Gonzalez v. Warden Motion to Advance and Petition for a Writ of Certiorari to the New York State Court of Appeals

    In the

irtpremp (Emtrl at %  littt?b #tatPH
O ctober T e r m , 1967 

No............. Misc.

A n to n io  Go n za lez ,
Petitioner,

W arden , B rooklyn  H ouse oe D e t e n t io n ,

Respondent.

MOTION TO ADVANCE AND PETITION FOR A WRIT 
OF CERTIORARI TO THE COURT OF APPEALS 

OF THE STATE OF NEW YORK

J ack  Greenberg  
M ic h a e l  M eltsn er

10 Columbus Circle 
New York, New York 10019

H arold J .  R othw ax  
M a rtin  S pie g e l

320 East Third Street 
New York, New York 10009

Attorneys for Petitioner
A n t h o n y  G. A msterdam  
H aywood B u rn s  
J am es M. N abrit , III 
C h a rles  S t e p h e n  R alston 
M elvyn  Z arr

Of Counsel



I N D E X

MOTION TO ADVANCE .........................................   1

PETITION FOR WRIT OF CERTIORARI
Citation to Opinion Below ...................................   1

Jurisdiction ................................................................ 1

Questions Presented .................................................  2

Constitutional and Statutory Provisions Involved .... 2

Statement ...................................................................  3

How the Federal Questions Were Raised and De­
cided Below ............................................................  5

R easons fo e  G ea n tin g  t h e  W e it  :—

Introduction ...............................................................  9

I. Certiorari Should Be Granted to Decide the 
Important Question Whether the Fourteenth 
Amendment Makes Applicable to the States the 
Eighth Amendment’s Proscription Against Ex­
cessive B ail........................................................  13

II. Certiorari Should Be Granted to Determine 
Whether the Approval by the Court Below of 
Petitioner’s Pre-trial Incarceration in Default of 
Bail Offends the Eighth Amendment’s Proscrip­
tion Against Excessive Bail .............................. 16

III. Certiorari Should Be Granted to Determine 
Whether Petitioner’s Incarceration Prior to 
Trial Solely on Account of His Poverty Denies 
Him Equal Protection of the Laws ..................  26

PAGE



IV. Certiorari Should Be Granted to Determine if 
Petitioner Is Being Deprived of Due Process of 
Law ..........................................    30

C o n c l u s io n .......................................................    36

A ppe n d ix  A
Order of Affirmance ..........................................  la
Opinion of New York Court of Appeals .........  4a
Order of the Appellate Division.......................... 12a
Stipulation .........................................    14a
Petition for Writ of Habeas Corpus...................... 16a
Affidavit ................................................................  22a
Affidavit ................................................................  23a

A ppe n d ix  B :—

Probation Report ..................................................  24a

ii

PAGE



Ill

T able of Cases

Aguilar v. Texas, 378 U.S. 108 (1964) ........................  13
Anders v. California, 386 U.S. 738 (1967) ...................  27

Bandy v. United States, 82 S.Ct. 11 (1961) ..............  28
Bandy v. United States, 81 S.Ct. 197 (1961) ..............  28
Bitter v. United States, 19 L.ed.2d 15 (1967) ............. 30,33
Burns v. Ohio, 360 U.S. 252 ........................................   26

Douglas v. California, 372 U.S. 353 (1962) .......... 18, 26, 28
Draper v. Washington, 372 U.S. 487 (1963) ...............  26
Duncan v. Louisiana, No. 410, O.T. 1967 ....................  13

Eskridge v. Washington State Board, 357 U.S. 214 
(1958) ........................................................................  26

Ferguson v. Georgia, 365 U.S. 570 (1961) .................  15
Gideon v. Wainwright, 372 U.S. 335 (1963) ................ 13
Griffin v. Illinois, 351 U.S. 12 (1956) .................. 18,26,28

Harper v. Virginia State Board of Elections, 383 U.S.
663 (1966) .....................................................    29

Ker v. California, 374 U.S. 230 (1963) ........................  13
Klopfer v. North Carolina, 386 U.S. 213 (1967) ...... 13,15

Lane v. Brown, 372 U.S. 477 (1963) ............................ 26
Long v. District Court of Iowa, 385 U.S. 192 (1966) .... 27

Malloy v. Hogan, 378 U.S. 1 (1964) .............. ............. 13
Mapp v. Ohio, 367 U.S. 643 (1961) ........................ . 13
Marbury v. Madison, 1 Cranch 137 (1803) .................  17

PAGE

Pannell v. United States, 320 F.2d 698 (D.C. Cir. 1963) 21 
Pointer v. Texas, 380 U.S. 400 (1965) ................ ......13,15



IV

Eincald v. Yeager, 384 U.S. 305 (1966) ......................  26
Boberts v. Lavallee, 194 L.ed.2d 41 (1967) .................  27
Eobinson v. California, 370 U.S. 660 (1962) ...... 13,14,17

Smith v. Bennett, 365 U.S. 708 (1961) ........................  26
Stack v. Boyle, 342 U.S. 1 (1951) ................. 1, 2,12,18,19,

27,30, 32,33

Washington v. Texas, 388 U.S. 14 (1967) .................  13
White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966) .... 29

S tatutes  I nvolved

An Ordinance for the government of the Territory

PAGE

of the United States, Northwest of the Eiver Ohio, 
July 13, 1787, Article ii ............................................  18

Bail Eeform Act of 1966, 18 U.S.C. §3146 .................  24
Bill of Eights (1688), 1 W. & M. sess. 2, ch. 2 .............. 15
Habeas Corpus Act of 1679 ........................................  15
New York Code of Criminal Procedure Sec. 553 ....2, 23,27
New York Insurance Law, Sec. 331(4) .....................19,21

O t h e e  A u t h o r it ie s

Allen, Poverty and the Administration of Federal 
Criminal Justice, Report of the Attorney Gener­
al’s Committee on Poverty and the Administration 
of Federal Criminal Justice (1963) ........................ 9, 33

Ares, Bail and the Indigent Accused, 8 C r im e  and 
D e l in . 12 (1962) ......................................................................... 10

Ares, Eankin and Sturz, The Manhattan Bail Project:
An Interim Report on the TJse of Pre-Trial Parole,
38 N.Y.U. L. E ev . 67 (1963) ..................................... 10



V

Bail or Jail, Criminal Court Committee of the Ass’n 
of the Bar of the City of New York, 19 T h e  R ecord 
11 (Jan. 1964) ..........................................................  10

Botein, The Manhattan Bail Project: Its Impact on 
Criminology and the Criminal Law Processes, 43 
T ex . L. R ev . 319 (1965) ..........................................  9

Conference Proceedings, National Conference on Law 
and Poverty (1965) ...................................................  9

Foote, The Coming Constitutional Crisis in Bail, 113
U. P a . L. R ev . 959 (1965) ........................ 9,11,15,16,18,

21, 31,33, 35
Foote, Compelling Appearance in Court: Administra­

tion of Bail in Philadelphia, 102 U . P a . L. R ev. 1031 
(1954) .......................................................................11,35

Foote, A Study of the Administration of Bail in New 
York City, 106 U . P a. L. R ev . 693 (1958) .................  11

Freed & Wald, Bail in the United States: 1964, A  Re­
port to the National Conference on Bail and Crim­
inal Justice ................................................... 10,22,31,35

Freed & Wald, The Bail System of the District of 
Columbia, JR Bar Sec., D.C. Bar Ass’n 1963 ..........  10

Goldfarb, No Room in the Jail, T h e  N e w  R e p u b l ic , 
March 5, 1966 ............................................................  10

Goldfarb, Ransom —, A Critique of the American Bail 
System (1956) ............................................................  10

Hearings on S. 1357, S. 646, S. 647 and S. 648 before 
the Sub-Committee on Improvements in Judicial 
Machinery of the Committee on the Judiciary, 89th 
Cong., 1st Sess. (1965) .............................................. 11

PAGE



Mann, 1965 U. III. L. F orum 27...................................
McCarthy and Wahl, The District of Columbia Bail 

Project: An Illustration of Experimentation and a 
Brief for Change, 53 Geo. L. J. 675 (1965) ..............

McCree, Bail and the Indigent Defendant, 1965 U. 
III. L. Forum 1 ........................................................

National Conference on Bail and Criminal Justice, 
Proceedings and Interim Report (1965) ............9,11,

Note, Bail: An Ancient Practice Reexamined, 70 Yale 
L. J. 966 (1961) ......................................................10,

Note, Preventive Detention before Trial, 79 Harv. L. 
R ev . 1475 (1966) ........................................................

2 Pollock & Maitland, The History of English Law 
582 (2d ed. 1952) .......................................................

Proceedings of the Conference on Bail and Indigency, 
1965 U. III. L. F orum ..............................................

Rankins, The Effect of Pre-Trial Detention, 39 N.Y.U, 
L. R ev . 641 (1964) ................................................ 11,

Report of the May, 1960 County Grand Jury of the 
Circuit Court of Jackson County, Missouri ............

Report of the 3rd February 1954 Grand Jury of New 
York County, New York to Honorable John A. 
Mullen ......................................................................

Sills, A Bail Study for New Jersey, 87 N.J. L. J. 13 
(1964) ........................................................................

1 Stephen, A History of the Criminal Law of England 
233 (1883) .................................................................

10

10

9

23

15

11

15

9

35

10

10

10

15



In the

Oliwrt rtf tin* Hutted Staten
O ctober T e r m , 1967 

No............  Mi sc.

A n to n io  G onzalez ,
Petitioner,

— v .—

W arden , B rooklyn  H ouse oe D e t e n t io n ,

Respondent.

MOTION TO ADVANCE

Petitioner moves the Court to expedite consideration of 
the questions presented in the attached petition for writ 
of certiorari by advancing fifteen days the date by which 
respondent may file a brief in opposition. In the event the 
petition for writ of certiorari is granted, and this case 
set down for argument, petitioner moves the Court to 
advance the dates by which briefs on the merits are to be 
filed and the date of oral argument.

As grounds for such motion, petitioner, by his under­
signed counsel, states:

1. This case involves a substantial challenge under the 
Eighth and Fourteenth Amendments to the Constitution 
of the United States to the pretrial incarceration of peti­
tioner solely on account of his poverty. If petitioner’s 
contentions should prevail, he will nevertheless have been 
punished irreparably for each day he has remained in jail. 
This Court has said: “Relief in this type of case must be 
speedy if it is to be effective.” Stack v. Boyle, 342 U.S. 
1, 4 (1951).



2

2. Unless the schedule for briefing and argument is 
advanced, this case may come to trial before final action 
by the Court and the issues presented here could become 
moot. Relief similar to that sought by this motion was 
granted by this Court in Stack v. Boyle, supra. The Court 
of Appeals of the State of New York expedited the appeal 
in this case and heard oral argument five days after 
judgment in a lower court.

3. No prejudice will be suffered by respondent by rea­
son of advancing the dates of briefing and oral argument. 
Counsel for respondent has informed counsel for petitioner 
that respondent has no objection to advancing the date by 
which a brief in opposition to certiorari must be filed to 
fifteen days from receipt of the petition by counsel, and 
no objection to the Court advancing the oral argument to 
a date convenient to the Court. The issues raised by the 
petition for a writ of certiorari were fully briefed in the 
New York Court of Appeals and respondent is represented 
by counsel experienced in the presentation of constitutional 
issues to this Court.

4. The record in this case is short and those portions 
pertinent to resolution of the questions presented have al­
ready been printed in the appendix to the petition for writ 
of certiorari.

W h eb eeo r e , petitioner prays that the date by which 
respondent may file a brief in opposition to the petition 
for writ of certiorari be advanced fifteen days and, in the 
event the writ is granted, that the dates by which briefs 
on the merits are to be filed and the date of oral argument 
be advanced.

Respectfully submitted,
M ic h a e l  M eltsn eb

10 Columbus Circle 
New York, New York 10019 

Attorney for Petitioner



In the

£> u p rp m p  C n u r t  n f  %  I t r i t r f t  S t a t e s
O ctobek T e e m , 1967 

No............  Misc.

A n to n io  G onzalez ,

-v.-
Petitioner,

W arden , B rooklyn  H ouse of D e t e n t io n ,

Respondent.

PETITION FOR A  WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF THE STATE OF NEW YORK

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Court of Appeals of the State of New 
York entered on December 7, 1967.

Citation to Opinion Below

The opinion of the Court of Appeals is as yet unreported 
and is set forth in the appendix, infra pp. 4a-lla.

Jurisdiction

The judgment of the Court of Appeals was issued on 
December 7, 1967, infra p. la. Jurisdiction of this Court 
is invoked pursuant to 28 U.S.C. §1257(3), petitioner hav­
ing asserted below and asserting here deprivation of 
rights secured by the Constitution of the United States.



2

Questions Presented

1. Whether the Eighth Amendment’s proscription 
against excessive bail applies to the States by force of 
the Fourteenth Amendment.

2. Whether the approval by the court below of peti­
tioner’s incarceration in default of the collateral required 
by a bondsman for a secured bond is consistent with the 
Eighth Amendment, on a record which demonstrates the 
likelihood of petitioner’s appearance at trial and the avail­
ability of conditions of release that would secure appear­
ance without the necessity of incarceration prior to trial 
solely by reason of his poverty.

3. Whether petitioner’s incarceration prior to trial solely 
on account of his poverty denies him equal protection of 
the laws.

4. Whether petitioner’s incarceration prior to trial de­
prives him of due process of law because, solely on the 
basis of the unregulated and arbitrary judgment of pro­
fessional bondsmen, he is being unnecessarily imprisoned 
before trial, and prejudiced in the preparation of his 
defense.

Constitutional and Statutory Provisions Involved

1. This case involves the Eighth and Fourteenth Amend­
ments to the Constitution of the United States.

2. This case also involves New York Code of Criminal 
Procedure, Section 553:

In what cases defendant may be admitted to bail 
before conviction. If the charge be for any crime



3

other than as specified in section five hundred and 
fifty-two he may be admitted to bail, before convic­
tion, as follows:

1. As a matter of right, in eases of misdemeanor;
2. As a matter of discretion, in all other cases; 

the court may revoke bail at any time where such bail 
is discretionary with the court.

Statement

This is a proceeding by which petitioner challenges the 
constitutionality of his detention in default of $1000 hail 
on charges of assaulting an officer, rescuing a prisoner, 
and a weapons offense. The officer was in plain clothes 
and pointing a gun at another citizen at the time of the 
alleged assault and other offenses. On August 23, 1967, 
Antonio Gonzalez was arrested by Detective Bernard Geik 
of the New York City Police Department. On or about 
November 9, 1967 he was indicted for violations of §§242, 
1897, 1692 of the New York Penal Law and his case is 
pending in the Supreme Court, New York County (Ind. 
#4031-67).

The Court of Appeals found the facts as contained in a 
stipulation between the parties:

“Detective Mitsch, the injured officer, was working 
as an undercover narcotics agent with the New York 
City Police Department. When he was assaulted, he 
was attempting to arrest a narcotics seller who had 
attacked him with a knife. Having disarmed the as­
sailant, the detective was holding him at gunpoint. 
Suddenly, Detective Mitsch was attacked by six as­
sailants—one of whom allegedly was the relator— 
who knocked the gun from his hand and beat him



4

about the head and body with cinder blocks and sticks. 
This resulted in his being hospitalized and incapaci­
tated for several months.

“When the relator was arraigned on August 23, 
1967, in the Criminal Court of the City of New York, 
his bail was set at $25,000. Several motions for a 
reduction of bail were made and granted. Bail was 
ultimately set at $1,000. Unable to raise $1,000 bail 
or to secure a bond for that amount, the relator sought 
a writ of habeas corpus in the Supreme Court, Kings 
County, on October 20, 1967. Justice Vincent Damiani 
dismissed that writ, saying that under the circum­
stances the bail was reasonable.

“On October 23, 1967 the relator sought another 
writ of habeas corpus in the Appellate Division, Sec­
ond Department. On October 25, 1967 a hearing was 
held before the Appellate Division. His counsel in­
formed the court that the relator was 19 years of age 
and had no previous criminal record, that he had 
come to New York from Puerto Rico three years ago, 
that he had lived with his father, brother and sister 
at 734 East 5th Street, Manhattan, for the past two 
years, that he was employed as a clerk by Mobiliza­
tion for Youth [an anti-poverty organization] at a 
salary of $45.00 per week and was attending classes 
there in remedial reading and job training, and that 
present in court was a social worker, employed by 
Mobilization for Youth, who had known relator for 
two years and who agreed to supervise relator if he 
were released. Counsel informed the court that rela­
tor had $100 which had been collected from friends 
and relatives to be used for bail, and that he was in 
jail solely because he lacked the funds necessary to 
secure a $1,000 bail bond. The Assistant District At­
torney, appearing for respondent, conceded that the



5

facts as stated by relator’s counsel were correct to 
bis knowledge. He argued, however, that the serious­
ness of the charge, the possibility of substantial pun­
ishment if relator were convicted and the fact that 
relator had only recently moved to New York from 
Puerto Rico were factors which demonstrated that 
the relator might flee if he were released without an 
adequate bond. He further argued that the issue was 
not whether the justices of the Appellate Division 
would set the same bail as had the lower courts, but 
whether the judges of the lower courts had abused 
their discretion in setting the bail at $1,000. After 
due deliberation of this case, the Appellate Division 
determined that under the circumstances of this case, 
the lower courts had not abused their discretion in 
setting bail at $1,000 and dismissed the writ.” (14a-15a)

After allowing an expedited appeal in order to consider 
federal and state constitutional questions raised in the 
lower courts, the Court of Appeals affirmed the judgment 
of the Appellate Division on December 7, 1967.

How the Federal Questions Were Raised and 
Decided Below

On August 23, 1967 petitioner was arrested and bail was 
set at $25,000 by the Criminal Court of New York County. 
September 28, 1967 petitioner’s counsel entered an appear­
ance and obtained reduction of the bail to $2,500. October 
10, 1967, a Justice of the Supreme Court of New York 
County reduced the bail to $1,500 but refused to reduce it 
further and on October 16, 1967 a Judge of the Criminal 
Court further reduced bail to $1,000. Unable to raise $1,000 
bail, or the collateral needed to secure a bond for that 
amount, petitioner sought a writ of habeas corpus in the



6

Supreme Court of Kings County on October 20, 1967 
asserting that the $1,000 bail set was excessive and denied 
petitioner due process of law and equal protection of the 
laws in violation of the Eighth and Fourteenth Amend­
ments to the Constitution of the United States. The writ 
was dismissed and petitioner’s constitutional arguments 
rejected.

On October 23, 1967, petitioner sought a writ of habeas 
corpus before the Appellate Division of the Supreme Court, 
Second Department, again asserting that he was illegally 
detained in violation of the Federal Constitution:

It is submitted that excessive bail has been set in 
violation of Article I, Section 5 in the New York State 
Constitution and of the Eighth and Fourteenth Amend­
ments to the United States Constitution. Furthermore, 
to hold Mr. Gonzalez in jail solely because of his 
poverty constitutes a denial of equal protection of 
the laws in violation of Article I, Section 11 of the 
New York State Constitution and the Fourteenth 
Amendment to the United States Constitution. To 
hold Mr. Gonzalez in jail strictly because he is under 
accusation and without reasonable proof showing that 
he would otherwise be unavailable for trial, and with­
out reasonable proof showing that he would otherwise 
be unavailable for trial, and without even a hearing 
to determine whether he would be available, consti­
tutes a deprivation of his liberty without due process 
of law, in violation of Article I, Section 6 of the New 
York State Constitution and violation of Fourteenth 
Amendment of the United States Constitution. (20a)

On October 25, 1967, the Appellate Division held a hear­
ing at which petitioner’s counsel and respondent’s counsel 
informed the court of the facts relevant to determination



7

of the character and amount of bail and argued the federal 
constitutional issues raised by the petition. On the same 
day, the court unanimously dismissed the writ and re­
manded petitioner to the custody of respondent (12a-13a).

By special permission of the Chief Judge, an expedited 
appeal was allowed and oral argument was presented to 
the New York Court of Appeals October 30, 1967.

On December 7, 1967, the Court of Appeals affirmed the 
dismissal of the writ by the court below. The court sum­
marized the constitutional challenges to his pretrial in­
carceration raised by petitioner as follows (6a) :

(1) Given facts which demonstrate a likelihood of 
appearance and the existence of nonfinancial conditions 
of release which would increase the likelihood of ap­
pearance, the lower courts required constitutionally 
excessive bail.

(2) The detention of the relator solely on account 
of his poverty deprives him of equal protection of the 
laws.

(3) Pretrial detention denied relator due process of 
law in that (a) he is punished without trial and in 
violation of the presumption of innocence without 
showing of overriding necessity and (b) he is preju­
diced at trial and deprived of fundamental fairness 
in the guilt finding and sentencing process.

The court rejected petitioner’s contention that his bail 
was “excessive” under the Eighth Amendment (10a):

. . .  we cannot say that, in the circumstances of 
this case, the lower courts abused their discretion in 
setting bail at $1,000 and in denying relator’s request 
that he be released on his own recognizance or on



8

$100 bail. The relator is accused of a vicious crime 
and is subject to a possible sentence of 13 years in 
prison. He bas been in New York for only three 
years. While the relator contributes to the support 
of his father, brother and sister, there is no evidence 
that they are dependent upon relator for their support.

In sum, although he has certain roots in the com­
munity, it was well within the court’s discretion to 
determine that those roots were not strong enough to 
assure relator’s appearance for trial if he were re­
leased on his own recognizance or on $100 bail.

Because it determined petitioner’s Eighth Amendment 
claim adversely to him and held $1,000 bail not excessive 
the court declined to “pass upon” his contention that his 
detention violated the Due Process and Equal Protection 
Clauses of the Fourteenth Amendment. The Court appar­
ently was of the opinion that if bail is not excessive under 
the Eighth Amendment no due process or equal protec­
tion claims could be maintained:

The relator also contends that the setting of money 
bail in excess of what he can afford when a reasonable 
alternative exists for insuring his presence denies 
him due process and equal protection of the law. We 
need not pass upon this contention since we have 
concluded that the lower courts did not abuse their 
discretion in determining that $1,000 hail was neces­
sary for assuring the relator’s presence.
Accordingly, the order appealed from should be af­
firmed (11a).



9

REASONS FOR GRANTING THE WRIT 

Introduction

In recent years, the American money bail system has been 
the subject of increasing criticism and concern among the 
informed public.1 More than any other aspect of the crimi­
nal process, our system of conditioning release prior to 
trial on execution of a secured bond,—a system adminis­
tered largely by professional bondsmen—has aroused out­
rage and criticism. The nation’s chief prosecutor has char­
acterized the money bail system, which of all civilized 
nations only the Philippines shares,2 as “cruel and illogi­
cal.”3 Judges,4 * scholars,6 administrators6 and private

1 At least two national conferences have been organized to consider all 
aspects of the bail system, a reflection of that widespread concern. See, 
Proceedings of the Conference on Bail and Indigency, 1965 U. 111. L. 
Forum, # 1 ; National Conference on Bail and Criminal Justice, Proceed­
ings and Interim Beport (1965) [hereinafter cited as National Bail Con­
ference]; cf. Conference Proceedings, National Conference on Law and 
Poverty (1965).

2 National Bail Conference, p. 320.
3 Address by the Honorable Robert F. Kennedy, Attorney General, 

National Bail Conference 297 (1965).
4 Botein, The Manhattan Bail Project: Its Impact on Criminology and

the Criminal Law Processes, 43 Tex. L. Rev. 319 (1965) (an approving 
commentary upon the first movement which succeeded in translating criti­
cism into reform ); see also Justice Botein’s address to the National Con­
ference on Bail and Criminal Justice, National Bail Conference 18; 
McCree, Bail and the Indigent Defendant, 1965 U. 111. L. Forum 1 (the 
inadequacies of money bail led the writer and other United States District 
Judges sitting in the Eastern District of Michigan to establish a success­
ful release-on-recognizance program).

6 Foote, The Coming Constitutional Crisis in Bail, 113 U. Pa. L. Rev. 
959, 1125 (1965) (a reexamination of the meaning of the Eighth Amend­
ment’s prohibition of excessive bail in an historical perspective, and an 
inquiry into the relationship between the proper constitutional standards 
and current bail abuses) [hereinafter cited as Crisis in Bail]; Allen, 
Poverty and the Administration of Federal Criminal Justice, Beport of 
the Attorney General’s Committee on Poverty and the Administration of



10

researchers* 6 7 have concurred in questioning both the opera­
tion, the assumptions, and the constitutionality of the 
money bail system, and in calling for its reform.

Recent writings, for example, agree that monetary bail 
does not even perform well its function of increasing the 
likelihood of appearance at trial;8 that in most cases—as 
is shown dramatically in this case—the decision whether 
an accused will be released prior to trial is delegated to 
the unregulated discretion of a professional bondsman 
whose decision to release an accused is unrelated to the 
likelihood of flight, or to constitutional requirements, and 
relates only to profit motive;9 that the cost of pre-trial 
imprisonment in terms of time, public funds, employment, 
education, and human suffering is staggering;10 and that

Federal Criminal Justice, 58-89 (1963); Ares, Sail and the Indigent Ac­
cused, 8 Crime and Delin. 12 (1962).

6 Mann, 1965 U. 111. L. Forum 27-32 (bail bonds totally obsolete and 
represent the “tilted scales of justice,” in the words of the Chief Proba­
tion and Parole Officer of the St. Louis, Mo., Circuit Court for Criminal 
Causes) ; Ares, Rankin and Sturz, The Manhattan Bail Project: An  
Interim Report on the Use of Pre-Trial Parole, 38 N.Y.U.L. Rev. 67 
(1963) ; Sills, A Bail Study for New Jersey, 87 N.J.L.J. 13 (1964).

7 McCarthy and Wahl, The District of Columbia Bail Project; An  
Illustration of Experimentation and a Brief for Change, 53 Geo. L.J. 
675 (1965); Goldfarb, Ransom—A  Critique of the American Bail System 
(1965); Freed & Wald; The Bail System of the District of Columbia 
(Jr. Bar Sec., D. C. Bar Ass’n. 1963).

8 Freed & Wald, Bail in the United States: 1964, 49-55; Ares, Rankin 
and Sturz, The Manhattan Bail Project: An Interim Report on the Use 
of Pre-trial Parole, 38 N.Y.U.L. Rev. 67, 90 (1963); Note, Bail: An  
Ancient Practice Reexamined, 70 Yale L.J. 966 (1961).

9 See Report of the 3rd February 1954 Grand Jury  of New York 
County, New York to Honorable John A. Mullen at 2-3; Bail in the 
United States 22-38; Report of the May, 1960 County Grand Jury of 
the Circuit Court of Jackson County, Missouri; Bail or Jail, Criminal 
Court Committee of the Ass’n. of the Bar of the City of New York, 19 
The Record 11 (Jan. 1964).

10 See Freed & Wald 39-48; National Bail Conference 63-65; Goldfarb, 
No Room in the Jail, The New Republic, March 5, 1966, 12; Foote,



11

the bail setting process is commonly abused to punish prior 
to trial, to give an accused “a taste of jail,” or “to make an 
example.”11 Criticism, however, has not been limited to 
the operation of the present system. Commentators have 
questioned the money bail system on constitutional grounds, 
including those raised in this petition.12

One might suppose that the appearance of obviously 
substantial 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 constitu­
tional standards by this Court before the present day. But 
in this area lower courts act in a constitutional vacuum. 
According to Professor Foote “there is not a single intel­
lectually respectable judicial decision” on the question of 
application of the bail system to an indigent, National Bail 
Conference, p. 227. If this judgment is correct, it reflects 
only that appellate courts rarely are accorded the oppor­
tunity to grapple with the principles which spell the differ­
ence between liberty and jail for thousands of defendants 
each day, many of whom are never convicted of any crime 
or sentenced to serve time in jail. The reason for the dirth 
of appellate decisions relating to pre-trial release appears 
to be the impracticability of resort to protracted appellate

Compelling Appearance in Court: Administration of Bail in Philadel­
phia, 102 IT. Pa. L. Rev. 1031 (1954) [hereinafter cited as Philadelphia 
Bail Study]; Foote, A Study of the Administration of Bail in New York 
City, 106 IT. Pa. L. Rev. 693 (1958) [hereinafter cited as New York Bail 
Study] ; Rankin, The Effect of Pre-Trial Detention, 39 N.Y.U. L. Rev. 
641 (1964).

11 Hearings on S. 1357, S. 646, S. 647 and S. 648 Before the Sub­
committee on Improvements in Judicial Machinery of the Committee on 
the Judiciary, 89th Cong., 1st Sess. 3, 66, 130 (1965); Note, Preventive 
Detention Before Trial, 79 Harv. L. Rev. 1475 (1966) New York Bail 
Study 705; Philadelphia Bail Study 1039.

12 Crisis in Bail 1126 et seq.



12

procedures during a time before criminal trial moots the 
constitutional issues presented. Whatever the reason, 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 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 consideration above all 
others should move the court to consideration of the ques­
tions raised by the petition.

It has been over fifteen years since a bail case has sur­
vived for this Court’s examination.13 The resources re­
quired to be mustered to bring such a case here are far 
beyond those of most counsel for the indigent accused. 
Moreover, it is highly unusual for the lower courts to 
process the bail proceedings and appeals therefrom with 
the speed displayed in the present case. That expedited 
proceeding has resulted in a significant opinion of the New 
York Court of Appeals denying federal claims of the most 
fundamental significance and widespread application. If 
this Court is ever to consider those enormously important 
federal issues, it should grant certiorari in this case.

13 Stack v. Boyle, 342 U.S. 1 (1951), survived only because this Court 
granted an expedited hearing of the application for bail pending cer­
tiorari, granted certiorari shortly thereafter and reversed. An expedited 
hearing is requested by petitioner in the accompanying motion.



13

I.

Certiorari Should Be Granted to Decide the Impor­
tant Question W hether the Fourteenth Amendment 
Makes Applicable to the States the Eighth Amendment’s 
Proscription Against Excessive Bail.

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 Rights 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. Waiwwright, 372 IT.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); Mapp 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). 
Only this term the Court agreed to consider if the Sixth 
Amendment’s guarantee of a jury trial applies to the states, 
Duncan v. Louisiana, O.T., 1967, No. 410. The excessive 
bail clause of the Eighth Amendment is the most significant 
guarantee of the Bill of Rights remaining to be considered. 
Petitioner contends that the right against pre-trial deten­
tion upon which the Eighth Amendment rests is a critical 
aspect of the “liberty” protected by the due process clause



14

of the Fourteenth Amendment against deprivation by 'the 
states. As this Court has not heretofore considered whether 
the excessive bail clause of the Eighth Amendment is ab­
sorbed in the Fourteenth and, if so, the character and extent 
of its application, this petition plainly presents a question 
appropriate for exercise of the certiorari jurisdiction.

Certiorari is particularly appropriate in the present case 
because of the extraordinary effort and resources required 
to present to this Court issues concerning the constitution­
ality of the money bail system as applied to an indigent. 
Such issues are ordinarily mooted by the supervention of 
trial before they can be brought to this Court. While reso­
lution of the questions raised by the petition go to the heart 
of criminal law administration, this Court’s opportunities 
to determine constitutional rules governing pre-trial deten­
tion are rare. Fortuities of timing in the present litigation 
present a unique occasion for the Court to determine issues 
now decided without authoritative constitutional guidance 
every day of every year in lower courts the length and 
breadth of the nation.

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 recent 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



15

history by the struggle to assure the right of pre-trial re­
lease.14 * In deciding to apply specific guarantees of the 
Bill of Rights to state criminal proceedings, the court has 
emphasized the significance accorded these rights in the 
heritage of English law, e.g. Klopfer v. North Carolina, 386 
U.S. at 223-26; Pointer v. Texas, 380 U.S. at 403-05.

Even without the benefit of “incorporation” notions, how­
ever, one could not suppose without historical and practi­
cal heedlessness that the Fourteenth Amendment’s prohi­
bition against the deprivation of liberty without due process 
of law imposed no restraint upon a state’s power to im­
prison an individual on criminal charges before those 
charges had been proved and the accused’s defenses heard 
at judicial trial. It would be worse than heedless to suppose 
that due process of law could he said to suffer a system in 
which the modern American citizen might languish for 
long periods in jail without trial. Pervasive state constitu­
tional recognition of the bail right supports the finding that 
the Eighth Amendment’s bail clause is absorbed by the re­
quirement of the Fourteenth that a state’s criminal pro­
cedure conform to at least generally accepted minimum 
standards of fairness.16 Ferguson v. Georgia, 365 U.S. 570 
(1961).

14 Well before the Bill of Bights (1688), 1 W. & M. sess. 2, ch. 2, 
reciting that “excessive Baile hath beene required of Persons committed 
in Criminall Cases to elude the Benefit of the Lawes Made for the 
Liberty of the Subjects,” and “That excessive Baile ought not to be 
required,” the importance of the bail right had been recognized and its 
preservation assured by statute. See Crisis in Bail 965 et seq.; 1 Stephen, 
A History of the Criminal Law of England, 233-243 (1883); 2 Pollock & 
Maitland, The History of English Law 582-587 (2d ed. 1952). Indeed,
protection of the bail right was the immediate purpose of the celebrated 
Habeas Corpus Act of 1679 whose descendant is the Habeas Corpus Sus­
pension Clause of the federal and virtually all state constitutions.

16 Bail: An Ancient Practice Reexamined, 70 Yale Law Journal, 966- 
977, Appendix (1961).



16

II.

Certiorari Should Be Granted to Determine Whether 
the Approval by the Court Below of Petitioner’s Pre-trial 
Incarceration in Default of Bail Offends the Eighth 
Amendment’s Proscription Against Excessive Bail.

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.

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, only 
one of which is consistent with its historical context.16

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 
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 and the Amendment 
rendered meaningless for want of application. Such a con- 16

16 Crisis in Bail 969 et seq.



17

struction—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” Marbury 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 unusual punishment 
have been incorporated in the Fourteenth Amendment and 
applied to protect against legislative action. Robinson v. 
California, 370 U.S. 660 (1962).

A second possible construction would be that bail cannot 
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 always retains the 
power to deny bail altogether. Such a construction would 
also render the Eighth Amendment excessive bail clause 
something unique and callously futile in our constitutional 
system:

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)

A great deal of historical data supports the conclusion 
that a third possible construction—that the excessive bail 
clause creates a federal constitutional right to pre-trial re­
lease—is far more likely than either of the two dryly logical 
alternative 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



18

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.” 17 
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 Eiver 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 and the 
background against which it was drafted also supports this 
conclusion, Crisis in Bail pp. 965-71.

Stack v. Boyle, 342 U.S. 1 (1951) is this Court’s only 
opinion on what constitutes excessive bail. It was decided 
both before the landmark decisions under the equal protec­
tion clause of Griffin v. Illinois, 351 U.S. 12 (1956) and 
Douglas v. California, 372 U.S. 353 (1963), and before the 
growth of the extensive criticism of the bail system de­

17 Crisis in Bail at 972.



19

scribed supra pp. 9-11. Further, the significance of Stack 
as a construction of the Eighth Amendment and a guide to 
lower courts in its application is severely diminished by the 
unusual factual circumstances of that case—particularly 
the incredible bail figure set and its disproportion in rela­
tion to figures usually set for offenses of equal gravity.

Nevertheless, we believe that Stack suggests certain 
Eighth Amendment principles whose fuller development 
and firm establishment can be advanced by their appli­
cation to this case. The Stack opinion takes the view that 
the sole permissible function of monetary bail is to assure 
the accused’s presence at trial. “Bail set at a higher figure 
than an amount reasonably calculated to fulfill this pur­
pose is ‘excessive’ under the Eighth Amendment.” (Id. at 
5). “Since the function of bail is limited, the fixing of bail 
for any individual must be based upon standards relevant 
to the purposes of assuring the presence of that defend­
ant” Ibid. Stack thus suggests the invalidity of a bail de­
termination if (a) the amount set or the form of security 
required is more onerous than could reasonably be thought 
necessary to induce the accused’s presence at trial, or (b) 
in setting the amount or form of security, inadequate in­
dividual consideration is given to the circumstances of 
each particular defendant.

The administration of the state’s bail system in the pres­
ent case fails to conform to either standard, properly in­
terpreted. Petitioner is detained solely because he cannot 
afford the price of freedom, which in this case is solely the 
collateral required (under no obligation or explicit legal 
provision of the state) by a bondsman; petitioner does 
have sufficient funds to pay the $50 lawful premium, New 
York Insurance Law §331(4). There is no evidence of any 
legitimate individual circumstance as to support a finding 
that petitioner would not appear if released on his recogni­



20

zance, on $100 cash bail, or subject to non-finaneial condi­
tions—but that he would appear if he were able to post a 
$1,000 secured bond.

On the contrary, all the evidence points to a likelihood 
of appearance. Petitioner’s character and roots in the com­
munity are inconsistent with flight unless anyone charged 
with a serious crime is to be considered more likely than 
not to flee. The accused is 19 years old. For the past two 
years he and his brother and sister have lived with their 
father at the same address on New York’s lower East Side. 
Petitioner’s mother is deceased. At time of the events lead­
ing to his arrest he was working as a clerk for Mobiliza­
tion for Youth, Inc., an anti-poverty organization with of­
fices on the lower East Side, whose attorneys are among 
those who represent him. With his eranings of $45 per 
week he helped his father support the younger children in 
the family. He also attended classes in remedial reading 
and job training sponsored by Mobilization for Youth in 
order to improve his prospects for future employment. 
He has no criminal record.18 It has been stipulated by the 
parties that a social worker, in the employ of Mobilization 
for Youth, who has known petitioner for two years, agreed 
to supervise him if he were released on his recognizance or 
$100 cash bail.

That bail is excessive here is strongly suggested by the 
fact that the pre-trial parole recommendation standards 
presently in operation in the City of New York are more 
than met by this petitioner. Appended to the petition is a

18 Whether the accused’s involvement in the instant prosecution amounts 
to a criminal violation is, of course, an issue for the trial jury and not 
for a bail setting court. One of the issues at trial, however, will be whether 
Mr. Gonzalez knew that Detective Mitsch was a police officer, or reason­
ably believed that he was a drug addict who was attempting to rob another 
person at gun point. This is not a case where conviction is, by any means, 
assured.



21

copy of form No. 40-43-167 Rev. of the New York Depart­
ment of Probation, which administers release on recogni­
zance standards in the courts of the City of New York Ap­
pendix B, infra p. 24a. The form reveals that a score of 
five points on the basis of employment, residence, and 
similar considerations is sufficient to result in a recom­
mendation of such release. Read in light of the stipulated 
facts petitioner has over ten points, or twice that neces­
sary for release on parole. Thus, the only explanation for 
the denial of release in this case appears to be that peti­
tioner is charged with serious crime. But money bail re­
quirements may not constitutionally be substituted for 
adjudication of guilt at trial, or made the sole basis for 
application of a financial release test to an indigent.

One additional point must be stressed. Bail in this case 
is $1,000. The premium for such a bond is $50, New 
York Insurance Law §331(4). The lower courts thus ap­
parently had no great concern for the likelihood of flight, 
setting bail as they did in an amount that could statutorily 
be made by any man with $50 in his pocket. Petitioner has 
$100 in savings and contributions by friends. But under 
New York law, in these circumstances, petitioner’s release 
is “entirely up to the bondsman, who may be satisfied with 
the . . . [statutory] fee or demand an additional under-the- 
table sweetener, or require collateral less than, equal to or 
greater than the amount of the bond, or simply refuse to do 
business with the defendant at all” Crisis in Bail, 1160. As 
one federal judge has put i t : “The effect of such a system 
is that the professional bondsmen hold the keys to the jail 
in their pockets” Parnell v. United States, 320 F.2d 698, 
699 (D.C. Cir. 1963). The effect of the $1,000 bond de­
manded of petitioner is simply to empower the private 
bondsman, a business man operating pursuant to self- 
interest, to decide whether petitioner shall be jailed or free.



22

On Ms decision alone, petitioner, by reason of Ms poverty, 
is now imprisoned. Any interest government has in keep­
ing appellant under lock and key for more than the ap­
proximately four pre-trial months he has already served 
lies totally in the hands of this private businessman, whose 
judgment as to who should be released is unregulated by the 
state and whose abuses, in New York City, are legion. See 
Bail in the United States: 1964 35. One thing is clear: this 
delegation of the critical decision to the bondsman does not 
result in a delegation of public policy, or of the Constitution, 
along with it.

The reduction of bail from $25,000 to $1,000 by the New 
York courts obviously reflects a belief that there is no 
serious risk of flight present here, and demonstrates beyond 
peradventure that this impoverished petitioner is detained 
solely because of the reflex response of the antiquated 
money bail system. There can be no other explanation for 
the continuous reduction of the bail, unless the courts below 
sought only to immunize themselves from a charge of ex­
cessiveness by lowering the absolute amount in the knowl­
edge that that amount made no difference—a cynical as­
sumption which we do not believe should be indulged.

Given the purpose of bail, to secure pre-trial liberty rather 
than detention, the state should be required to come forward 
with some specific evidence to show that it is likely a de­
fendant may flee before a bail figure which results in de­
tention is sustained. In the instant case, aside from the 
bare accusation, the only factor which has been suggested 
is that prior to three years ago petitioner lived in Puerto 
Rico. Given the affirmative evidence of petitioner’s roots 
in New York, including two years residence with his family 
at the same address, detention on the basis of this one 
added factor is untenable; it would effectively set up a pre­
sumption against release of Puerto Ricans residing in



23

New York, and charged with any substantial offense, re­
gardless of their roots in the state.19

Under the law of New York, if the lower court had felt 
that there was evidence that the accused would not present 
himself at the time of trial, it could have denied bail 
altogether. N.Y. Code of Grim. Proc. §553. Evidentally 
this was not the judgment of those courts below because bail 
has been set. In point of fact the accused has remained 
in jail not because if released he can be expected to flee 
(if that were the case the bail would be far more than 
$1,000) but because he is too impecunious to afford the 
ransom which the state—through the agency of a profes­
sional bondsman—seeks to extract.

In view of the historical background of our bail system, 
its purpose, and fundamental American constitutional prin­
ciples against discrimination on the basis of poverty, we 
submit that bail is excessive when a financial condition 
which results in detention is exacted for pre-trial release 
when nonfinancial conditions would accomplish the same 
likelihood of appearance at trial. In this case, it has never 
been suggested that the social worker who has known peti­
tioner for two years and who stated that he would supervise 
petitioner if he were released prior to trial would not per­
form this function. Where the evidence shows that there 
are non-monetary conditions of release which will result 
in appearance without detaining an accused, the courts

19 We call the court’s attention to the address of Judge Wade H. 
McCree, Jr., of the United States District Court of the Eastern District 
of Michigan published in the proceedings of the National Conference on 
Bail and Criminal Justice, pp. 52-53. Judge McCree stated:

I  might observe further that in the Eastern District of Michigan we 
sit in a courthouse which is five minutes from the tunnel which 
leads to Canada and 15 minutes from a bridge which connects with 
the same country. We have found this not to be a complicating factor.



24

should be bound by the Eighth Amendment to choose them.20 
Thus, petitioner’s circumstances present a particularly 
propitious case in which this Court may examine—free of 
the necessity for reviewing complex judgments of fact and 
probability—whether the Eighth Amendment does or does 
not prohibit the entirely purposeless incarceration of an 
indigent for the sole reason of indigency.

To petitioner’s contention that the bail conditions set 
here were unconstitutionally more onerous than reasonably 
necessary to assure his appearance, the Court of Appeals 
answered (11a):

In sum, although he has certain roots in the com­
munity, it was well within the court’s discretion to 
determine that those roots were not strong enough to

20 The federal Bail Reform Act of 1966, 18 U.S.C. §3146, is perhaps 
the best existing model of a pre-trial release system in use. I t  was pre­
sented to the Court of Appeals only as exemplary of the options open to 
a bail setting court. The Act provides that, in noncapital cases, a person 
charged with a crime shall be released on his personal recognizance or 
upon the execution of an unsecured appearance bond. I f  the judicial 
officer expressly determines that such a release will not reasonably assure 
the appearance of the person, he may either in lieu of or in addition to 
the above methods impose another condition or combination of conditions 
which will assure appearance—resorting to the least stringent that will 
accomplish the desired purpose. These conditions include:

(1) placing the person in the custody of a designated person or or­
ganization agreeing to supervise him;

(2) placing restrictions on the travel, association, or place of abode of 
the person during the period of release;

(3) requiring the execution of an appearance bond in a specified amount 
and the deposit in the registry of the court, in cash or other security 
as directed, of a sum not to exceed 10 per centum of the amount of 
the bond, such deposit to be returned upon the performance of the 
conditions of release;

(4) requiring the execution of a bail bond with sufficient solvent sureties, 
or the deposit of cash in lieu thereof; or

(5) imposing any other condition reasonably necessary to assure ap­
pearance as required, including a condition requiring that the per­
son return to custody after specified hours.



25

assure relator’s appearance for trial if he were re­
leased on Ms own recognizance or on $100.00 bail.

It is unreal, however, to talk in terms of lower court 
discretion. In this case the bail decision has been delegated 
to various agents of insurance companies. They could ac­
cept the $50 premium which he can pay or require col­
lateral which he can not pay, solely at their caprice. Such 
discretion as many have been exercised here permits an 
arbitrary, unregulated, and private business judgment to 
determine petitioner’s freedom. In addition, the facts show­
ing whether or not petitioner is a good risk are contained 
in the stipulation which is part of the record. These were 
also the facts before the lower courts. As is the practice in 
bail determinations, no actual testimony was before those 
courts. They had no opportunity to observe demeanor on 
the stand. Since petitioner contends that to incarcerate 
him on the stipulated facts is to require constitutionally 
excessive bail, a question of constitutional law—-not of 
lower court discretion—is plainly presented, see Stack, 
supra at 6.

Finally, petitioner asks this Court—as he asked the Court 
of Appeals—to set the proper constitutional standard: that 
an indigent may not be required to post a secured bond 
which he cannot make when an acceptable nonfinaneial 
condition of release is available to facilitate pre-trial re­
lease as well as protect the state’s interest in appearance. 
As this standard has not been articulated by this Court 
or by the New York Courts, it is difficult to understand 
how the lower courts could have exercised any informed 
discretion in committing the issue of petitioner’s pre-trial 
liberty to the bondsman’s judgment.



26

III.

Certiorari Should Be Granted to Determine Whether 
Petitioner’s Incarceration Prior to Trial Solely on Ac­
count of His Poverty Denies Him Equal Protection of 
the Laws.

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
view) ; Draper v. Washington, 372 U.S. 487 (1963) (denial, 
on trial court finding that appeal is frivolous, of free crimi­
nal trial transcript necessary 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



27

ings). See also Anders v. California, 386 U.S. 738 (1967); 
Roberts v. Lavallee, 19 L.ed.2d 41 (1967); Long v. District 
Court of Iowa, 385 U.S. 192 (1966).

It cannot be denied that there is an apparent inconsist­
ency between these decisions and the administration of the 
money bail system which petitioner has challenged. Exam­
ination of this inconsistency by the Court is overdue.21 It is 
ironic that we freely provide an indigent with transcripts 
and lawyers after conviction but deny him liberty before 
trial solely because of poverty. Such a result converts the 
bail system into a device which detains as many poor per­
sons 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. It is an invidious 
discrimination, and denies petitioner in the most obvious 
and offensive way his constitutional right to equal protec­
tion.

It bears repeating that, under the laws of the State of 
New York, the lower courts could have denied petitioner 
bail if there was any evidence suggesting that Mr. Gon­
zalez would not be likely to appear. N. Y. Code of Criminal 
Procedure §553. Once bail is set, to set a figure which

21 The New York Court of Appeals decided that it “need not pass 
upon” petitioner’s equal protection and due process challenges to the 
money bail system because it found that the bail set was not constitu­
tionally excessive. Such a view of the due process and equal protection 
clauses is misconceived. Regardless of whether bail is “excessive” under 
the Eighth Amendment, the questions remain:

(A) whether, consistently with the equal protection clause, a state may 
condition the right of pre-trial release upon the possession of suffi­
cient funds to make whatever bond is set, thus denying indigents 
release by sole reason of their poverty; and

(B) whether, consistently with the due process clause a state may adopt 
a system under which the decision to detain or release a man 
during the pre-trial period is relegated by a financial test to the 
arbitrary and unregulated regime of professional bondsmen.



28

cannot be met only results in detaining the poor, not those 
likely to flee. In Griffin, supra and Douglas, supra, the 
state urged that free transcripts and appointment of at­
torneys could be denied to the poor because there is no 
constitutional right to appeal. The Court rejected these 
contentions, holding that as long as the state granted access 
to the appellate courts it could not be denied to some per­
sons discriminatorily on the basis of wealth. In light of 
these decisions, we fail to see how the state can justify 
withholding pre-trial liberty from the poor man once it has 
been determined, by setting bail in the first place, that his 
release is justified.

The only Justice of this Court who has voiced his views 
on the application of the Court’s equal-protection cases to 
the bail system has expressed agreement with petitioner’s 
position. Considering the impact of the equal protection 
clause on an indigent’s request for release on his own 
recognizance pending appeal from conviction, Mr. Justice 
Douglas 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 free­
dom?” 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 because of indigence. Instead, under our consti­
tutional system, a man is entitled to be released on ‘personal 
recognizance’ where other relevant factors make it rea­
sonable to believe that he will comply with the orders of 
the Court.” Bandy v. United States, 82 S. Ct. 11, 13 (Doug­
las, J. 1961). We venture to suggest that both the question 
and the answer put by Justice Douglas at least are equally 
compelling in a case, like the present one, where the right 
to pre-trial liberty is at issue; and we urge that certiorari



29

be granted so that the full Court may consider and express 
its views on the matter.

That the system of conditioning pre-trial release on finan­
cial bail is a long-suffered discrimination traceable to the 
days of medieval unconcern for the impoverished does not 
insulate it from condemnation under the Fourteenth 
Amendment. The argument from tradition

reflects a misconception of the function of the Constitu­
tion and this Court’s obligation in interpreting it. The 
Constitution of the United States must be read as em­
bodying 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 (M.D. Ala. 
1966) (three-judge court)).

Recently, the Court struck down Virginia’s time-honored 
poll tax of $1.50 as a prerequisite to voting in state elec­
tions on the ground that “Voter qualifications have no rela­
tion 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 “irrele­
vant factor” the Court addressed itself to the contention 
that the poll tax was “an old familiar form of taxation” 
and rejected history as sufficient to support 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 con­



30

stitutes equal treatment for purposes of the Equal Pro­
tection Clause do change (emphasis in original).

Thus, notwithstanding ancient abuses against the poor, 
whether 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 is a substantial question. 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 rele­
vant to the purpose of assuring the presence of that de­
fendant.” Stack v. Boyle, 342 U.S. 1, 5 (1950) (emphasis 
added). Fixing bail for petitioner in an amount which he 
cannot pay because of poverty tells the poor that justice is 
for sale. It is not basing release upon “standards relevant” 
to the purpose of assuring presence, but denying release in 
violation of the Constitution of the United States.

IV.

Certiorari Should Be Granted to Determine if  Peti­
tioner Is Being Deprived of Due Process of Law.

That pre-trial detention imposes punishment is obvious. 
Stack v. Boyle, 342 U.S. 1, 4 (1951); and cf., Bitter v. 
United States, 19 L. ed. 2d 15 (1967). A jailed accused loses 
his liberty, the most precious of rights, as completely as 
does any convict. In addition, petitioner has been sub­
jected to severance of family relations, loss of pay, loss 
of employment, loss of educational opportunity, and the 
normally inhumane conditions in available pre-trial deten­
tion facilities—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



31

of living is almost certain to rise.” 22 As the National Con­
ference on Bail and Criminal Justice put i t :

“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 con­
victed criminal serving a sentence” (Bail in the United 
States: 1964, 43.)23

It is quite possible that the only imprisonment an in­
digent accused may suffer is that before trial while sup­
posedly presumed innocent for after serving his pre-trial 
jail term he may be acquitted or, if convicted, have his case 
concluded by a disposition that does not include imprison­
ment. A recent project of the Vera Institute of Justice ob­
tained the release of persons who had initially been held 
in custody on high bail:

Five percent of the persons released through bail 
reevaluation failed to appear for trial. Of the 95% 
of the released persons who did return for trial, 52%

22 Other common restrictions of the detention jail are censorship of 
mail, restrictions on newspapers and periodicals, a frequently total prohi­
bition on the use of the telephone, inadequate facilities for confidential 
conversations with lawyers and others, including restricted visiting privi­
leges only for close relatives and restriction of visits to times whieh are 
particularly inconvenient to members of the working class. Foote con­
cludes 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 deliberately 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 ac­
cused ‘a taste of jail’.” Crisis in Bail, 1144-45.

23 I t should be noted that society pays dearly for punishing the accused. 
Pre-trial detention cost the federal government $2 million in 1963. In 
New York City alone costs run to $10 million per year. Bail in the 
United States: 1964, 40-41.



32

were acquitted or had their charges dismissed and only 
20% were ultimately sentenced to prison terms.” (Let­
ter from Mr. Herbert Sturz, Director, to Mr. Michael 
Meltsner, attorney for petitioner, dated November 14, 
1967 and attached to Petitioner’s Reply Brief in the 
New York Court of Appeals.)

To force one not convicted of crime to suffer punishment 
of this magnitude for no reason other than poverty violates 
fundamental principles of due process. Unless pre-trial 
freedom is assured “the presumption of innocence, secured 
only after centuries of struggle, would lose its meaning” 
Stack v. Boyle, 342 U.S. 1, 4 (1951). Our system of justice 
does not permit incarceration because of generalized specu­
lation of a risk of flight: ‘that is a calculated risk which 
the law takes as the price of our system of justice . . . 
[T]he spirit of the procedure is to enable [defendants] to 
stay out of jail until a trial has found them guilty” (Id. 
at 8). (separate opinion.)

The due process implications of the money bail system 
are even more serious where detention is at the whim of 
the bondsman. As petitioner has enough funds to pay the 
premium for a bond of $1,000, see supra, p. 19, the dis­
abilities he has suffered and continues to suffer depend 
solely on whether a professional bondsman chooses to exer­
cise his absolute discretion to require collateral or not. The 
bondsman has unlimited power to refuse to write a bond 
for any individual for any reason, however capricious and 
unrelated to the concerns of the public. As there is no 
supervision over the amount which is demanded as col­
lateral, a judge fixing bail in the amount of $1000 may as­
sume that the defendant is faced only with the legal pre­
mium of $50, while the reality may be that he will be re­
quired by the bondsman to put up property very nearly



33

approximating the entire amount of the bond. The bonds­
man thus becomes the arbiter of pre-trial release, not the 
judge. Without any legal or social duty to grant a bond, 
his motivation at best is simply “a matter of dollars and 
cents;” at worst, a compound of every arbitrary and dis­
criminatory urge to which unlimited and irresponsible 
power is prey.

Pre-trial detention also affects the fact-finding, guilty- 
determining, punishment-setting processes of the criminal 
law. Right to counsel, for example, one of the fundamental 
rights of one accused of crime is of limited value if a host 
of subtle conditions are permitted to prejudice the working 
of the adversary system against one detained prior to trial. 
See Bitter v. United States, supra. An indigent defendant 
who cannot conduct a pre-trial investigation is seriously 
disadvantaged, see Stack v. Boyle, 342 U.S. 1, 4 (1951). 
Moreover, as recognized by the Attorney General’s Com­
mittee on Poverty and Administration of Justice, in many 
cases it is only the accused who can locate and induce re­
luctant witnesses to come forward.24 The petition for writ 
of habeas corpus states that “unless Mr. Gonzalez is free 
pending the prosecution, it will be difficult or impossible 
to locate certain witnesses who may be necessary for his 
defense” (19a).

Professor Foote has discussed a number of less obvious 
consequences of pre-trial detention :25

1. That the detained prisoner cannot hold a job is 
“the principle explanation . . . which demonstrates that 
defendants fare far worse in the sentencing process 
particularly in obtaining probation than bailed defend­
ants.”

24 Poverty and The Administration of Federal Criminal Justice, 75, 76.
26 Crisis in Bail 1146-48.



34

2. The expectations of all those connected with the 
administration of criminal justice—police, jailers, 
prosecutors, defense counsel, judges, probation officers 
—prejudge the jail case as a failure, and this pre­
judgment colors their actual disposition; for example, 
a probation officer assigned to write up a jail case 
has a bias before he begins because of the defendant’s 
jail status. If this is true, then the statistics showing 
that jailed defendants do in fact fare comparatively 
badly in the disposition process may in part demon­
strate nothing more than the operation of self fulfilling 
prophecy.

3. The fact that the defendant himself shares this 
expectation of failure tends, along with the fact that 
he will generally have to find a new job, to reduce the 
chances of his successfully completing a period of 
probation.

4. The quality of representation which a jail de­
fendant obtains is adversely affected by pre-trial de­
tention because, instead of the defendant coming to his 
office, counsel must go to the jail to see the defendant, 
often under conditions unfavorable to privacy and 
mutual dignity. The result is a reduction in the fre­
quency of pre-trial consultation below that which is 
desirable and which would take place where the de­
fendant is on bail and able to come to the lawyer’s 
office.

5. The defendant’s prospects for rehabilitation turn 
in part upon his outlook towards the fairness of the 
administration of justice, which is adversely affected 
by his detention experience. A defendant’s attitudes 
are crystallized in prison, where the most obvious 
lesson of the pre-trial period is that if you have money 
you go out, i.e., that justice is for sale. Those familiar



35

with detention prisons are aware that this cynical 
attitude dominates the value culture of the jail.

Empirical data suggests a very strong association be­
tween these unfavorable effects of pre-trial detention and 
higher sentences and fewer releases on probation. See 
Crisis in Bail at 960; Philadelphia Bail Study, 1052, table 
1; Neiv York Bail Study, 726-727; Bail in United States, 
1964. One study demonstrated that of a group of New 
York prisoners in 1964, three times as many jailed defen­
dants were sentenced to prison as those enlarged on bail 
during the pre-trial period.26 Twice as many bailed defen­
dants as jailed defendants were not convicted; of those 
convicted five times more bailed than jailed defendants did 
not receive prison sentences. The author concluded that 
these findings provide strong support for the notion that a 
causative relationship exists between detention and un­
favorable disposition.

Given the prejudice suffered by detention prior to trial 
and conviction, petitioner cannot be incarcerated solely by 
reason of poverty and the arbitrary decisions of profes­
sional bondsmen. Such a system-inefficacious at best and 
easily perverted to permit the imposition of sanctions 
against those who, though reasonably likely to return for 
trial, are considered worthy of punishment by prosecutors 
or magistrates or poor financial risks by bondsmen—can­
not claim in this case the support of any legitimate state 
interest sufficient to offset the pains and prejudices which 
it imposes.

26 Rankin, The Effect of Pre-trial Detention, 39 N.Y.U.L. Rev. 641 
(1964).



36

CONCLUSION

W herefore, p e ti t io n e r  p ra y s  th a t  th e  w r i t  o f c e r t io ra r i  
be g ra n te d  an d  th e  cause ex p ed ited  in  a  m an n e r w hich is 
ju s t  an d  p ro p e r .

Respectfully submitted,

J ack Greenberg 
Michael Meltsner

10 Columbus Circle 
New York, New York 10019

H arold J . R othwax 
Martin Spiegel

320 East Third Street 
New York, New York 10009

Attorneys for Petitioner

A nthony G. A msterdam 
H aywood B urns 
J ames M. Nabrit, III 
Charles Stephen Ralston 
Melvyn Zarr

Of Counsel



APPENDIX



APPENDIX A

Order of Affirmance

COURT OF APPEALS

State of New York, ss. :

P leas in the Court of Appeals, held at Court of Appeals 
Hall, in the City of Albany, on the 7th day of December 
in the year of our Lord one thousand nine hundred and 
sixty-seven, before the Judges of said Court.

W itness,
The H on. Stanley ti. F tjld, 

Chief Judge, Presiding.
Raymond J. Cannon, Clerk.

Remittitur December 7, 1967.

2. No. 512. 67
The P eople &c. ex rel. Antonio Gonzalez,

vs.
Appellant,

W arden, Brooklyn H ouse of Detention,

Respondent.

Be it Remembered, That on the 30th day of October 
in the year of our Lord one thousand nine hundred and 
sixty-seven, Antonio Gonzalez, the appellant in this cause, 
came here unto the Court of Appeals, by Harold J. Roth-



2a

Order of Affirmance

wax, his attorney, and filed in the said Court a Notice of 
Appeal and return thereto from the order of the Appellate 
Division of the Supreme Court in and for the Second 
Judicial Department. And Warden, Brooklyn House of 
Detention, the respondent in said cause, afterwards ap­
peared in said Court of Appeals by Frank S. Hogan, 
District Attorney.

Which said Notice of Appeal and the return thereto, 
filed as aforesaid, are hereunto annexed.

W hereupon, T he said Court of Appeals having heard 
this cause argued by Mr. Martin Spiegel, of counsel for 
the appellant, and by Mr. Daniel Markewieh, of counsel 
for the respondent, and after due deliberation had thereon, 
did order and adjudge that the order of the Appellate 
Division of the Supreme Court appealed from herein be 
and the same hereby is affirmed.

And it was also further ordered, that the record afore­
said, and the proceedings in this Court, be remitted to 
the Appellate Division of the Supreme Court, Second 
Judicial Department, there to be proceeded upon according 
to law.

T herefore, it is considered tha t the said order be af­
firmed, as aforesaid.

And hereupon, as well the Notice of Appeal and return 
thereto aforesaid as the judgment of the Court of Appeals 
aforesaid, by it given in the premises, are by the said 
Court of Appeals remitted into the Appellate Division 
of the Supreme Court, Second Judicial Department, before 
the Justices thereof, according to the form of the statute 
in such case made and provided, to be enforced according



3a

Order of Affirmance

to law, and which record now remains in the said Appellate 
Division, before the Justices thereof, &e.

Raymond J . Cannon 
Clerk of the Court of Appeals of the 

State of New York

Court of Appeals, Clerk’s Office,
Albany, December 7, 1967.

I  H ereby Certify, that the preceding record contains a 
correct transcript of the proceedings in said cause in the 
Court of Appeals, with the papers originally filed therein, 
attached thereto.

[seal]
Raymond J . Cannon 

Clerk



4a

STATE OF NEW YORK COURT OF APPEALS

Opinion of New York Court of Appeals

T he P eople &c. ex eel. A ntonio Gonzalez,

vs.
Appellant,

W arden, Brooklyn H ouse of Detention,

Respondent.

Scileppi, J . :
The relator appeals, on constitutional grounds, from an 

order of the Appellate Division, Second Department, which 
unanimously dismissed a writ of habeas corpus and re­
manded the relator to the custody of the Warden of the 
Brooklyn House of Detention.

On August 23, 1967, the relator was arrested by Detective 
Geik of the New York City Police Department and was 
charged with assault and robbery of a police officer. Detec­
tive Mitsch, the injured officer, was working as an under­
cover narcotics agent with the New York City Police De­
partment. When he was assaulted, he was attempting to 
arrest a narcotics seller who had attacked him with a knife. 
Having disarmed the assailant, the detective was holding 
him at gunpoint. Suddenly, Detective Mitsch was attacked 
by six assailants—one of whom allegedly was the relator—- 
who knocked the gun from his hand and beat him about 
the head and body with cinder blocks and sticks. This re­
sulted in his being hospitalized and incapacitated for sev­
eral months.



5a

When the relator was arraigned on August 23, 1967, in 
the Criminal Court of the City of New York, his bail was 
set at $25,000. Several motions for a reduction of bail 
were made and granted. Bail was ultimately set at $1,000. 
Unable to raise $1,000 bail or to secure a bond for that 
amount, the relator soug’ht a writ of habeas corpus in the 
Supreme Court, Kings County, on October 20, 1967. Jus­
tice Vincent Damiani dismissed that writ, saying that un­
der the circumstances the bail was reasonable.

On October 23, 1967 the relator sought another writ of 
habeas corpus in the Appellate Division, Second Depart­
ment. On October 25, 1967 a hearing was held before the 
Appellate Division. His counsel informed the court that the 
relator was 19 years of age and had no previous criminal 
record, that he had come to New York from Puerto Rico 
three years ago, that he had lived with his father, brother 
and sister at 734 East 5th Street, Manhattan, for the past 
two years, that he was employed as a clerk by Mobilization 
For Youth at a salary of $45.00 per week and was attending 
classes there in remedial reading and job training, and that 
present in court was a social worker, employed by Mobiliza­
tion For Youth, who had known relator for two years and 
who agreed to supervise relator if he were released. Coun­
sel informed the court that relator had $100 which had been 
collected from friends and relatives to be used for bail, 
and that he was in jail solely because he lacked the funds 
necessary to secure a $1,000 bail bond. The Assistant Dis­
trict Attorney, appearing for respondent, conceded that the 
facts as stated by relator’s counsel were correct to his 
knowledge. He argued, however, that the seriousness of 
the charge, the possibility of substantial punishment if 
relator were convicted and the fact that relator had only 
recently moved to New York from Puerto Rico were fac­

O pinion  o f  N e w  Y o r k  C our t  o f  A p p e a ls



6a

tors which demonstrated that the relator might flee if he 
were released without an adequate bond. He further argued 
that the issue was not whether the justices of the Appellate 
Division would set the same bail as had the lower courts, 
but whether the judges of the lower courts had abused their 
discretion in setting the bail at $1,000. After due delibera­
tion, the Appellate Division determined that under the cir­
cumstances of this case, the lower courts had not abused 
their discretion in setting bail at $1,000 and dismissed the 
writ.

On this appeal, the relator presents three arguments:
1) Given facts which demonstrate a likelihood of ap­

pearance and the existence of non-financial conditions 
of release which would increase the likelihood of ap­
pearance, the lower courts required constitutionally 
excessive bail.

2) The detention of the relator solely on account of his 
poverty deprives him of equal protection of the 
laws.

3) Pretrial detention denied relator due process of law 
in that (a) he is punished without trial and in violation 
of the presumption of innocence without showing of 
overriding necessity and (b) he is prejudiced at trial 
and deprived of fundamental fairness in the guilt 
finding and sentencing process.

The problems of pretrial release arise mainly from a 
conflict between two competing interests. The first is the 
interest of the individual in maintaining his pretrial liberty, 
for, though charged with a crime, he is presumed to be in­
nocent. The second is the interest of the State in assuring 
that one who is accused of a crime will appear at a stipu­

Opinion o f  N e w  Y o r k  C ourt o f  A p p e a ls



7a

lated time and place for a trial. A money bail system has 
been the principal device employed in this country for the 
accommodation of these conflicting interests.

In recent years, the money bail system has come under 
attack (see e.g., Botein, The Manhattan Bail Project: Its 
Impact on Criminology and the Criminal Law Processes, 
43 Tex.L.Rev. 319; Foote, The Coming Constitutional 
Crisis in Bail, 113 U.Pa.L.Rev. 959, 1125; Foote, Compel­
ling Appearance in Court: Administration of Bail in Phila­
delphia, 102 U.Pa.L.Rev. 1031; Freed & Wald, Bail in the 
United States 1964, A Report to the National Conference 
on Bail and Criminal Justice; McCarthy & Wahl, The Dis­
trict of Columbia Bail Project: An Illustration of Experi­
mentation and a Brief for Change, 53 Gao. L.J. 675; Note: 
A Study of the Administration of Bail in New York City, 
106 U.Pa.L.Rev. 693; Note, Bail: An Ancient Practice Re­
examined, 70 Yale L.J. 966). The relator has carried the 
attack to this Court. His brief is a general indictment of 
the money bail system. He argues that it is illogical to 
deprive an accused of his pretrial freedom simply because 
he cannot afford bail when there are other means available 
of assuring his presence at trial. He points to the fact that 
frequently an accused is deprived of his freedom because a 
bail bondsman for one reason or another will not write a 
bond. Thus, the decision whether an accused will be re­
leased prior to trial is often effectively delegated to a per­
son whose decision to write a bond is more often than not 
related to a profit motive. Relator also argues that the 
purpose of bail-—to assure the presence of the accused at 
trial—is frequently prostituted by the setting of bail which 
the defendant cannot meet in order to give him a taste of 
jail.

O pinion  o f  N e w  Y o r k  C o u r t  o f  A p p e a ls



8a

Lastly, lie argues that the amount of bail fixed is often 
dictated solely by the nature of the offense charged. This 
occurs despite our holding in People ex rel. Lobell v. Mc­
Donnell (296 N.Y. 109) where we stated that the judge must 
exercise his discretion in setting bail by taking into account 
the following factors: “The nature of the offense, the pen­
alty which may be imposed, the probability of the willing 
appearance of the defendant or his flight to avoid punish­
ment, the pecuniary and social condition of defendant and 
his general reputation and character, and the apparent 
nature and strength of the proof as bearing on the prob­
ability of his conviction” (People ex rel. Lobell v. Mc­
Donnell, supra at 111).

The relator claims that the overwelming evidence of the 
abuses of the money bail system led the Congress of the 
United States to enact the Bail Reform Act of 1966 (18 
U.S.C. Section 3146). The Act requires that an accused be 
released on his own recognizance or on an unsecured prom­
ise to pay unless the United States Commissioner or Judge 
finds that an accused would not be reasonably likely to 
appear. If the judicial officer expressly determines that 
such a release will not reasonably assure the appearance 
of the person, he may either in lieu of or in addition to 
the above methods impose another condition or combination 
of conditions which will assure appearance—resorting to 
the least stringent that will accomplish the desired pur­
pose.

These conditions include:
1) placing the person in the custody of a designated 

person or organization agreeing to supervise him;
2) placing restrictions on the travel, association, or place 

of abode of the person during the period of release;

Opinion o f  N e w  Y o r k  C ourt o f  A p p e a ls



9a

3) requiring the execution of an appearance bond in a 
specified amount and the deposit in the registry of 
the court, in cash or other security as directed, of a 
sum not to exceed 10 per centum of the amount of 
the bond, such deposit to be returned upon the per­
formance of the conditions of release;

4) requiring the execution of a bail bond with sufficient 
solvent sureties, or the deposit of cash in lieu thereof; 
or

5) imposing any other condition reasonably necessary to 
assure appearance as required, including a condition 
requiring that the person return to custody after 
specified hours.

(18 U.S.C. Section 3146)

Having placed this statute before us, the petitioner in ef­
fect asks this Court to adopt it by holding that a financial 
test shall not be approved for an indigent’s pretrial release 
unless it is first determined that no available non-financial 
alternative will reasonably assure his appearance.

We would be less than candid if we did not admit that 
the present bail system is subject to abuse. Nevertheless, 
we are not willing to accede to the relator’s request that 
this Court adopt a non-financially oriented system of bail. 
It is our opinion that the adoption of such a system is more 
properly within the province of the Legislature. It is sig­
nificant that all of the bail reform that has occurred to 
date has been the product of legislative rather than judicial 
action. It is equally significant that the President’s Com­
mission on Law Enforcement and Administration of Jus­
tice recommended that state legislatures, rather than state 
courts, promote bail reform along the lines set by the Bail

O pinion  o f  N e w  York, C ourt o f  A p p e a ls



10a

Reform Act of 1966 (The Challenge of Crime in a Free So­
ciety, 132).

Even if this Court were to adopt a bail reform system 
along the lines of the Federal Bail Reform Act of 1966, 
the relator would still not be entitled to release on his own 
recognizance. The Bail Reform Act directs a judge or 
magistrate to release a defendant on his personal recogni­
zance or upon the execution of an unsecured appearance 
bond if he determines that such terms will reasonably as­
sure the defendant’s presence. If the judge determines that 
non-financial conditions of release will not reasonably se­
cure the defendant’s presence, the Act authorizes him to 
impose money bail—either a specified amount of cash or 
a secured bond in that amount.

In determining whether or not a defendant should be 
released on his own recognizance, a judge would take into 
consideration the same factors which are applied in a finan­
cially oriented bail system, where, “The nature of the of­
fense, the penalty which may be imposed, the probability 
of the willing appearance of the defendant or his flight to 
avoid punishment, the pecuniary and social condition of 
defendant and his general reputation and character, and 
the apparent nature and strength of the proof as bearing 
on the probability of his conviction. . . .” (People ex rel. 
Lobell v. McDonnell, supra, see also, Stack v. Boyle, 342 
U.S. 1 at 8 [Jackson, J .  concurring]). Given these criteria, 
we cannot say that, in the circumstances of this case, the 
lower courts abused their discretion in setting bail at 
$1,000 and in denying relator’s request that he be released 
on his own recognizance or on $100 bail. The relator is 
accused of a vicious crime and is subject to a possible sen­
tence of 13 years in prison. He has been in New York for 
only three years. While the relator contributes to the sup­

O pinion o f  N e w  Y o r k  C o u r t  o f  A p p e a ls



11a

port of his father, brother and sister, there is no evidence 
that they are dependent upon relator for their support.

In sum, although he has certain roots in the community, 
it was well within the court’s discretion to determine that 
those roots were not strong enough to assure relator’s ap­
pearance for trial if he were released on his own recogni­
zance or on $100 bail.

The relator also contends that the setting of money bail 
in excess of what he can afford when a reasonable alterna­
tive exists for insuring his presence denies him due process 
and equal protection of the law. We need not pass upon this 
contention since we have concluded that the lower courts 
did not abuse their discretion in determining that $1,000 
bail was necessary for assuring the relator’s presence.

Accordingly, the order appealed from should be affirmed.

Order affirmed. Opinion by Scileppi, J. All concur.

O pin ion  o f  N e w  Y o r k  C our t  o f  A p p e a ls



12a

Order of the Appellate Division

At a Term of the Appellate Division of the 
Supreme Court of the State of New York, 
Second Judicial Department, held in Kings 
County on October 25, 1967.
H o n . Marcus (1. Christ,

Acting Presiding Justice.
H on. Arthur D. Brennan,
H on. Samuel B abin,
H on. J ames D. H opkins,
H o n . F red J .  Munder,

Justices.

T he P eople, etc., ex rel. A ntonio Gonzalez,

v.
Relator,

W arden, B rooklyn H ouse of Detention,

Respondent.

The relator, A ntonio Gonzalez, being confined in the 
Brooklyn House of Detention, pursuant to an order of a 
Justice of the Criminal Court of the City of New York, 
County of New York, which fixed at $25,000 the relator’s 
bail on an indictment charging him with the crimes of as­
sault and robbery, which bail was thereafter reduced to 
$1500 by a Justice of the Supreme Court, New York County; 
the relator having made a habeas corpus application to 
this court to be released from custody or to have his bail



13a

Order of the Ap-pellate Division

reduced further; a writ of habeas corpus having been duly 
issued by a Justice of this court on October 23, 1967, and 
the relator, pursuant to such writ, having been produced 
before this court on October 25, 1967;

Now, on reading and filing the said Writ and the petition 
of the relator’s counsel, verified October 20, 1967, in sup­
port of the application; and the application having been 
argued by Martin Spiegel, Esq., of counsel for relator, and 
by Daniel Markewich, Esq., Assistant District Attorney, of 
counsel for respondent; and due deliberation having been 
had thereon; and upon the decision slip of this court, here­
tofore filed and made a part hereof; it is :

Ordebed that the said application is hereby denied, and 
the Writ dismissed, without costs; and it is further

Ordered th a t the said relator is hereby remanded to the 
custody of the Warden of the Brooklyn House of Deten­
tion for Men.

Enter:
H erman M. P ogul 

Clerk



14a

Stipulation

It is hereby stipulated and agreed by and between F rank
S. Hogan, District Attorney, County of New York and 
Harold J. Rothwax, attorney for Petitioner that on October 
25, a hearing on the instant writ was held before the 
Justices of the Appellate Division. Martin Spiegel ap­
peared for the petitioner and Daniel M. Markewich, As­
sistant District Attorney, New York County, appeared for 
Respondent. Mr. Spiegel informed the Court that the re­
lator was 19 years of age and had no previous criminal 
record, that he had come to New York from Puerto Rico 
three years ago, that he had lived with his father, brother 
and sister at 734 East 5th Street, Manhattan, for the past 
two years, that he was employed as a clerk with Mobiliza­
tion For Youth at $45.00 per week and was attending 
classes there in remedial reading and job training, and that 
present in Court was Mr. Elwood Jefferson, a social worker 
with Mobilization For Youth, who has known Mr. Gonzalez 
for two years. Mr. Jefferson told the Court that he would 
be willing to supervise Mr. Gonzalez should he be released. 
Mr. Spiegel informed the Court that Mr. Gonzalez had $100, 
which had been collected among friends and relatives to be 
used for bail, and that he was in jail solely because he lacked 
the funds necessary to secure a $1,000 bail bond. Mr. 
Spiegel argued all of the constitutional grounds set forth 
in the petition. Mr. Markewich conceded that the facts 
related by Mr. Spiegel were correct to his knowledge but he 
urged that the seriousness of the charge, the possibility of 
substantial punishment if petitioner were convicted, and 
the fact that petitioner originally came from Puerto Rico, 
were factors showing that petitioner might flee if released. 
He urged that the issue was not whether the Justices of the 
Appellate Division would set the same bail as had the



15a

Stipulation

lower courts, but whether the Judges of the lower courts 
had committed an abuse of discretion in setting the bail. 
Mr. Markewich contended that the bail set in the instant 
case did not constitute an abuse of discretion.

/s /  .....................................................
F rank S. H ogan

District Attorney 
County of New York 
by Daniel Markewich 
Assistant District Attorney

/s /  .....................................................
H arold J . R othwax

Attorney for Petitioner 
by Martin Spiegel 
Of Counsel



16a

Petition for Writ of Habeas Corpus

SUPREME COURT 
OF THE STATE OF NEW YORK

A ppellate Division—Second Department

Index No.

T he P eople oe the State oe New York ex rel. 
A ntonio Gonzalez,

Petitioner,
—against-

Warden, Brooklyn H ouse of Detention,

Respondent.

To the J ustices of the A ppellate D ivision of the Su­
preme Court of the State of New York:

1. This petition is made on behalf of Antonio Gonzalez, 
who is detained by Respondent at the Brooklyn House of 
Detention for Men, 275 Atlantic Avenue, County of Kings, 
City and State of New York.

2. The cause or pretense of the detention, according to 
the best acknowledge and belief of the Petitioner, is a 
commitment issued on October 16, 1967 by the Criminal 
Court of the City of New York, County of New York, Part 
ID, ordering that the prisoner, Antonio Gonzalez, be held 
by the Respondent, unless and until he posts bail of $1,000 
to await the action of the Criminal Court upon a complaint 
charging Mr. Gonzalez with the crimes of assault and rob­



17a

bery. No copy of the commitment is available to yonr 
Petitioner.

3. A court or judge of the United States does not have 
exclusive jurisdiction to order the release of said person.

4. This writ is sought because of an illegal detention, 
the nature of the illegality being as follows:

On August 23, 1967, Mr. Gonzalez was arrested by De­
tective Bernard Geik of the Narcotics Bureau on a charge 
of having committed assault and robbery on August 22, 
1967. On August 23, 1967, Mr. Gonzalez was arraigned in 
Part 1A of the Criminal Court, County of New York. The 
arraignment was upon a short affidavit drawn pursuant to 
Section 55 of the New York City Criminal Court Act. Bail 
was set at $25,000.

On September 28, 1967, your petitioner filed a Notice of 
Appearance on behalf of the prisoner, Antonio Gonzalez. 
The bail was reduced to $2500.

On October 10, 1967, your petitioner made an application 
before the Hon. Arthur Klein, the Justice presiding in 
Part 31 of the Supreme Court, New York County, and 
moved that Court to reduce Mr. Gonzalez’ bail. Justice 
Klein reduced the bail to $1500, but refused to reduce it 
further.

On October 13, 1967, your petitioner signed a petition 
for a writ of habeas corpus, in order to obtain Mr. Gon­
zalez’ release. On that date, Martin Spiegel, an attorney 
associated with my office, went to the office of the Clerk of 
the Appellate Division for the Second Judicial Department 
and asked that the writ be made returnable in that Court, 
since the prisoner was detained in Brooklyn and because the 
relief sought had already been denied by Justice Arthur

P e ti t io n  fo r  W r i t  o f  H abeas  C orpus



18a

Klein in the New York Connty Supreme Court. At the 
Clerk’s office, Mr. Spiegel was informed by Mr. Irving 
Selkin, Deputy Clerk, that because the prosecution of Mr. 
Gonzalez was pending in Manhattan, a writ of habeas 
corpus must be obtained there. Mr. Spiegel then went to 
the Clerk of the Appellate Division for the First Judicial 
Department and requested that the writ be made returnable 
in that Court. Mr. Ryan, the Clerk, informed Mr. Spiegel 
that the Justices of the Appellate Division, First Depart­
ment, will not make a writ returnable in that Court, and 
that Mr. Spiegel then went to Special Term, Part II. The 
Clerks told him that the writ may only be made returnable 
in Brooklyn Supreme Court, since Antonio Gonzalez was 
detained in Kings County. Mr. Justice Telesford signed 
the writ of habeas corpus returnable in Criminal Term, 
Part I, of Brooklyn Supreme Court. A copy of the peti­
tion and writ are attached hereto as Appendix I.

On information and belief, on October 17, 1967, Mr. Jeff 
Bragg, a clerk in my office, served the petition and writ on 
the office of the District Attorney, New York County, at 
12:40 p.m.

On October 16, 1967 I appeared in Criminal Court, New 
York County before Judge Daniel Hoffman, who adjourned 
Mr. Gonzalez’ case to November 9, and reduced bail to 
$ 1000.

On October 18, 1967, Mr. Spiegel appeared in Kings 
County Supreme Court, Criminal Court, Criminal Term, 
Part I. Mr. Gonzalez was produced by the Department of 
Correction. No appearance was entered by the District 
Attorney of New York County. Mr. Spiegel consented to 
adjournment of the writ to October 20, 1967.

On October 20, 1967, Mr. Spiegel again appeared in 
Brooklyn Supreme Court. The New York County District

P e t i t io n  fo r  W r i t  o f  H abeas  C orpus



19a

Attorney appeared by Assistant District Attorney Robert 
Kierman. Mr. Spiegel reiterated the points raised in the 
petition and pointed ont that Mr. Gonzalez’s father was 
present in court, and that Mr. Gonzalez could post $100 
for bail but no more. Mr. Justice Damiani stated that he 
felt that the bail was reasonable and he dismissed the writ 
without prejudice to institution of a new proceeding after 
November 9. Mr. Spiegel asked whether the Court had 
read all of the constitutional assertions contained in the 
petition and whether they were all being rejected. Justice 
Damiani replied in the affirmative.

On information and belief Antonio Gonzalez is 19 years 
old, and has lived at the same address with his father and 
brothers for the past two years. On information and belief 
he has no previous criminal record. On information and 
belief, at the time of his arrest Mr. Gonzalez was a clerical 
employee of Mobilization For Youth, Inc.

I  am informed by Detective Geik, the arresting officer 
that Mr. Gonzalez turned himself into the police voluntarily, 
that he made a full statement and that he was cooperative. 
I am further informed by Detective Geik, that the com­
plainant, a New York City police officer, is on sick leave 
and will not be available to testify before the Grand Jury 
or in a preliminary hearing for at least two months.

Unless Mr. Gonzalez is free pending the prosecution, it 
will be difficult or impossible to locate certain witnesses 
who may be necessary for his defense. Mr. Gonzalez’ pov­
erty makes it impossible for him to post any more than a 
nominal sum as bail. The fact that Mr. Gonzalez turned 
himself in shows that it is extremely unlikely that he would 
flee the jurisdiction if released on recognizance or a nomi­
nal bail. If Mr. Gonzalez owned and posted $1000 for bail,

P e tit io n  fo r  W r i t  o f H abeas C orpus



20a

he would be no less likely to flee the jurisdiction than he 
would be if he were released without bail.

It is submitted that excessive bail has been set in viola­
tion of Article I, Section 5 in the New York State Consti­
tution and of the Eighth and Fourteenth Amendments to 
the United States Constitution. Furthermore, to hold Mr. 
Gonzalez in jail solely because of his poverty constitutes 
a denial of equal protection of the laws in violation of Arti­
cle I, Section 11 of the New York State Constitution and 
the Fourteenth Amendment to the United States Constitu­
tion. To hold Mr. Gonzalez in jail strictly because he is 
under accusation and without reasonable proof showing 
that he would otherwise be unavailable for trial, and with­
out even a hearing to determine whether he would be avail­
able, constitutes a deprivation of his liberty without due 
process of law, in violation of Article I, Section 6 of the 
New York State Constitution and violation of Fourteenth 
Amendment of the United States Constitution.

5. No appeal has been taken from the order of commit­
ment by virtue of which the prisoner, Antonio Gonzalez, is 
detained, since there is no provision in the law for appeal 
of such an order.

6. Petitioner prays that the instant writ be made return­
able before the Justices of the Appellate Division. Al­
though petitioner may file a notice of appeal from Justice 
Damiani’s dismissal of the writ, a substantial amount of 
time will pass while the appeal is perfected. Every day 
Mr. Gonzalez is imprisoned constitutes a further violation 
of the rights asserted herein. Furthermore, the issues 
raised herein may become mooted by the passage of time 
necessary for an appeal.

P e tit io n  fo r  W r i t  o f  H ab ea s C orpus



21a

For all of the reasons stated in this petition, petitioner 
further prays that this Court, pending disposition of this 
writ, either parole Mr. Gonzalez in his own custody, or 
set a moderate bail, or, in the alternative, set the matter 
down for an immediate hearing to determine whether any 
bail is required to insure Mr. Gonzalez appearance both in 
this Court and the Criminal Court.

7. No previous application has been made for this relief 
except as described herein.

W herefore, your petitioner prays that a Writ of Habeas 
Corpus issue, directed to the Respondent requiring the Re­
spondent to produce the said Gonzalez before this Court 
on Wednesday October 25, 1967.

Dated: the day of October, 1967

/s /  H arold J. R oth wax

By Martin Spiegel of Counsel 
Attorney for Petitioner 

320 East 3rd Street 
New York, New York 10009

P e tit io n  fo r  W r i t  o f  H abeas C orpus



22a

Affidavit

State of New Y ork,
County of New York, s s . :

H arold J. R othwax, being duly sworn, deposes and says 
tha t he is the petitioner in the within proceeding; tha t he 
has read the foregoing petition and knows the contents 
th e reo f; tha t the same is true to his own knowledge, except 
as to the m atters therein stated to be alleged on informa- 
ion and belief; and tha t as to those m atters he believes it 
to be true.

/ s /
Petitioner

Sworn to before me this 
20th day of October, 1967



23a

Affidavit

State of New Yqbk,
County of New York, ss. :

Martin Spiegel, being duly sworn, deposes and says, tha t 
he has read the foregoing petition and knows the contents 
th e reo f; th a t the portions tha t refer to him are true to his 
own knowledge.

/ s /

Sworn to before me this 
23rd day of October, 1967



24a

To
1.

2.

In t

2
0

—1
—2

3

2

1

3
2

APPENDIX B 

Probation Report

Form 40-43-167 Rev.
OFFICE OF PROBATION 

R O R BRANCH
RATING SHEET

be recommended, defendant needs:
A New York area address where he can be reached, 

AND
A total of five points from the following categories:

Ver P rior R ecord

2 No convictions.
0 One misdemeanor conviction.

—1 Two misdemeanor or one felony conviction.
—2 Three or more misdemeanor or two or more 

felony convictions.
F amily T ies (In New York area)

3 Lives in established family home AND visits 
other family members. (Immediate family 
only)

2 Lives in established family home. (Immediate 
Family)

1 Visits others of immediate family.
E mployment or School

3 Present job one year or more, steadily.
2 Present job 4 months OR present and prior 6 

months.



25a

Probation Report

1

3
2

1

3
2

1

+ 1

—-1

1 Has present job which is still available.
OR Unemployed 3 months or less and 9 months 
or more steady prior job.
OR Unemployment compensation.
OR Welfare.

3 Presently in school, attending regularly.
2 Out of school less than 6 months but employed, 

or in training.
1 Out of school 3 months or less, unemployed 

and not in training.
R esidence (In New York Area Steadily)

3 One year at present residence.
2 One year at present or last prior residence OR 

6 months at present residence.
1 Six months at present and last prior residence 

OR in New York City 5 years or more.
Discretion

+1 Positive, over 65, attending hospital, appeared 
on some previous case.

0 Negative-—intoxicated—intention to leave ju­
risdiction.

T otal I nterview P oints

R NR
T otal I nterview P oints

R NR

Reason(s) for discretionary points:

40-43-167 Rev.



MEIIEN PRESS INC. —  N. Y. C .«^^>219