) ...... 26, 27

Lane v. Brown, 372 U.S. 477 (1963) ....... .............. ......  29
Long V. District Court of Iowa, 385 U.S. 192 (1966) .... 29

MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960) ......... . 24
Malloy V. Hogan, 378 U.S. 1 (1964) ............ .......... .....15, 26
Mapp V. Ohio, 367 U.S. 643 (1961) ........ .......................  26

Pennsylvania eco rel. Tucker v. Hendrick, 257 A.2d 656
(Pa. Super. Court 1969) ..........................................  22

People ex rel. Tahor v. McGrath, 303 N.Y. Supp. 2d
665 (Ct. of Appeals, 1969) ......... ........... ..... .......... 7

Pointer v. Texas, 380 U.S. 400 (1965) ......................26,27
Powell V. Alabama, 287 U.S. 45 (1932) ............... ......... 24

Reece v. Georgia, 350 U.S. 85 (1956) ........... .............  24
Rincald v. Yeager, 384 U.S. 305 (1966) ..............    29
Roberts v. Lavallee, 389 U.S. 40 (1967) ..................... 29
Robinson v. California, 370 U.S. 660 (1962) ..............26, 27

Simmons v. United States, 390 U.S. 377 (1968) ..........  24
Smith V. Bennett, 365 U.S. 708 (1961) __    29
Stack V. Boyle, 342 U.S. 1 (1951) ..................3,8,20,22,32
Swenson v. Bosler, 386 U.S. 258 (1967) .....................  29

United States v. Jackson, 390 U.S. 570 (1968) ..........  24

Washington v. Texas, 388 U.S. 14 (1967) .................. 26
White V. Crook, 251 F. Supp. 401 (M.D. Ala. 1966) .... 15
White V. Ragen, 324 U.S. 760 (1945) ........................  24
Williamson v. United States, 184 F.2d 280 (2nd Cir. 

1950) (Jackson, J., sitting as Circuit Justice) ......  22



IV

Other A tjthoeities

PAGE

A.B.A. Project on Minimum Standards Relating to 
Criminal Justice, Standards Relating to Pre-Trial 
Release §1 (Tentative Draft, March 1968) .............. 22

City Correction Dept., Survey of New York City De­
tention Centers in May, 1969 .......................... ......... 19

Foote, The Coming Constitutional Crisis in Rail, 113 
U. P a. L. R ev. 959, 1125 (1965) ................. 12,14,22,25

Foote, A Study of the Administration of Rail in New 
York City, 106 U. P a. L. R ev. 693 (1958) ............. 21

National Conference on Bail and Criminal Justice, 
Proceedings and Interim Report (1965) .... .....11,12,14

National Conference on Law and Poverty, Conference 
Proceedings (1965) ...................................................  11

New York Temporary Commission on Revision of the 
Penal Law and Criminal Code, Proposed New York 
Criminal Procedure Law (1967) .............................  19

The New York Times, Sept. 2, 1969, p. 1, col. 5 ..........  19

The New York Times, Aug. 8, 1969, p. 1, col. 1 ..........  19

Note, The Right to a Speedy Trial, 57 Colum. L. Rev.
846 (1957) .....................................    24

Proceedings of the Conference on Rail and Indigency,
1965 U. III. L. Forum, ...... -..............-......... ...... 11



V

S tatutes and Constitutional P rovisions

PAGE

18 P.S.C. §3146 (Bail Reform Act of 1966) ..............17,19

28 U.S.C. §2254(b) .......................................................  8

N.Y. Code Crim. Procedure §553 (1958) ..................... 15

N.Y. Const. Art. 1, §5 ....... ..... .................................. . 15



I n  the

C o u rt o f tljr Mnttrti ^ tu trs
October T eem , 1969 

No. 1386 Misc.

U nited S tates ex rel. L umetmba A bdul S hakue, et al.,

Petitioners,
V.

Commissioner oe Corrections George F. M cGrath,

Respondent.

ON petition eor writ oe certiorari to the 
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Amicus submits this brief, in support of the petition for 
writ of certiorari filed herein, pursuant to Rule 42 of the 
Rules of this Court, the parties having given their written 
consent by letters which have been deposited with the Clerk. 
Amicus joins petitioners in praying that a writ of certiorari 
issue to review the judgment of the United States Court of 
Appeals for the Second Circuit entered on October 24,1969.

Interest of the Amicus Curiae

The NAACP Legal Defense and Educational Fund, Inc., 
is a non-profit corporation, incorporated under the laws of 
the State of New York in 1939. It was formed to assist



Negroes to secure their constitutional rights by the prose­
cution of lawsuits, and its charter declares that its pur­
poses include rendering legal aid gratuitously to Negroes 
suffering injustice by reason of race who are unable, on 
account of poverty, to employ legal counsel on their own 
behalf. The charter was approved by a New York court, 
authorizing the organization to serve as a legal aid society. 
The NAACP Legal Defense and Educational Fund, Inc., 
is independent of other organizations and is supported by 
contributions from the public. For many years its attor­
neys have represented parties and participated as amicus 
curiae in this Court and the lower federal courts, in mat­
ters resulting in decisions that have had a profoundly 
reformative effect upon the administration of criminal 
justice.

A central purpose of the Fund is the legal eradication of 
practices in our society that bear with discriminatory 
harshness upon Negroes and upon the poor, deprived, and 
friendless, who too often are Negroes. In order more effec­
tively to achieve this purpose the Fund in 1965 estab­
lished as a separate corporation the National Office for 
the Eights of the Indigent (NOEI). This organization, 
whose income is provided initially by a grant from the 
Ford Foundation, has among its objectives the provision 
of legal representation to the poor in individual cases and 
the presentation to the courts of arguments for changes 
and reformation in legal doctrines which unjustly affect 
the poor. Pursuant to these aims Legal Defense Fund 
attorneys have handled many eases involving challenge to 
the present operation of the money bail system, including 
the leading New York case of Gonzales v. Warden, 21 N.Y. 
2d 18, 233 N.E. 2d 265, cert, denied, 390 U.S. 973 (1968), 
and have prepared materials for, and presented lectures 
to, attorneys who represent the poor, documenting the 
manner in which the operation of the money bail system.



in New York City and elsewhere, arbitrarily discriminates 
against Negroes and the poor. The Fund has also been 
concerned throughout its history with the way in which 
the legal system is pei’verted to discriminate against and 
suppress persons and groups engaged in challenging 
racism and injustice in America.

Petitioners in the instant case, all but one of whom 
are members of the unpopular and unorthodox Black 
Panther Party for Self-Defense, have been held in jail 
for over eight months solely because of their inability to 
make bail. In the proceedings below in the United States 
District Court,^ Amicus presented the argument, discussed 
in that court’s opinion, that New York State’s money bail 
system denies petitioners’ Eighth and Fourteenth Amend­
ment rights in that it arbitrarily and irrationally confines 
them before trial solely because of their poverty. 
Amicus believes that this case also represents a particu­
larly blatant example of the perversion of the money bail 
system to serve the purposes of preventive detention of 
the allegedly dangerous, in clear violation of this Court’s 
ruling in Stack v. Boyle, 342 U.S. 1 (1951), that bail is 
excessive if set in an amount greater than necessary to 
ensure appearance at trial.

Questions Presented
1. Whether the Excessive Bail Clause of the Eighth 

Amendment applies to the States by force of the Four­
teenth Amendment, and embodies a right to pre-trial re-

Amicus both filed a brief and participated in oral argument in 
the proceedings before eTudge Palmieri in the United States District 
Court. On appeal to the United States Court of Appeals for the 
Second Circuit, amicus had no opportunity to participate since the 
Court of Appeals denied petitioners’ applications on two separate 
occasions without providing for formal briefing and argument. On 
petitioners’ subsequent habeas application to Judge Marvin E. 
Frankel in the District Court, amicus again filed a brief and 
participated in oral argument.



lease wliicli cannot be denied to those who are unable to 
afford money bail?

2. Whether New York can, consistently with the Equal 
Protection Clause of the Fourteenth Amendment, in­
carcerate those who cannot afford bail and release those 
who can?

3. Whether the pre-trial incarceration of petitioners vio­
lates the Due Process Clause of the Fourteenth Amend­
ment?

4. Whether the use of bail to detain petitioners because 
of their alleged danger to the community violates their 
rights under the Excessive Bail Clause of the Eighth 
Amendment and the Due Process and Equal Protection 
Clauses of the Fourteenth Amendment?

Statement of the Case
Summary

The 14 petitioners were indicted on April 2, 1969 on a 12- 
count indictment, charging 21 persons. They were immedi­
ately arrested and have now been in custody because of their 
inability to make bail for over eight months. After ex­
hausting their state remedies, petitioners applied to a fed­
eral court for habeas corpus challenging their pre-trial 
detention on constitutional grounds. The United States 
District Court for the Southern District denied relief on 
August 26, 1969. On September 15, 1969 the Second Circuit 
Court of Appeals summarily affirmed the order of the court 
below and denied petitioners’ application for bail without 
prejudice to renewal if within 30 days no trial date had 
been set. Since no trial date was set within the 30 days, 
petitioners renewed their application to the Court of Ap­
peals. While this application was pending, the State Su­



preme Court set the case down for trial for November 17, 
1969. The Second Circuit Court of Appeals subsequently 
denied petitioners’ renewal application, noting that a trial 
date had now been set. On November 17, however, peti­
tioners were served with a copy of a new 30-count indict­
ment, superseding the original indictment. The State 
Court scheduled a pre-trial motion hearing for Decem­
ber 18, 1969. No trial date has yet been set.

# # # * *
The original twelve-count indictment, handed down April 

2, 1969, charged twenty-one persons with attempted murder, 
arson and attempted arson, possession of weapons and 
conspiracy. Tw-elve of the defendants were arrested on 
April 2, 1969; one (Lonnie Epps) surrendered himself 
April 3 and one (Lee Berry) was arrested April 5, 1969. 
With the exception of Lonnie Epps, who has been released 
on $10,000 bail, all those arrested have been incarcerated 
since that time. The bail presently set for the defendants 
now in custody—petitioners in this case—is as follows ;

Afeni Shakur........................ $ 100,000.
Joan Bird ...........................   100,000.
Curtis Powell ......................  100,000.
Robert Collier ......................   100,000.
Richard Moore ................    100,000.
Lee Berry ............................  100,000.
Alex McKiever ..................... 100,000.
Lumumba Shakur.................  100,000.
Ali Bey Hassan.....................  100,000.
Walter Johnson ......     100,000.
Clark Squires ........    50,000.
Michael Tabor ......   50,000.
Eddie Josephs .........  25,000.

At the April 2, 1969 arraignments of the twelve defend­
ants arrested that day, the district attorney argued, in the



course of the arraig-nment of the first defendant to have 
bail set, that “it would be a menace to the community and 
a menace to society to admit this man to hail, and there­
fore we request that no bail be set.” When Justice Marks 
noted that the petitioners were “entitled to some bail,” 
the district attorney stated: “if Your Honor would have 
a figure to set bail, I would suggest $100,000.” (Arraign­
ment, April 2, 1969, New York County Supreme Court, 
Tr. 11). The arraignment of the second defendant brought 
the same argument of dangerousness followed by another 
$100,000 bail. At that point Justice Marks announced that 
all twelve of the defendants would be held on $100,000 
bail subject to defense counsel’s right to apply for a re­
duction. Thus the district attorney presented no evidence 
or argument regarding risk of flight as to any of the 
twelve defendants, and no evidence or argument of any 
kind directed to bail as to ten of the twelve.

On April 3, 1969, Justice Marks, again without any evi­
dence regarding risk of flight, set $100,000 bail for peti­
tioner Lonnie Epps, a 17-year-old high school student with 
no prior record who had voluntarily surrendered himself. 
(Arraignment, April 3, 1969, New York County Supreme 
Court.)

On April 11, 1969, petitioners sought a reduction of bail 
before Justice Marks. Petitioners, who were being held in 
seven different jails in four different boroughs, were denied 
their requests to appear and to have an evidentiary hear­
ing on the bail issue.^ The district attorney again presented 
no evidence or argument regarding risk of flight, but in­
stead discussed what he alleged was a pipe bomb found in 
the possession of some of the defendants. All defendants’

 ̂Defense counsel had been denied any opportunity to consult 
with petitioners prior to or immediately following the April 2 ar­
raignments for purposes of securing information relevant to bail. 
(Arraignment, April 2, 1969, New York County Supreme Court)



bails were maintained at the original level of $100,000, 
with the exception of Eddie Josephs and Lonnie Epps 
(both high school students), whose bails were reduced to 
$25,000 and $10,000 respectively. (Decision of Justice 
Marks, April 14, 1969, p. 3.)

The constitutionality of these bails was subsequently 
tested in the various state courts. Only petitioners Tabor 
and Squires received reductions (to $50,000 each). Their 
place of detention happened to be the Borough of Queens, 
and the Queens County judge w'ho heard their habeas 
corpus motions felt compelled to reduce their bails solely 
because of a precedent he considered binding, not because 
of any distinction between their cases and the cases of 
the other petitioners. (Habeas corpus hearing. May 1, 
1969, Queens County Supreme Court.)

On appeal, the New York Court of Appeals affirmed the 
bails of Tabor and Squires, holding that “the classic tests 
for fixing or denying bail” had been met, and citing Gon­
zales V. Warden, 21 N.Y. 2d 18, 233 N.E. 2d 265, cert, de­
nied, 390 IJ.S. 973 (1968) {People ex rel. Tabor v. McGrath, 
303 N.Y. Supp. 2d 665 (June 11, 1969)).

Petitioners’ application for writ of habeas corpus in the 
United States District Court for the Southern District was 
denied by Judge Edmund L. Palmieri in an opinion filed 
August 26, 1969, reported at 303 F. Supp. 303 (1963).’’ 
Judge Palmieri found that petitioners Tabor and Squires 
had exhausted state remedies since the New York Court 
of Appeals had ruled on their eases; and that the other

 ̂Petitioners had filed one previous application for writ of habeas 
corpus in that court, denied by Judge Palmieri in an opinion dated 
June 19, 1969, which found petitioners’ various claims—which 
included a bail claim—premature at that time. United States ex 
rel. Shakur v. Commissioner of Corrections, 303 F. Supp 299 
(S.D.N.Y. 1969).



8

petitioners nmst “be deemed to have exhausted their state 
remedies” for purposes of 28 U.S.C. § 2254(b) (303 F. Supp. 
at 305).

Judge Palmieri rejected petitioners’ claims on the merits 
on the following grounds:

(1) New York’s traditional bail standards are con­
sistent with the principles enunciated by the Supreme 
Court in Stack v. Boyle, 342 U.S. 1 (1951) ;

(2) federal courts can review state bail matters only 
to determine constitutional violations, and the denial 
of pre-trial release is not in itself unconstitutional;

(3) the high bails had not been shown to be arbitrary 
or discriminatory (and thereby unconstitutional) since 
the facts regarding the petitioners “indicate that the 
actions of the New York courts in fixing bail. . . was an 
attempt to secure from each petitioner ‘adequate as­
surance that he [would] stand trial’ . . . quoting from 
Stack V. Boyle, supra, 342 U.S. at 4 (1951) (303 F. Supp. 
at 307)

(4) inadequate cooperation by petitioners in provid­
ing bail information—the denial by the state court of 
petitioners’ demand for an evidentiary hearing on the 
bail issue was held an entirely “discretionary decision;”

(5) and finally, Amicus’ attack on the money bail 
system on Equal Protection grounds was rejected by 
the court on the grounds that, whatever “disadvantage

 ̂The only facts relied on by the court were the seriousness of 
the crimes charged; possession of contraband by some of peti­
tioners when arrested; prior criminal records of some of peti­
tioners ; and the flight of five alleged co-conspirators never arrested 
—no mention was made of the fact that the only one of the defen­
dants released on bail had not chosen to flee.



9

for those who are economically underprivileged” the 
money bail system may create, “it is so thoroughly a 
part of our traditional procedures in criminal cases 
that nothing short of legislation can appropriately re­
form it,” citing Gonzales v. Warden, 21 iSr.Y.2d 18, 
233 N.E. 2d 265, cert, denied, 390 U.S. 973 (1968) 
(303 F. Supp. at 309); and on the further grounds 
that New York had adopted some ameliorative proce­
dures and was considering legislative reform.

Judge Palmier! denied petitioners’ application for a 
certificate of probable cause. On September 15, 1969 the 
Second Circuit Court of Appeals granted a certificate 
of probable cause and, without receiving briefs on the 
merits, summarily affirmed the order below, without preju­
dice to renewal of petitioners’ application if no trial date 
had been set within thirty days.

Subsequently petitioners renewed their application to the 
Second Circuit on the ground that no trial date had been 
set within the thirty days specified by the court. Before 
the Court of Appeals ruled on this application, a state judge 
set the case for trial on November 17. But petitioners’ re­
newal application (See Order to Show Cause and Support­
ing Affidavit), respondent’s Affidavit in Opposition and peti­
tioners’ Reply Affidavit made it clear that despite the fact 
that a trial date had been set, no trial would in fact take 
place on November 17.

Those papers revealed that since the Second Circuit’s 
September 15 decision, the district attorney had empanelled 
a new grand jury to hear evidence against petitioners, 
including evidence on the same facts set forth in the pend­
ing indictment. While the parties disagreed as to whether 
this was the precipitating cause of delay, they agreed that



10

the trial would not in fact take place as soon as November 
17.'

On October 24,1969, the Second Circuit Court of Appeals, 
without hearing oral argument, summarily denied peti­
tioners’ renewal application. The Court’s per curiam 
opinion (No. 257) found as follows:

It is apparent from the history of the proceedings in 
the state supreme court that defendants and their coun­
sel have sought delay by every means available since 
their indictment in April, 1969. The State, on the other 
hand, has consistently stood ready to proceed to trial. 
Moreover, we see no basis for this latest petition, since 
on October 15 Judge Murtagh set the case for trial on 
November 17, which certainly is in conformity with our 
order of September 9th.

On November 17, 1969, the day the case was set for trial, 
petitioners were served with a copy of a new thirty-count 
indictment, superceding the original indictment, and nam­
ing an additional defendant. The state court scheduled a 
pre-trial motion hearing for December 18, 1969. No trial

® Thus the district attorney noted at p. 6 of his AiSdavit in 
Opposition :

We decided to institute these proceedings in September after 
we were advised that Mr. Kunstler would be engaged for two 
to three months. When I spoke with the Assistant United 
States Attorney who is assisting in the prosecution of the 
Chicago case last week, he advised me that the presentation 
of Government’s case would require two more months. Bather 
than waste additional time waiting for the defense to try this 
case, we intend to utilize our time productively.

And he conceded that:
. . . Forcing these defendants on to trial at this time without 
their chief counsel seems particularly inappropriate. . . .



11

date was set and petitioners therefore continue to be held 
on bail they cannot afford for an indeterminate period which 
has already lasted for more than eight months.®

REASONS FOR GRANTING THE WRIT 

Introduction

Petitioners are the victims of the money bail system, a 
system whose operation, assumptions, and constitutionality 
have become the subject of increasing criticism and con­
cern among the informed public.’' Close examination of 
this system has revealed that monetary bail does not even 
perform well its supposed function of increasing the likeli­
hood of appearance at tria l; that in most cases the decision 
whether an accused will be released prior to trial is dele­
gated to the unregulated discretion of a professional bonds­
man whose decision to release an accused is only inciden­
tally related to the likelihood of flight and completely 
unimpeded by constitutional requirements; that the cost 
of pre-trial imprisonment in terms of time, public funds, 
employment, education, and human suffering is staggering;

® After the superceding indictment was handed down, petitioners 
again applied to the United States District Court for habeas corpus 
relief. On December 1, 1969, the Honorable Marvin B. Prankel 
denied this application on the ground that the circumstances of 
petitioners’ case were fundamentally the same as they were at the 
time the ease was before Judge Palmieri, and that he therefore 
could not depart from the decision arrived at by Judge Palmieri 
and affirmed by the Second Circuit Court of Appeals. United 
States ex rel. Lumumba Abdul Shakur, et al. v. Commissioner of 
Corrections George F. McGrath, No. 69 Civ. 5146, S.D.N.Y., Dee. 1, 
1969, opinion No. 36350.

One reflection of that widespread concern is the fact that at 
least two national conferences have been organized to consider 
bail reform. See Proceedings of the Conference on Bail and In ­
digency, 1965 U. 111. L. Forum, # 1 ;  National Conference on Bail 
and Criminal Justice, Proceedings and Interim Report (1965) 
[hereinafter cited as National Bail Conference]; cf. National Con­
ference on Law and Poverty, Conference Proceedings (1965).



12

and that the bail setting process is commonly abused to 
punish prior to trial, to give the accused “a taste of jail,” 
or “to make an example.” And finally, there is increasing 
recognition that bail has served as a means of detaining 
those persons thought to be dangerous to the community 
quite apart from the likelihood of their appearance at 
trial. Thus it is no accident that legislative proposals for 
preventive detention have arisen at a time when bail reform 
projects have led in at least some places to the release of 
some indigents considered likely to appear for trial.

Commentators have for some time not only criticized the 
operation of the money bail system, but challenged its 
fundamental premises on constitutional grounds.® One 
might suppose that the appearance of obviously substan­
tial constitutional questions against the background of an 
overwhelming body of evidence documenting the abuse and 
unfairness of the money bail system would have ordinarily 
resulted in consideration of pertinent constitutional stand­
ards by this Court before the present day. But in this 
area lower courts act in a constitutional vacuum. Accord­
ing to Professor Caleb Foote “there is not a single intel­
lectually respectable judicial decision” on the question of 
the application of the bail system to an indigent.'* This 
reflects the fact that appellate courts rarely are accorded 
the opportunity to grapple with the principles which spell 
the difference between liberty and jail for thousands of 
defendants each day, largely because of the impractica­
bility of resort to protracted appellate procedures during 
a time before criminal trial moots the constitutional issues 
presented. The result is that the hammering out of doctrine 
through the creative interplay of higher and lower courts— 
so integral a part of law development in Anglo-American

® See, e.g., Foote, The Coming Constitutional Crisis in Bail, 113 
U. Pa. L. Rev. 959 (1965) [hereinafter cited as Crisis in Bail] at 
1126 et seq.

® National Bail Conpeeence, p. 227.



13

jurisprudence—has been totally stifled in the bail area. As 
a consequence, administration of release standards is, in a 
sense, lawless. With deference, we believe this considera­
tion above all others should move the Court to considera­
tion of the questions raised by this case.

Few bail cases have survived for this Court’s exami­
nation: the resources required to bring such a case here 
are far beyond those of most counsel for the indigent ac­
cused; and such cases are almost always mooted by trial 
before they can reach this Court.

The instant case is particularly worthy of this Court’s 
attention. Petitioners’ claims that New York’s administra­
tion of the money bail system violated their federal consti­
tutional rights were squarely presented to and rejected by 
the district court below. Moreover, this ease represents a 
particularly blatant example of the misuse of the money 
bail system to detain those believed to be dangerous. And 
finally, the refusal of the Court of Appeals even to deal 
with petitioners’ constitutional claims reflects a disposition 
that, if sanctioned, would make even less likely the develop­
ment of any case law in the bail area. If this Court is ever 
to consider the enormously important federal issues in­
volved in this area, it should grant certiorari to consider 
this shocking case of perversion of the bail setting process 
and abdication of judicial review by the court below.

(1) Proceedings in The District Court

The district court squarely rejected the contention that 
the pre-trial detention of indigents violates their constitu­
tional rights, and particularly their rights under the Equal 
Protection Clause of the Fourteenth Amendment. The court 
cited no authority in support of its conclusion that the 
present bail system satisfied the Equal Protection Clause, 
and with deference Amicus urges that such authority does



14

not exist. Indeed, as contemporary observers of the bail 
system have noted, perhaps most striking of the bail sys­
tem’s evils is its total inconsistency with jjrinciples of 
equality established by this Court in other areas of the crimi­
nal law. Gideon v. Wainwright, 372 U.S. 335 (1963); Grif­
fin v. Illinois, 351 U.S. 12 (1956); cf. Harper v. Virginia Bd. 
of Elections, 383 U.S. 663 (1966). The raw fact is that in 
the name of equality we require that even a man Avho has 
been convicted be provided with free legal counsel, as well 
as the means with which to conduct his appeal, but deny 
equal treatment to the man whom tradition clothes with the 
presumption of innocence.

The district court stated that the present money bail 
system was “essentially consistent with principles con­
strued to be appropriate by the Supreme Court of the 
United States and can be regarded as 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.) Here again there is nothing in the 
opinion to support this a priori conclusion. One can only 
ask in response to such assertions, in what manner the 
interest of the accused and that of the community are 
properly balanced when the present system detains only 
the indigent accused who is dangerous or likely to flee; and 
when bondsmen are delegated absolute and unreviewable 
authority to determine who will and who will not be re­
leased. Of all the countries in the civilized world only the 
United States and the Philippines maintain a secured 
money bail system comparable to New York’s.̂ " In most 
countries the question of pre-trial release turns on non- 
financial factors such as the accused’s potential danger to 
the community or risk of flight.“ New York’s system op-

National Bail Conference, p. 320.
“  Crisis in Bail, p. 963.



15

erates in accordane© with no such principl©. Rogardless 
of a person’s capacity to harm the community he is abso­
lutely entitled to release if bail is set̂ ® if he has money 
enough to purchase it. The district court conceded that 
New York’s money bail system “may, under certain cir­
cumstances, create a disadvantage for those who are eco­
nomically underprivileged. . . .” (303 F. Supp. at 309) 
While this language seems euphemistic in the extreme (es­
pecially in light of the authorities cited in footnote 6 of the 
court’s opinion, 303 F. Supp at 309), it is plain that the 
couit did not dispute the prejudice to the poor which all 
other observers of the New York money bail system have 
found. Nevertheless, the court upheld the system as against 
Amicus’ constitutional challenge on the ground that :

It is so thoroughly a part of our traditional procedures 
in criminal cases that nothing short of legislation can 
appropriately reform it. (303 F. Supp. at 309)

But the fact that the money bail system is a traditional 
procedure under which the poor have long suffered dis­
crimination cannot insulate it against constitutional attack. 
See. e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 
669 (1966); Malloy v. Hogan, 378 U.S. 1, 5-6 (1964); White 
V. Crooh, 251 P.Supp. 401, 408 (M.D. Ala. 1966) (three- 
judge court). And this Court has in numerous recent cases 
rejected the contention that conceded constitutional viola­
tions must await legislative action. See, e.g., Baker v. Carr,

Under New York law there is authority to set no bail at all in 
certain felony cases. See N.Y. Code Grim. Procedure §553 (1958) ; 
cf. N.Y. Const, Art. I, §5. However, perhaps because of the ques­
tionable constitutionality of this authority, the bail-setting judge 
ill this case, as in the vast majority of all New York cases, obviously 
felt bound to set some bail. In response to the district attorney’s 
request that no bail be set, he noted that the petitioners were “en­
titled to some bail.” (Arraignment, April 2, 1969, New York 
County Supreme Court, Tr. 11).



16

369 U.S. 186 (1962); Brown v. Board of Education, 347 
U.S. 483 (1954), 349 U.S. 294 (1955); Gideon v. Wain- 
wright, 372 U.S. 335 (1963). Moreover, as noted infra pp. 
19-20, there is no movement for—nor any legitimate pros­
pect of—reform of the money bail system in New York, as 
the district court optimistically assumed. The grim reality 
is that unless this Court enunciates in clear and unmistak­
able terms that state officials are presently operating a 
system which is constitutionally defective it is surely folly 
to expect that those officials will even consider its reform.

We call the Court’s attention to the fact that this is a 
petition for writ of habeas corpus and not a class action 
seeking injunctive relief, and that this Court therefore 
need only enunciate the constitutional principles which 
govern and their effect on petitioners. We do not ask this 
Court to adopt a code of criminal procedure, but only to 
inform the State of New York that it cannot constitution­
ally operate a money bail system Vvffiich provides for the 
pre-trial incarceration of the indigent solely because of 
their indigency. That is this Court’s role and function and 
it in no way trespasses upon legislative prerogatives for 
it so to act.

Moreover, prohibiting New York from continuing to 
way frustrate the State’s ability to accomplish the legiti­
mate objectives of a system of pre-trial disposition of 
criminal defendants. Indeed the alternatives available to 
the State will far better serve its interests in encouraging 
appearance at trial and protecting the public against al-

“  It is significant that in Gonzalez v. Warden, 21 N.Y.2d 18 
24, 233 N.E. 2d 265, cert, denied, 390 U.S. 973 (1968), the New 
York Court of Appeals, like the court below, noted the injustice 
of New York’s bail system but, rather than declaring that system 
unconstitutional, simply indicated that it was for the legislature 
to consider its reform. The result, of course, is that no reform has 
taken place.



17

legedly dangerous persons than the money hail system 
which, as investigation has revealed, serves such objectives 
only sporadically and fortuitously. Thus, since it is ap­
parent that the fear of being caught and treated more se­
verely for failing to appear is primarily responsible for the 
low jump rate of those released, many jurisdictions have 
intensified this restraining influence by maldng failure to 
appear a crime. Many other alternatives to money bail 
have been suggested and implemented, such as supervision 
of the accused by a probation officer, weekly reporting to 
some state agency, and restrictions on travel. The Federal 
Bail Reform Act of 1966 creates a presumption that every 
accused should be released on his own recognizance, and 
sets out a list of alternative measures to be used if it is 
found that he is likely to flee, giving priority to measures 
which do not require money bail. No reason appears why 
similar devices would not adequately serve New York’s 
interest in securing the appearance of defendants for trial. 
Similarly, if preventive detention is conceded to be a legiti­
mate goal and its fulfillment is believed practicable, there 
are assuredly alternative methods available which would 
be not only more fair but more effective than the money 
bail system, which provides the community no protection 
whatsoever against dangerous criminals who are able to 
afford bail, such as those engaged in organized or profes­
sional crime.

The district court’s opinion was further premised on its 
assumption that New York had responded to the “inequi­
ties of the money bail system” by adopting “ameliorative 
procedures.” (303 F.Supp at 309.) With deference, this 
assumption is palpably and demonstrably false. The 
money bail system is alive and well in New York, as is 
plainly known by all who have the least familiarity with it. 
It is true that the past decade has seen many changes in the 
administration of bail in the United States. In the years



18

since the Manhattan Bail Project began, there has been a 
steady growth in the use of non-financial alternatives to 
the anachronistic money bail system. As a result of the bail 
reform movement there is today in many parts of the na­
tion a greater awareness than ever before of the need to 
provide a fairer and more effective pre-trial release proce­
dure. But recognition of the need for reform has not been 
translated into action in the criminal courts of New York. 
Indeed, our research shows that although New York City 
may be considered the birthplace of modern bail reform, 
the City now operates a wasteful, inefficient, unfair and 
even cruel system of jailing the poor before they are tried 
and convicted—a system which is all to similar to that of 
a decade ago.̂ ^

“  Investigation reveals that bail reform efforts in New York City 
have not fundamentally affected the manner in which the money 
bail system operates. Prosecutors and judges continue to recom­
mend and set bail in dollar amounts, with no articulation of rea­
sons why these amounts are required; with little'or no information 
about the defendant before them; and with either a conscious 
intent to detain, or an apparent lack of concern as to whether 
detention will be the result of the money bail decision. While it is 
true that because of bail reform projects some persons are being 
released today without having to post money bail, it is also true 
that a very large proportion of all defendants continue to be held 
before trial for significant periods of time solely because of their 
poverty even though it is clear that almost all of these defendants 
are “good risks”. Thus virtually all studies show that if all defen­
dants were released pre-trial, only about 3%, at most, would flee. 
Yet at the present time in New York City well over half of all 
defendants charged with felonies are detained because they cannot 
post the amount of bail imposed upon them; and money bail is set 
in 85% of all felony cases, 52% of all misdemeanor cases; and 
50% of all petty offense cases.

A recent census by the City Correction Department of the 6,613 
men, women and teenagers awaiting trial in the jails of New York 
City, on May 31, 1969, gives some idea of the length of pre-trial 
detention. Almost two-thirds of the prisoners had been in jail two 
months or more; well over one-fifth had been held six months or 
more; and almost 200 had been held one year or longer. The 3887 
Supreme Court prisoners had been held an average of 1.4 months 
each. Of those for whom bail was set well over one-fourth were



19

Thus the district court’s assumption that New York had 
adopted ameliorative procedures comparable to the Federal 
Bail Eeform Act of 1966 is baseless. The Bail Eeform Act 
at least ensures that no financial condition may be imposed 
upon a defendant who is indigent until it has been affirma­
tively demonstrated that there is a significant risk of flight 
and that all non-financial alternatives have been exhausted. 
It is precisely because no such procedures have been adopted 
by the courts of the State of New York or its legislature 
that Amicus is before this Court.

The district court also relied on its assumption that New 
York was considering legislative reform of the bail system, 
referring in footnote 7 (303 F. Supp. at 309) to the Pro­
posed Criminal Procedure Law recommended by the New 
York State Temporary Commission on Eevision of the 
Penal Law and Criminal Code. Unfortunately, the Com­
mission’s proposed revision of New York’s bail law gives 
no hope of ameliorating the hardships suffered by the in­
digent under the present system. Indeed, the proposed code 
reduces the likelihood that persons charged with crime will 
obtain release before trial. It contains none of the progres­
sive features of the Federal Bail Eeform Act or of similar 
legislation in Connecticut, Illinois and elsewhere which, in
held on bails of $500 or less. (City Correction Dept., Survey of 
New York City Detention Centers in May, 1969, reviewed in the 
New York Times, Sept. 2, 1969, p. 1, col. 5).

In a recent survey of New York detention facilities over 200 boys 
between the ages of 16 and 20 were being held on bonds of $500 
or less. A full 40% of the youthful detention population was de­
tained^ on bonds of $1,000 or less. At the other extreme, there is 
extensive use of high money bail for the express purpose of de­
taining allegedly dangerous defendants. A Vera Institute survey 
showed that some 232 defendants charged with robbery had been 
detained for 30 days or more on bonds which ranged up to $50 000 
and which averaged $5,300. ’

A number of recent articles have documented as well the miser­
able conditions typical of New York’s pre-trial detention facilities. 
See, e.g., the New York Times, Sept. 2, 1969, p. 1, col. 5- Aug 8 
1969, p. 1, col. 1. ’ 6- )



20

line with contemporary thought, stress use of unsecured 
bonds, release on recognizance and non-financial conditions 
as means of assuring that the defendant will return for 
trial. Instead the proposed legislation seems to establish a 
presumption in favor of money hail, leaving the decision 
as to v̂ ho goes free in the hands of the professional bonds­
man. There are no limits set on the length of pre-trial de­
tention and no recognition that pre-trial detention tends to 
prejudice a fair trial.

The district court rejected not only the attacks on the 
constitutionality of New York’s money bail system, as ap­
plied to petitioners in this case, but also petitioners’ claim 
that bail had been misused in this case to detain because of 
alleged dangerousness. Thus the court concluded that the 
bails set in this case were not excessive under the principles 
enunciated in Stach v. Boyle, 342 U.S. 1 (1951), since they 
were justified as attempts to secure adequate assurance of 
appearance at trial. In arriving at this conclusion the court 
relied on facts which cannot legitimately justify detention 
on prohibitively high bail: aside from the seriousness of 
the charges the court mentioned only the facts that some 
of the petitioners had been found in the possession of con­
traband, that some had prior criminal records, and that 
several alleged co-conspirators had fled. But a more funda­
mental problem is that the district court, rather than look­
ing to the grounds for the state bail-setting judge’s deci­
sions, independently assessed the facts and concluded that 
they could have supported a conclusion that such bails were 
necessary to prevent flight. The state court record, how­
ever, clearly reveals that risk of flight was not the ground 
for the bail-setting court’s decision, and that bail was set 
at such high amounts with the specific purpose of detaining 
petitioners because of their alleged danger to the com­
munity. No considerations other than dangerousness were 
presented by the district attoi’ney or apparently considered



21

by the bail-setting court. (See supra, pp. 5-7.) And -while 
that court refused the district attorney’s request to deny 
bail altogether on such grounds, it did the equivalent in 
setting bail at the prohibitively high figure of $100,000.“

(2) Proceedings in The Court of Appeals

The Court of Appeals refused even to consider peti­
tioners’ constitutional claims, so long as the district attorney 
was willing to set a relatively prompt trial date, irrespective 
of w^hether trial would actually take place on that date. 
Amicus believes that the manner in which the Court of Ap­
peals treated petitioners’ substantial constitutional claims 
was palpably erroneous and urgently demands correction. 
The court placed an improper burden upon petitioners’ 
constitutional right to prepare for trial, implicitly sanc­
tioned preventive detention and effectively denied the right 
to judicial review of bail decisions.

The court summarily dismissed petitioners’ appeal on 
September 15 in an order which specified that their applica­
tion could be renewed only if no trial date was set within 
thirty days. The court’s October 24 per curiam opinion de­
nying petitioners’ claims was grounded solely on its findings 
that the State had consistently stood ready for trial while 
the petitioners had sought delay since their indictment in 
April, and the fact that the case had been set down for trial 
on November 17.

One fundamental problem with the reasoning of the court 
below is the notion that, so long as trial is scheduled to take 
place relatively promptly, there is no right to judicial re­
view of the bail-setting process and therefore, in effect, no

We note here that 75% of all accused persons cannot make bail 
at $5000. Foote, A Study of the Administration of Bail in New 
York City, 106 U. Pa. L. Rev. 693, 1032 (1958).



22

right to have hail set in conformity with the federal con­
stitution’s command.̂ ®

In ruling that petitioners’ detention is constitutional so 
long as a relatively prompt trial is scheduled, the court 
below has also effectively sanctioned preventive detention 
in violation of this Court’s ruling in Stack v. Boyle, 342 
U.S. 1 (1951).” Even those who advocate some sort of 
preventive detention scheme have recognized that it should 
apply to the rich as well as the poor and that its constitu­
tionality would depend on providing defendants with evi­
dentiary hearings at which their alleged danger to the com­
munity or risk of flight could be determined.”  No such

Ironically, the habeas corpus remedy was developed in large 
part as a procedural mechanism for dealing with judges who had 
been refusing to set bail as required by law. Professor Foote found 
that one of the essential elements of the English protection against 
pre-trial detention was:

. . . the simple, effective habeas corpus procedure which was 
developed to convert into reality rights derived from legisla­
tion which could otherwise be thwarted. . . . (Crisis in Bail, 
p. 968).

The court below, by simply refusing to face the constitutional is­
sues raised by petitioners, has effectively thwarted petitioners’ 
constitutional rights.

”  In a concurring opinion, Mr. Justice Jackson noted that if un­
usually high bail was set merely to keep the defendants in jail, “it 
is contrary to the whole policy and philosophy of bail,” 342 U.S. 
at 10. See also Williamson v. United States, 184 F.2d 280, 282-83 
(2nd Cir. 1950) (Jackson, J., sitting as Circuit Justice).

”  See, e.g., the set of preventive detention bills introduced in 
the current session of the United States Congress by Senator 
Tydings, S. 546 and S. 547; Pennsylvania ex rel. Tucker v. Hen­
drick, 257 A.2d 656, 657 (Pa. Super. Court 1969) (Hoffman, J., 
dissenting), and authorities cited therein; A.B.A. Project on 
Minimum Standards Eelating to Criminal Justice, Standards Re­
lating to Pretrial Release §1 (Tentative Draft, March, 1968) (the 
Project neither endorsed nor rejected the principle of preventive 
detention).



23

hearings were held in this case. Indeed petitioners’ re­
quests for evidentiary hearings were specifically denied.

Another problem with the decision of the court below is 
the fact that it apparently found totally irrelevant the 
likelihood that trial would in fact take place on November 
17, since the papers before it made it absolutely clear that 
the trial would be delayed for a number of weeks if not 
months. Even the district attorney conceded this, noting 
that he had decided to impanel another grand jury, alleg­
edly because he realized that petitioners’ chief counsel 
would not be available for trial for at least two months 
and he recognized that it would be unfair to force them to 
trial without him. (See supra, pp. 9-10 and n. 5). As noted 
supra, on November 17, the scheduled trial date, a super- 
ceding indictment was handed down as predicted, and as 
a result petitioners continue to be held in custody without 
any new trial date having been set. Moreover, since the 
new indictment includes 18 additional counts and one addi­
tional defendant, it appears extremely unlikely that the 
trial will take place in the near future.

Moreover, where petitioners had been held in jail since 
the beginning of April, the mere fact that a trial date had 
finally been scheduled should not have deprived them of the 
right to have their constitutional claims considered even if 
it had appeared likely that trial would in fact take place 
on that date. The Court of Appeals attributed the delay 
between indictment and trial to petitioners in its October 
24 opinion, but even assuming that this finding was correct, 
it cannot justify the court’s refusal to deal with petitioners’ 
constitutional bail claims. The court made no finding—nor 
was there anything in the record to support a finding— 
that petitioners had sought delay for its own sake or for 
any purpose other than proper and thorough trial prepara­
tion. It is fundamental that defendants’ right to the effec-



24

tive assistance of counsel means that counsel must be 
afforded adequate opportunity to prepare for trial/'* in­
cluding adequate opportunity to raise constitutional de­
fenses prior to trial.'*® The right to a speedy trial belongs 
to the defense, not the prosecution, and can be, as it was 
in this case, waived.**̂  It is understandable that in many 
cases the prosecution will be prepared for trial before the 
defense. Thus in this case at the time the indictment came 
down in April, the prosecution’s three-year investigation 
of the case had terminated, while defense counsel’s in­
vestigation had yet to begin. Petitioners’ counsel were 
faced with the need to prepare for an enormously com­
plicated trial, estimated to last four months, on an ex­
tremely serious twelve-count indictment, for a conspiracy 
alleged to cover eight months, including twenty-one named 
defendants. Their preparation involved not only exten­
sive investigation but the presentation of numerous pre­
trial motions raising serious constitutional questions (see 
petitioners’ Reply Affidavit in their second appearance 
before the U. S. Court of Appeals). A rule that defendants’ 
constitutional bail claims will not be considered wherever 
delay in bringing a case to trial is occasioned by the de­
fense places an unconstitutional burden on the right to 
prepare for trial, including the right to present serious 
constitutional claims prior to t r i a l . Such  a rule also com­
pounds the prejudice already suffered by jailed defendants 
as compared to defendants who are out on bail. As vir-

See, e.g., White v. Bagen, 324 U.S. 760, 764 (1945); Powell v. 
Alaiama, 287 IJ.S. 45, 59 (1932) ; MacKenna v. Ellis, 280 F.2d 592 
(5th Cir. 1960) ; c/., Avery v. Alabama, 308 U.S. 444 (1939).

See, e.g., Beece v. Georgia, 350 U.S. 85 (1956).
Note, The Bight to a Speedy Trial, 57 Colum. L. Rev. 846 

(1957).
See, e.g.. United States v. Jackson, 390 U.S. 570 (1968) ; Sim­

mons V. United States, 390 U.S. 377, 394 (1968).



25

tually all critics of tlie money bail system have noted, de­
fendants in jail are at a serious disadvantage in investigat­
ing and preparing for trial because of the difficulty of, for 
example, locating witnesses and meeting with counsel.̂ ® 
This is particularly true in a case like this involving a 
number of defendants spread throughout seven different 
facilities in four different boroughs.

On a practical level, the court’s ruling, in refusing to 
deal with petitioners’ constitutional claims so long as the 
State is prepared for a relatively prompt trial, represents 
a doctrine that, if sanctioned, would virtually ensure 
against any judicial review of bail decisions. As pointed 
out supra, bail issues are usually mooted by trial before such 
review can be obtained. Under this ruling, those few eases 
which survive for appellate scrutiny would be dismissed on 
the grounds either that trial is imminent or that delay has 
been caused by the defense.

*  *  #  #  #

In the United States District Court below Amicus sub­
mitted a brief which outlined in detail the manner in which 
New York’s administration of a money bail system vio­
lated petitioners’ rights under the Excessive Bail Clause 
of the Eighth Amendment and the Due Process and Equal 
Protection Clauses of the Fourteenth Amendments. Here 
Amicus will simply summarize briefly the constitutional 
issues raised by this case which we urge the Court to grant 
certiorari to determine.

See, e.g., Crisis in Bail, p. 1142.



26

Certiorari Should Be Granted to Decide Whether the 
Fourteenth Amendment Makes Applicable to the States 
the Excessive Bail Clause of the Eighth Amendment and 
Whether That Clause Grants a Right to Pre-Trial Release 
to the Rich Which Cannot Be Foreclosed to the Poor.

The Eighth Amendment provides:
Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted.

In recent years, this Court has frequently granted re­
view in cases seeking to apply the specific guarantees of 
the Bill of Eights to state criminal proceedings. See Klop- 
fer V. North Carolina, 386 U.S. 213 (1967) (speedy tria l); 
Pointer v. Texas, 380 U.S. 400 (1965) (confrontation); 
Washington v. Texas, 388 U.S. 14 (1967) (compulsory 
process); Gideon v. Wainwright, 372 U.S. 335 (1963) (right 
to counsel); Ker v. California, 374 U.S. 230 (1963) (stand­
ard of legality of searches without a warrant); Aguilar v. 
Texas, 378 U.S. 108 (1964) (standard for the issuance of 
a search warrant); Wlapp v. Ohio, 367 U.S. 643 (1961) (ex­
clusion of illegally seized evidence); Malloy v. Hogan, 378 
U.S. 1 (1964) (protection against self-incrimination); 
Robinson v. California, 370 U.S. 660 (1962) (Eighth Amend­
ment protection against cruel and unusual punishment) ; 
Duncan v. Louisiana, 391 U.S. 145 (1968) (right to jury 
trial). The excessive bail clause of the Eighth Amendment 
is the most significant guarantee of the Bill of Eights re­
maining to be considered. Petitioner contends that the right 
against pre-trial detention upon which the Eighth Amend­
ment rests is a critical aspect of the “liberty” protected 
by the due process clause of the Fourteenth Amendment 
against deprivation by the states. As this Court has not



27

heretofore considered whether the excessive bail danse 
of the Eighth Amendment is absorbed in the Fourteenth 
and, if so, the character and extent of its application, this 
petition plainly presents a question appropriate for exer­
cise of the certiorari jurisdiction.

A pronouncement by the Court that the Fourteenth 
Amendment applies the excessive bail prohibition of the 
Eighth to the states is particularly timely now in the 
wake of the incorporation of the Eighth Amendment’s 
other major guarantee forbidding cruel and unusual pun­
ishments, Robinson v. California, 370 U.S. 660 (1962). To 
incorporate that clause but ignore its companion—and thus 
to restrain the states’ power to punish the guilty but not 
their power to punish the presumptively innocent—would 
be not merely irony but retardation of more than half a 
millennium of Anglo-American growth in the traditions of 
freedom. For, if one thing is clear in the history of the slow 
and painful evolution of the modern concept of personal 
liberty, it is the vital and continuing part played in that 
history by the struggle to assure the right of pre-trial 
release. In deciding to apply specific guarantees of the 
Bill of Rights to state criminal proceedings, this Court 
has in the past emphasized the significance accorded these 
rights in the heritage of English law. See, e.g., Klopfer 
V . North Carolina, supra, 386 U.S. at 223-26; Pointer v. 
Texas, supra, 380 U.S. at 403-05.

Once it is acknowledged that the states are forbidden by 
the Fourteenth Amendment to demand “excessive bail” 
within the terminology of the Eighth, the question remains 
of the meaning to be assigned to that exceedingly ambiguous 
constitutional command. Its simple phraseology conceals a 
welter of difficulties of construction, none yet resolved by 
a considered and authoritative decision of the Court. These 
do not detract, however, from the inevitable conclusion that 
the purpose of the Amendment was to grant a broad right 
to pre-trial release.



28

It is Amicus’ contention that the intended and most rea­
sonable interpretation of the Excessive Bail Clause of the 
Eighth Amendment to the United States Constitution re­
quires that bail be set in all criminal cases, with the possible 
exception of a narrow range of extremely serious eases, as 
for example capital cases. Significantly, although New 
York law provides that bail can be denied in certain felony 
cases, the bail-setting judge in this case apparently felt 
constitutionally compelled to set some bail. See supra, pp. 
5-6 and p. 15 and n. 12. Since the right to have bail set con­
stitutes a right to pre-trial release for those who can afford 
bail, amicus contends that an equivalent right to pre-trial 
release must be accorded to those who cannot, since it has 
long been established that the Equal Protection Clause of 
the Fourteenth Amendment prohibits, a state from making 
a distinction between the rich and poor in deciding whether 
an important right will be granted, particularly in the field 
of criminal justice.

II
Certiorari Should Be Granted to Determine Whether, 

Irrespective of Any Right to Pre-Trial Release, Peti­
tioners’ Incarceration Prior to Trial, Solely on Account 
of Their Poverty, Denies Them Equal Protection of the 
Laws in Violation of the Fourteenth Amendment.

This Court’s decisions under the Equal Protection Clause 
have struck down numerous state practices which differen­
tiate between rich and poor in the administration of the 
criminal process. Griffin v. Illinois, 351 U.S. 12 (1956) 
(denial of free criminal trial transcript necessary for ade­
quate appellate review) ; Eskridge v. Washington State 
Board, 357 U.S. 214 (1958) (denial, absent trial court find­
ing that “justice will thereby be promoted,” of free crimi­
nal trial transcript necessary for adequate appellate re-



29

view); Draper v. Washington, 372 U.S. 487 (1963) (denial, 
on trial court finding that appeal is frivolous, of free crimi­
nal trial transcript necessarj^ for adequate appellate re­
view) ; Lane v. Brown, 372 U.S. 477 (1963) (denial, absent 
public defender’s willingness to prosecute appeal from de­
nial of state coram nobis petition, of free transcript of 
coram nobis proceeding necessary to perfect state appellate 
jurisdiction); Douglas v. California, 372 U.S. 353 (1962) 
(denial, absent appellate finding that appointment of coun­
sel on appeal would be of value to defendant or the appel­
late court, of free appointment of counsel on appeal as of 
right 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); Rincald 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). See also Gardner v. California, 393 U.S. 367 (1969); 
Swenson v. Bosler, 386 U.S. 258 (1967); Anders v. Cali­
fornia, 386 U.S. 738 (1967); Roberts v. Lavallee, 389 U.S. 
40 (1967); Long v. District Court of Iowa,, 385 U.S. 192 
(1966).

It cannot be denied that there is an apparent inconsis­
tency between these decisions and the administration of 
the money bail system which petitioner has challenged. 
Examination of this inconsistency by the Court is long over­
due. The pre-trial detention of the indigent solely because 
they are indigent constitutes an invidious discrimination, 
and denies petitioners in the most obvious and offensive 
way their constitutional rights to equal protection.



30

III
Certiorari Should Be Granted to Determine Whether 

Petitioners’ Incarceration Prior to Trial Denies Them 
Due Process of the Law in Violation of the Fourteenth 
Amendment.

It is clear that setting bail in an amount that petitioners 
cannot afford is the functional equivalent to petitioners of 
denying them bail altogether. Such pre-trial detention not 
only punishes the criminal accused without trial but, as 
recent empirical studies have shown, also prejudices the 
fact-finding, guilt-determining and sentencing processes 
through which they pass.

The imposition of such severe disabilities upon petitioners 
cannot be justified by any legitimate state interest. Whether 
or not some system could constitutionally be devised for 
selecting out that tiny percentage of all defendants who 
pose a sufficiently high likelihood of flight to warrant pre­
trial detention (virtually all studies have estimated that if 
all defendants were released, only approximately 3% would 
flee), it is clear that New York’s present system cannot with­
stand constitutional attack. New York’s system detains a 
large proportion of all criminal defendants, the vast ma­
jority of whom pose no significant risk of flight; further­
more, New York provided petitioners with no procedure 
whereby the factors relevant to risk of flight could be con­
sidered ; and finally, the ultimate question of release or in­
carceration is determined by whether or not the accused can 
afford the bail amount fixed, a factor that bears no relation 
to the likelihood of flight.



31

IV
Certiorari Should Be Granted to Determine Whether 

the Use of Bail to Detain Petitioners Prior to Trial Be­
cause of Their Alleged Dangerousness Violates Their 
Rights Under the Eighth and Fourteenth Amendments 
to the United States Constitution.

It has long been known that the money bail system has 
been used to detain those accused persons believed to be 
dangerous despite the fact that theoretically the sole pur­
pose of bail is to assure the accused person’s appearance 
at trial. Few cases arise, however, in which the record re­
veals that preventive detention was in fact the motivation 
for the bail decision, since ordinarily such decisions are 
made on the basis only of defendants’ prior criminal rec­
ords and without any specific findings as to the reasons for 
setting bail in particular amounts.

The instant case presents a particularly blatant example 
of the use of the money bail system for the express purpose 
of detaining allegedly dangerous defendants. As noted, 
supra pp. 5-7, bail was initially set in an amount which peti­
tioners clearly were incapable of making in response to the 
district attorney’s arguments that petitioners were dan­
gerous and should not be released. And the court below, 
by refusing to deal with petitioners’ constitutional conten­
tions so long as the prosecution stood ready foF a prompt 
trial, effectively sanctioned the concept of preventive deten­
tion.

Amicus urges the Court to take this opportunity to rule 
that the pre-trial detention of petitioners because of their 
alleged dangerousness is in violation of their rights under 
the Eighth and Fourteenth Amendments to the United 
States Constitution. Briefly, we contend first that such de­
tention violates the Excessive Bail Clause of the Eighth



32

Amendment. Indeed this Court, in Stacl v. Boyle, 342 U.S. 
1 (1951), has already indicated that the only constitutionally 
permissible purpose of bail is to assure the accused’s ap­
pearance at trial. Second^, a system which provides for 
the pre-trial detention of allegedly dangerous offenders 
only if they are unable to afford bail is in clear violation of 
the Equal Protection Clause of the Fourteenth Amendment. 
And finally, a system which results in the pre-trial deten­
tion of large numbers of defendants, ivithout providing any 
procedure for the rational selection of those defendants who 
are in fact sufficiently dangerous to warrant such detention, 
is in violation of the Due Process Clause of the Fourteenth 
Amendment.

CONCLUSION

W herefore, Amicus prays that the writ of certiorari be 
granted and the cause expedited.

Respectfully submitted.

J ack Geeexbeeg 
M ichael Meltsher 
E lizabeth B. Dh B ois 

10 Columbus Circle 
New York, New York 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Inc.



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