Baines v. McGrath Petition for a Writ of Certiorari and Motion to Advance

    *

i

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1968 
No. ______

l DARRYL BAINES AND GEORGE CORREA,
Petitioners,

v.
GEORGE F. McGrath, COMMISSIONER 

p» OF CORRECTION.

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

GERALD LEFCOURT 
18 East 64th St.
New York, N. Y.

WILLIAM M. KUNTSLER 
511 Fifth Avenue 
New York, New York

Attorneys for Petitioners

MICHAEL MELTSNER 
MELVYN ZARR10 Columbus Circle 

New York, N. Y. 10019
Of Counsel

l



TABLE OF CONTENTS

Motion to Advance — --- — ------- ---------- ----------
Petition for Writ of Certiorari

Citation to Opinion Below---- — ----"------------
Jurisdiction ------ — ----------------------------
Questions Presented --—  -- -— -— -------------— —
Constitutional Provisions Involved -----------
Statement  ---------— ----------- --- — --- “—
How the Federal Questions Were Raised and 
Decided Below-- ----- --- ----- ----------  ---

Reasons for Granting the Writ
I. Certiorari Should Be Granted to Decide Whether 

Manipulation of Bail as a Form of Pre-Trial Punishment of Political Undesirables Offends 
the Eighth Amendment's Proscription Against 
Excessive Bail — -— --- ------ *--- -- -— ----

II. The Fourteenth Amendment Makes the Eighth Amendment's Proscription Against Excessive 
Bail Applicable to the States -— — ------ -—

Conclusion • 
Appendix —

TABLE OF CASES

Aguilar v. Texas, 378 U.S. 108 (1964) -- ----— —
Bitter v. United States, 389 U.S. 15, 17 (1967) —
Cohen v. United States, 7 L.ed 2d 518 (1962)

(Mr. Justice Douglas)-- --------- ----------—
Dennis v. United States, 341 U.S. 494 (1951) — —
Douglas v. California, 372 U.S. 353 (1963) -— -—
Duncan v. Louisiana, 391 U.S. 145, (1968) — — —
Garner v. Louisiana, 368 U.S. 157, 173 (1961) —
Gideon v. Wainwright, 372 U.S. 335 (1963) — — ---
Gonzalez v. Warden, 21 N.Y. 2d 18, cert, denied 

390 U.S. 973 (1968) — -----— ------------------
Griffin v. Illinois, 351 U.S. 12 (1956) --------
Ker v. California, 374 U.S. 230 (1963) — —— — —



PAGE
14.16 
14 
14
14.16 
16
1,2,9

10,11,12,15,
Washington v. Texas, 388 U. S. 14 (1967) ----- -—
Williamson v. United States, 184 F2d 280 (2ed Cir. 1950) ^

(Mr. Justice Jackson)------ — ---------- *---  12

Klopfer v. North Carolina, 386 U.S. 213 (1967) -—
Malloy v. Hogan, 378 U.S. 1 (1964) -------
Mapp v. Ohio, 367 U.S. 643 (1961) -----------------------
Pointer v. Texas, 380 U.S. 400 (1965) --
Robinson v. California, 370 U.S. 660 (1962) -
Stack v. Boyle, 342 U.S. 1 (1951) -----------------------

STATUTES

28 U.S.C. §1257(3) ------- ---------------- —

OTHER AUTHORITIES

Allen, Poverty and the Administration of Federal Criminal 
Justice —  -- --------— — — — ---------------------

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

Bail In The United States, 1964, 12 (National Conf. on 
Bail and Criminal Justice, Washington, D.C-) ---------

Conference Proceedings, National Conference on Law 
and Poverty (1965)----- --- — ----- ---------

Foote, "The Coming Constitutional Crisis In Bail,"
113 U. of Pa. L. Rev. 1125, 1131 (1965). -------------

National Conference on Bail and Criminal Justice,
Proceedings and Interim Report (1965) — — — — —— —

N. Y. Times, September 5, 1968, pg. 1.
Proceedings of the Conference on Bail and Indigency, 

1965 U. 111. L. Forum, #1 ------------------------
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. 152)----------------------------

15 

17 

* 10 

15

13,16

15
9

15

16 

If



I

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1968 
No. ______

DARRYL BAINES AND GEORGE CORREA,
Petitioners,

v.
GEORGE F. McGrath, COMMISSIONER 
OF CORRECTION.

MOTION TO ADVAiTCF

Petitioners move 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 petitioners 
move 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 undersigned
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 punishment of petitioners because they are 
considered oolitical undesireables. If petitioners' contentions 
should prevail, they will nevertheless have been punished irre­
parably for each day they have 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. 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



I

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, hearing oral argument and 
deciding the appeal within three weeks after judgment in a lower 
court.

3. No prejudice will be suffered by respondent by reason 
of expediting consideration of the petition for certiorari as 
counsel for respondent is thoroughly familiar with the issues 
raised by the petition for a writ of certiorari.

WHEREFORE, petitioners pray 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 and this case set down for argument, that the dates by 
which briefs on the merits are to be filed and the date of oral 
argument be advanced.

Respectfully submitted,

Attorney for Petitioners

2



\

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1968 
No. _______

DARRYL BAINES AND GEORGE CORREA,
Petitioners,

GEORGE F. MCGRATH, COMMISSIONER OF CORRECTION,

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

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Court of Appeals of the State of New York
entered on September 25, 1968.

Citation to Opinion Below
The opinion of the Court of Appeals and the order of the 

Appellate Division, Second Department, denying relief are unreported 
and are set forth in the appendix, infra pp. la - 2a.

Jurisdiction
The judgment of the Court of Appeals was issued on September 

25. 1968, infra p. la. Jurisdiction of this Court is invoked 
pursuant to 28 U.S.C. §1257(3). petitionershaving asserted below 
and asserting here deprivation of rights secured by the Consti-
tution of the United States.

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 petitioners 
incarceration prior to trial in default of $20,000.00 and $10,000.00 
bail is consistent with the Eighth Amendment, when unusually high 
bail was granted in order to incarcerate petitioners because of 
their political associations and so that they might be "rehabilitated 
in prison."

Constitutional Provisions Involved 
1. This case involves the Eighth and Fourteenth Amendments

to the Constitution of the United States.
STATEMENT

Petitioners George Correa and Darryl Baines are 
presently incarcerated by the New York Department of Correction 
in the Riker's Island Prison due to their failure to raise bail 
in the amount of $20,000.00 (Correa) and $10,000.00 (Baines). 
Petitioners have been held in custody since August 21, 1968. George 
Correa is 22 years old and lives with mother at 143 Columbia 
Street, Brooklyn, New York. During the past three years he has 
worked at Le Grand Acres (a New York State horse ranch) as well as 
the Horn and Hardart Co., the Mobile Building, and various ship­
yards all in the New York area (D-22; K-10). Correa has seven 
New York State misdemeanor convictions dating from 1962 such as 
possession of knife, attempted petit larceny, unlawful entry, 
disorderly conduct, and assault (D-31; K-9,.27). Correa has never 
defaulted on a bond or failed to be present at a required court 
appearance (D-9,10).

Petitioner Darryl Baines is 17 years of age and lives with his 
mother at 811 St.James Place, Brooklyn (K-8). He attended Lefferts 
High in New York City and has worked at Statler Hilton Hotel (K-8).

y The bail reduction hearing before Justice Damiani is cited (D---->
The bail reduction hearing before Justice Kleinfeld is cited
(K-_____) .

-  2 -



He has no criminal record other than a pending charge for felonious 
assault on which he was released on his own recognizance (K-8, 20). 
Baines had never defaulted on any bond or failed to appear for any 
court appearance (D-9, 10).

On August 21, 1968, equipment of the New York City Fire 
Department was called to the Fulton Street area of Brooklyn where 
several small fires were burning. Objects including at least one 
bottle, were thrown at the fire fighting apparatus by persons in
the vicinity. Petitioners, George Correa, 22, Darryl Baines, 17,2/and a co-defendant, Juan Martinez, 19, were arrested and initially 
charged as follows:

George Correa - Felonious Assault (PL 120)
Resisting Arrest (PL 205.30)
Possessing Stolen Property (PL 165.40)

Darryl Baines - Felonious Assault (PL 120)
Resisting Arrest (PL 205.30)
Possessing Stolen Property (PL 165.40)

Juan Martinez - Felonious Assault (PL 120)
Resisting Arrest (PL 205.30)
Possessing Stolen Property (PL 165.40)
Reckless Endangerment (PL 120.20)
Obstructing Government Administration 
(PL 195.05)

The complaint lodged against them alleged that petitioner Correa 
had thrown "objects and bottles at the fire equipment and the 
firemen thereon and striking the said fire apparatus with same" and 
that Correa, Baines and Martinez puniched, kicked and injured two 
police officers who sought to arrest them. The charge of Possessing 
Stolen Property was later dismissed against all three and the 
Reckless Endangerment and Obstructing charges were dismissed 
against Martinez and lodged against Correa (D-3). All charges 
except the assault charge are misdemeanors under New York law.

2/ Referred to as John Martinez in portions of the record.

3



When petitioners were arraigned, at approximately 3p.m., on 
August 21, 1968, "There were in the vicinity of 75 patrolmen with
helmets at their sides, sticks in their hands, around the judge’s

3/bench." (D-ll; K-14,15). At the request of the district attorney 
the Criminal Court set bail as follows:

George Correa - $50,000.00 for Felonious Assault
and $500.00 for each remaining charge.

Darryl Baines - $50,000.00 for Felonious Assault and $500.00
for each remaining charge.

On August 23, 1968, petitioners appeared in the Criminal 
Court and moved to reduce bail, but the motion was denied.

On August 27th, petitioners moved pursuant to a writ of habeas
corpus before a Justice of the New York Supreme Court to reduce bail.
The district attorney urged the Court to retain the bail set on the
ground that defendants were members of "The ultra militant Black
Panther Party' who would for that reason "flee the jurisdiction
and that their actions showed "a lack of respect for authority. :

"The defendants, as a result of my information, 
are members of the Black Panther movement.
Because of this, the district attorney is re­
questing a high bail since it is believed that 
the defendants would flee the jurisdiction.
I personally in the recent past have traced 
the path of three Black Panthers from our 
county across the country, and in the course 
of doing this I have come in contact with 
numerous police agents and law enforcement 
officials throughout the country and I have 
studied the Black Panther movement, and it is 
my opinion that there is an ebb and flow of 
this membership across the country from the 
East coast to the West Coast. Therefore, the 
district attorney is requesting this high bail 
to insure the presence of the defendants at the 
time of trial.

3/ A newspaper reporter described the police as having ‘transformer 
Brooklyn's Criminal Court Building into an armed camp..." £LX* Times. Aug. 22, 1968, P. 48. There were also "helmeted police
within a five block radius" (D-12).

4



It would be burdensome upon the People to send 
a police officer and an assistant prosecutor 
again across the country to find particular 
defendants." (D-19-20)

*****
"Therefore, I think that they can be rehabili­
tated in the prison system rather than be exposed 
again to the streets, and used again by these people in their fight against law and order (D-23.)"

The Court reduced bail for petitioner, Correa to $25,000.00 
for felonious assault and a total of $1500.00 on the other out­
standing charges, a total bail requirement amounting to $26,500.00. 
As to petitioner Baines, the Court reduced the felonious assault 
charge bail to $15,000.00 and retained the $500.00 bail on the 
remaining charges for a total of $15,500.00 (D-33, 33a). The Court 
stated its reason for fixing bail as follows:

"It is important in all these cases that where a 
defendant by his past conduct and by the charge, the instant charge, indicates a lack of respect 
for the police and the courts, and the processes 
of the court that the Court can reasonably infer 
that he is a bad risk on bail..." (D-32)

*****
"On Baines, there is a different situation.
He does not have anything like the record 
that Correa has, but he was out with a 
charge of felonious assault on a police 
officer pending. Now we have the same 
thing again that indicates a lack of respect for authority and I must take it 
into consideration, also taking into con­sideration the punishment involved." (D-33)

On September 3, 1968, petitioners made a second application 
before a Supreme Court Justice for a reduction of bail. Counsel 
again urged the bail was excessive and that petitioners could only 
arrange bail of approximately $1,000.00 (D-9; K-5,9). The district 
attorney argued the bail should be set at a high amount because 
(1) the proof of petitioner's guilt was great and a police officer 
and fireman involved would testify that petitioners had committed 
the offenses charged (K-28); and (2) petitioners were members of

5



the Black Panther Party who "When they were told by their superiors
to go to other areas of the country they go without questions."
(K-24) The district attorney also stated his understanding of the
philosophy of the Black Panther Party to be aiming toward violent
overthrow of all forms of government, as they presently exist 

4/(K-24, 25) but, as at previous court appearances, no evidence of
any kind was offered, testimonial or documentary, to establish the
character of the "Black Panther Party". The district attorney
summed up his position by stating:

"They are basically anarchists and are being 
used, you see, by these anarchists for the violent overthrow of government. I think these 
young men should be given a chance, you see, 
to be interviewed by the various social agencies 
in the Department of Correction, and I think a 
period of incarceration, for them will be 
therapeutic rather than let them out on the 
street again." (K-30)

As to petitioner Correa the Court reduced the bail to $19,000.00
on the assault charge and $500.00 on two other charges for a
total of $20,000.00. Petitioner Baines bail was set at $9,500.00
for the assault charge and $500.00 for remaining charges —  a total

5/
of $10,000.00. (K-32)

The same day, September 3, 1968, petitioners filed a petition 
for habeas corpus in the Appellate Division, Second Department of 
the New York Supreme Court asserting that the amount of bail required 
for their release was constitutionally excessive. After hearing 
arguments of counsel, the Court dismissed the writ, without opinion, 
on September 5, 1968. Petitioners thereupon filed a notice of 
appeal to the New York court of Appeals. After the chief Judge of 
the New York Court of Appeals granted an expedited appeal from the

4/ The district attorney also commented on petitioner Correa'sformer employment at a horse farm, by stating that his employer 
was not "The highest caliber businessman in our community and 
certainly a work reference from him is to be examined quite 
closely." (K-27) He did not, however, dispute the fact of 
employment or offer any evidence concerning the employer s 
character.

5/ The Court stated: "All that you have stated is very interesting, 
and I appreciate your zealousness in keeping these defendants 
incarcerated until they are brought to trial. However, I have 
a duty to perform and I took an oath to uphold the constitution of the State of New York and the Constitution of the United States, 
and I feel it is my duty to act on these applications." (K-31).

-  6 -



order of the Appellate Division, the Court of Appeals affirmed 
dismissal of the writ on September 25, 1968. The Court's brief 
opinion states as follows:

The Court, in the exercise of its power 
of review, is not required to anprove the 
amounts fixed as bail for each of the relators, 
as if it were determining the amount of bail 
in the first instance. It suffices that it 
concludes that the amounts thus fixed are not 
excessive as a matter of law, and therefore not 
in violation of constitutional limitations.
People ex rel. Lobell v. McDonnell, 296 N.Y.
109; People ex rel. Rao v. Adams, 296 N.Y. 231;
People ex rel. Gonzalez v. Warden, 21 N.Y. 2d 
18, 25.

Subsequently, on October 22nd, 1968 petitioners filed a
petition for writ of habeas corpus in the United States District 
Court for the Eastern District of New York alleging state remedies 
had been exhausted and that the bail approved by the Court of 
Appeals was constitutionally excessive (People of the State of 
New York ex rel George Correa and Darryl Baines v. George F. 
McGrath, Commissioner No. 68C—1080). On November 20, 1968, the
District Court dismissed the writ, and denied relief without 
opinion.

7



How the Federal Questions Were 
Raised and Decided Below

In the Criminal Court and Supreme Court of Kings County peti­
tioners' sought reduction of the amount of bail required on the 
ground that the amount set was constitutionally excessive in viola­
tion of the Eighth Amendment to the Constitution of the United States. 
Unable to raise $20,000.00 (Correa) and $10,000.00 (Baines), or the 
collateral needed to secure a bond for that amount, petitioners 
sought a writ of habeas corpus in the Appellate Division, Second 
Department of the Supreme Court of New York on September 3, 1968, 
asserting that the bail set was constitutionally excessive. The 
writ was dismissed and petitioners' constitutional arguments rejected 
on September 5, 1968.

On September 12, 1968, the Chief Judge of the New York Court 
of Appeals denied an application to reduce the bail presently 
fixed pending appeal of the order of the Appellate Division but 
granted petitioners an expedited appeal. Oral argument was presented 
to the New York Court of Appeals September 24, 1968, and on September 
25, 1968, the Court of Appeals affirmed the dismissal of the writ 
by the court below in the following opinion:

"The Court, in the exercise of its 
power of review, is not required to approve 
the amounts fixed as bail for each of the 
relators, as if it were determining the 
amount of bail in the first instance. It 
suffices that it concludes that the amounts 
thus fixed are not excessive as a matter of 
law, and therefore not in violation of consti­
tutional limitations. People ex rel. Lobell v.
McDonnell, 296 N.Y. 109; People ex rel, Rao v.
Adams, 296 N.Y. 231; People ex rel. Gonzalez v.
Warden, All concur."

8



REASONS FOR GRANTING THE WRIT

I
Certiorari Should Be Granted to 

Decide Whether Manipulation of Bail as 
a Form of Pre-Trial Punishment of Politi­
cal Undesirables Offends the Eighth Amend­
ment's Proscription Against Excessive Bail.

A. Punitively high bail is excessive bail within the meaning 
of the Eighth Amendment.
Under the circumstances shown by this record the unusually 

high bail required of petitioners and the reasons for setting it 
render the State's bail determination "excessive" under the Eighth 
Amendment. While figures are not available which set forth the 
average or normal bail required of persons charged with felonious 
assault in the City of New York, here as in Stack v. Boyle 342 
U.S. 1 (1951), the state has never denied petitioners' repeated 
contention "that bail for each petitioner has been fixed in a sum 
much higher than that usually imposed" (342 U.S. at 5). At no 
time during the proceedings below did the state assert that it was 
normal practice to require at first in such cases bail of $50,000.00 
and ultimately $10,000.00 and $20,000.00. On the contrary, the 
district attorney's approach to the case was to assert candidly 
at every opportunity that petitioners membership in the Black
Panthers justified bail so high that petitioners could be "rehabili-

6/
tated in prison" prior to trial.

Nor could the state have sustained —  if it had ever made —  a 
contention that the bail set was the usual amount. It is significant 
that when charged with the same offense —  feloniously assaulting 
a police officer —  only bail of $1,000.00 was required in the non­
political case of Gonzalez v. Warden, 21 N.Y. 2d 18, cert, denied

The district attorney reflected the hostility to petitioners and 
the Black Panther organization in other portions of the community 
When the preliminary hearing in petitioners' case was held cn 
September 4th, 1968, at the Brooklyn Criminal Court "About 150 
white men, many of whom were off-duty policemen, attacked a 
small number of Black Panther party members and white sympa­
thizers" N.Y. Times, September 5, 1968, page 1. While thii 
incident has been the subject of official investigation, no 
charges against the assailants have been lodged.

9



390 U.S. 973 (1968), where the police officer was hospitalized 
for three months. Prior to petitioners1 arraignment, a defendant
charged with armed robbery was released on bail of $500.00 (D-3; K-5). 
Petitioner Baines has another charge pending of felonious assault 
in Kings County for which he had been paroled on his own recognizance 
pending trial and neither petitioner had ever failed to appear in 
court as required (D-9,10;K-8,20). The fact that the bail set 
reflected district attorney's plainly articulated desire to retain 
petitioners' in custody is confirmed by an authoritative study of 
the New York bail system which concluded that 63% of those charged 
with crime could not make bail in the amount of only $2500.00,
Bail In The United States, 1964, 12 (Nat'l. Conf. on Bail and Crimina. 
Justice, Washington, D.C.). Thus, if the amounts finally required 
of petitioners (not to mention the $50,000.00 initially required) 
were the usual amounts set for felonious assault in New York almost 
no one charged could obtain pre-trial liberty.

While the state never sought to justify the amount of bail on 
the ground that it was the usual amount for felonious assault cases, 
the primary factor which was asserted to justify a higher bail 
in petitioner’s case —  the character of their political associations 
-- has been condemned by this court as violative of the Eighth 

^Amendment, Stack v. Boyle. supra. The district attorney’s call
for incarceration of petitioners because of Black Panther membership 
was not a casual remark. In court after court he made his purpose 
plain:

"The defendants__are members of the Black
Panther movement. Because of this, the 
district attorney is requesting a high bail 
since it is believed that the defendants 
would flee the jurisdiction" (D-19)

*****
"I have studied the Black Panther movement 
and it is my opinion that there is an ebb 
and flow of Black Panthers across the country 
from East Coast to West Coast." (D-20)

*****
"[T]hese three young men are being used as 
tools by people who are interested in these 
political movements tending to border on 
anarchy..." (D-22) *****

10



"I think they can be rehabilitated in the 
prison system rather than exposed again 
to the streets and used again by these 
people in their fight against law and 
order." (D-23) *****
"I think a neriod of incarceration for them 
will be therapeutic rather than let them out 
on the street again." (K-30)

It does not require any reading between the lines to ascer­
tain that bail is here being used for a wholly unconstitutional 
purpose. In Stack v. Boyle, supra the United States sought to justify 
unusually high bail for twelve members of the Communist Party by 
asking this Court, as the state asked the courts below, to assume 
"without the introduction of evidence, that each petitioner is a 
pawn in a conspiracy and will, in obedience to a superior flee the 
jurisdiction (Id at 5, 6). Although at the time Stack has decided 
this Court had determined that the Communist Party was dominated 
by a foreign power, Dennis v. United States, 341 U.S. 494 (1951) 
it flatly rejected the notion that vaguely alleged and undocumented 
characteristics of political association support pre-trial incarce­
ration:

To infer from the fact of indictment alone a need 
for bail in an unusually high amount is an arbi­
trary act. Such conduct would inject into our 
own system of government the very principles of 
totalitarianism which Congress was seeking to 
guard against in passing the statute under which 
petitioners have been indicted.
If bail in an amount greater than that usually 
fixed for serious charges of crimes is required 
in the case of any of the petitioners, that is 
a matter to which evidence should be directed 
in a hearing so that the constitutional rights 
of each petitioner may be preserved. In the 
absence of such a showing, we are of the opinion 
that the fixing of bail before trial in these 
cases cannot be squared with the statutory and 
constitutional standards for admission to bail. 
(342 U.S. at 6).

11



As much as those who allegedly threatened to overthrow* the govern­
ment of the United States by force and violence, petitioners, charged 
with throwing objects and resisting arrest and presumed innocent, 
are entitled to be treated as individuals when conditions of pre­
trial liberty are determined.

In Stack, the Court also found that the amount of bail required 
by the Eighth Amendment is such as to insure the presence of the 
defendant and that "[b]ail set at a figure higher than 6n amount 
reasonably calculated to fulfill this purpose is ’excessive' under 
the Eighth Amendment.” Thus, where as here, the amount of bail is 
used as an instrument of punishment, or reflects factors which do 
not relate to increasing the likelihood of an accused's appearance, 
bail is "excessive” for the purposes of the Eighth Amendment, see 
Williamson v. United States, 184 F.2d 2C0 (2d Cir. 1950)(Mr. J. 
Jackson). The principle is illustrated by Bitter v. United States, 
389 U.S. 15, 17 (1967) where revocation of bail "had the appearance 
and effect of punishment rather than of an order designed solely 
to facilitate trial. Punishment may not be so inflicted.” See 
also Cohen v. United States, 7 L.ed 2d 518 (1962) (Mr. J. Douglas).

While the state relied on the political affiliations of peti­
tioners to urge a higher than usual bail - and the state's bail 
recommendation is always accorded great weight - the courts to which 
petitioners presented their motions for reduction of bail never 
expressed the view that such palpably illegitimate factors should 
be excluded, and excluded totally, from their consideration of the 
bail amount. To be sure, bail was eventually reduced from $50,000.09 
to $20,000.00 (Correa) and $10,000.00 (Baines) by two judges of 
the New York Supreme Court, but it was still retained at an unusualL> 
high level, reflecting at. the very least the unconstituionally 
excessive figure of $50,000.00 initially set by the criminal Court.

12



The New York appellate courts subsequently declined to reduce 
the bail further and neither court construad the bail figures 
set as ones which would be non-excessive even if petitioners 
political associations were excluded from consideration. Indeed, 
nothing demonstrates the desireability of this court granting 
certiorari as much as the failure of the New York Courts to[articulate the constitutional standards they applied and the unreasoned treatment accorded grave constitutional claims. It 
is no accident that bail administration is characterized as 
essentially lawless by many of those who have carefully observed 
our system at work.

In addition, the New York Court of Appeals refused to make an 
independent consideration of the legitimacy of the bail required 
by holding it was:

"not required to approve the amounts fixed 
as bail...as if it were determining the 
amount of bail in the first instance. It suffices that it concludes that the amounts 
thus fixed are not excessive as a matter of 
law, and therefore, not in violation of con­
stitutional limitations."

But if the Court need not consider whether the amount, or the 
factors which influenced the amount, passed constitutional 
muster "In the first instance", the "present procedures for 
obtaining relief from an original determination of allegedly 
excessive bail are grossly inadequate" Foote, "The Coming Consti­
tutional crisis in Bail," 113 U. of Pa. L. Rev. 1125, 1131 (1965). 
Coupled with the failure of the lower courts to make findings 
supporting their bail decisions - a practice no less prejudicial 
for being conventional - such a standard of review effectively 
immunizes all but the most outrageous bail amount from constitu­
tional attack and provides no effective review of whether unconsti 
tutional factors influenced the bail decision. (Ibid.) What this 
Court said in Garner v. Louisiana, 368 U.S. 157, 173 (1961) is 
pertinent: aprocedure which prevents:

13



II. . .  an appellate court [from reviewing] 
the facts and lav/ of a case <u.d •intelli­
gently decid[ing] v/hether the findings of 
the lov/er court are supported by evidence 
. . . would be a denial of due process."

The failure of state courts to exclude consideration of 
unconstitutional bail factors —  in the face of (1) the high bail 
set (2) the district attorney's blatant call for use of bail to 
imprison petitioners because (3) they were political undesireables 
—  makes it urgent for this Court to insure that constitutional 
standards were applied.

B. The Fourteenth Amendment makes the Eighth Amendment’s 
Proscription Against Excessive Bail Applicable to the 
States.
The question of the application to the states of the Eighth

Amendment's proscription against excessive bail is plainly ripe 
7/for review. In recent years, this Court has frequently granted 

review in cases seeking to apply the specific guarantees of the 
Bill of Rights to state criminal proceedings. See Klopfer v. North 
Carolina. 386 U.S. 213 (1967) (speedy trial); Pointer v. Texas,
380 U.S. 400 (1965) (confrontation); Washington v. Texas, 388 U.S. 
14 (1967) (compulsory process); Gideon v. Wainwright, 372 U.S. 335 
(1963) (right to counsel); Ker v. California, 374 U.S. 230 (1963) 
(standard 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) (exclusion of illegally 
seized evidence); Malloy v. Hogan, 378 U.S. 1 (1964) (protection 
against self-incrimination) ; Robinson v. Co l  ifn;.nia, 370 U.S. 660 
(1962) (Eighth Amendment protection again.it cruel and unusual 
punishment); Duncan v. Louisiana, 391 U.S. 145, (1968) (Sixth 
Amendment's jury trial guarantee).

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

14



The excessive bail clause of the Eighth Amendment is the 
most significant guarantee of the Bill of Rights remaining to be 
considered. Petitioners contend that the right against pre-trial 
detention upon which the Eighth Amendment rests is a critical aspect 
of the "liberty' protected by the Due Process clausa of the Four­
teenth Amendment against deprivation by the states, fcs this Court 
has not heretofore considered whether the excessive bail clause of 
the Eighth Amendment is absorbed in the Fourteenth and, if so, the 
character and extent of its application, this petition plainly
presents a question appropriate for exercise of the certiorari

1/jurisdiction.
Certiorari is particularly appropriate in the present case 

because issues concerning constitutionality of the money bail 
system are ordinarily mooted by the supervention of trial before 
they can be brought to this Court. While administration of bail 
without needless punishment of those who have been only charged 
with crime is central to fairness in criminal law administration, 
this Court's opportunities to determine constitutional rules 
governing pre-trial detention are rare, and the issues involved are 
now decided without authoritative constitutional guidance every 
day of every year in lower courts the length and breadth of the 
nation.

8/ Stack v. Bovle. 342 U.S. 1 (1951) is this Courtis only opinion 
on what constitutes excessive bail. It was decided both before 
the landmark decisions under the equal protection clause of 
Griffin v. Illinois, 351 U.S. 12 (1956) and Douglas v. California 
372 U.S. 353 (1963), and before the extensive criticism of the bail system of recent years. See, Proceedings of the Conference 
on Bail and Indigency, 1965 U. 111. L. Forum, #1; National Conference on Bail and Criminal Justice, Proceedings and Interim 
Report (1965); Conference Proceedings, National Conference on 
Law and Poverty (1965). See also Allen, Poverty and the 
Administration of Federal Criminal Justice (1963).

15



A pronouncement by the Court that the Fourteenth Amendment
applies the excessive bail prohibition of the Eighth to the states
—  to prevent the use of bail as punishment prior to trial as in
this case —  is particularly timely now that the Eighth Amendment's
other major guarantee forbidding cruel and unusual punishments,
Robinson v. California, 370 U.S. 660 (1962) has been incorporated.
To incorporate that clause but ignore its companion —  and thus to
restrain the states' power to punish the guilty but not their
power to punish the presumptively innocent —  would be not merely
irony but retardation of more than half a millennium of Anglo-
American growth in the traditions of freedom. For, if one thing
is clear in the history of the slow and painful evolution of the
modern concept of personal liberty, it is the vital and continuing
part played in that history by the struggle to assure the right of

9/pre-trial release. 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, however, 
one could not suppose without historical and practical heedlessness 
that the Fourteenth Amendment's prohibition against the depriva­
tion of liberty without due process of law imposed no restraint 
upon a state's power to imprison an individual on criminal charges

9/ Well before the Bill of Rights (1688), 1 W. & M. sess. 2, 
ch. 2, reciting that "excessive Baile hath beene required 
of Persons committed to criminall Cases to elude the Benefit 
of the Lawes Made for the Liberty of the Subjects," and "That 
excessive B'<ile 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. 152) . Indeed, protection of the bail right was the imme­
diate purpose of the celebrated Habeas Corpus Act of 1679 whose 
descendant is the Habeas Corpus Suspension Clause of the federal 
and virtually all state constitutions.

16



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 be said to suffer a system
in which the modern American citizen might languish for long periods
in jail without trial. Pervasive state constitutional recognition
of the bail right supports the finding that the Eighth Amendment s
bail Clause is absorbed by the requirement of the Fourteenth that
a state's criminal procedure conform to at least generally accepted

12/minimum standards of fairness.

Conclusion
WHEREFORE, petitioners pray that a writ of certiorari be

granted and the judgment below be reversed.
Respectfully submitted.

GERALD LEFCOURT
18 East 64th Street 
New York, New York

WILLIAM M. KUNTSLER 
511 Fifth Avenue New York, New York

Attorneys for Petitioners
MICHAEL MELTSNER 
MELVYN ZARR10 Columbus CircleNew York, New York 10019

Of Counsel

10/ Bail: An Ancient Practice Re-examined, 70 Yale Law Journal. 
966-977, Appendix (1961).

17



D e c is io n s

CASE
September

2 .The Peop 
Baines &

George F 
Of Co rre

Stale of X e w  Y o r k

C o u r t  of a p p e a l s
-4 f.r, • ..........

25, 1968

Order affirmed in the following 
memorandum:

The Court, in the exercise of its 
power of review, is not required to 
approve the amounts fixed as bail for 
each of the relators, as if it were 
determining the am-ount of bail in the 
first instance. lit suffices that it 
concludes that the amounts thus fixed 
are not excessive as a matter of law, 
and therefore not in violation of 
constitutional limitations. (People ex 
rel. Lobell v. McDonnell, 296 N.Y. 109; 
People ex rel. Rao vT Acfams, 296 N.Y. 
231; People ex ref. Gonzalez v. Warden, 

t-VC'. 4- . . 21 N.Y. 2d 18, 25,')
All concur.

i

No. 460.
Le &c., ex rel. Darryl 
o r s . , A p p”e Hants,

V 3 .
. M c G r a t h ,  C o m m i s s i o n e r  
c t i o n , R e s p o n d e n t .

. ...



Y_/ '■ E -i
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 September 5 , 1 9 6 3 .

HON. GEORGE J. BELDOCK, Presiding Jiutice 
HON. MARCUS G. CHRIST 
HON. ARTHUR D. BRENNAN 
HON. SXHOEECKABEN 
HON. XaMESXDXSIOEKIXS 
HON. )pQ m ^\SEN K X X CIX  
HON. FRED J. MUNDER 
HON. M. HENRY MARTUSCELLO

Associate Justices • • • .• <■ -

-X
THE PEOPLE OF THE STATE OF NEW YORK" 
ex rel. DARRYL BAINES, JOHN MARTINEZ 
and GEORGE CORREA,

Relators,•. v.
GEORGE F. McGRATH, Commissioner of 
Correction,

Respondent.

Order

f The relators, DARRYL BAINES, JOHN MARTINEZ and GEORGE 
CORREAp 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, Kings County, which fixed balls as follows: 
for Baines, $50,000; for Martinez, $5500; and for Correa, $50,500, 
charging them with violations of Sections 120.05, 205.30, 165.A0, 
120.20 and 195.05 of the Penal Lav?; that thereafter and on 
September 3, 1968, a Justice of the Supreme Court, Kings County, 
reduced said bails as follows: for Correa, $20,000; for Baines, 
$10,000 and for Martinez; $2500.; the relators having made a 
habeas corpus application to this court to have their bail reduced 
further; a writ of habeas corpus having been duly issued by a 
Justice of this court on September 3, 1958, and the relators, 
pursuant to such writ, having been produced before this court on 
September 5, 1968;

NOW, on reading and filing the said writ and the petition 
of William M. Kunstlex*, Esq., relators* attorney, verified September 
3, 1968, in support of the application; and the application having 
been argued by said William M. Kunstler, Esq., attorney for relators, 
and by John J. Meglio, Esq., Assistant District Attorney, of counsel 
for respondent; and due deliberation having been had thereon; and 
upon the decision slip of this court, heretofore filed and made a 
part hereof; it is:

ORDERED that the said application is hereby denied, and 
the writ dismissed; and it is further

ORDERED that the said relators are hereby remanded to the 
custody of George F. McGrath, Commissioner of Correction, in the 
Brooklyn House of Detention.

Enter:
HERMAN M’. PCGUE
Clerk of Appellate Division



V.■/4i. "1
A t a Term of the Appeilate Division of the Supreme Court 

of the State of New York, Second Judicial Department 
held in Kings County on September 5 , 1963.

HON. GEORGE J. BELDOCK, Presiding Justice 
HON. MARCUS G. CHRIST 
HON. ARTHUR D. BRENNAN 
HON. SXXfOEDCRABEN 
HON. 3aafflBSHBX2HOEEIKS 
h o n .
HON. FRED J. MUNDER 
HON. M. HENRY MARTUSCELLO

Associate Justices

■X

THE PEOPLE OF THE STATE OF NEW YORK*' 
ex rel. DARRYL BAINES, JOHN MARTINEZ 
and GEORGE CORREA,

Relators,
■. v«

GEORGE F. McGRATH, Commissioner of 
Correction, ~

I Respondent.

"T.7 - . *:*

Order

-x
The relators, DARRYL BAINES, JOHN MARTINEZ and GEORGE 

CORREA^ 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, Kings County, which fixed bails as follows: 
for Baines, $50,000; for Martinez, $5500; and for Correa, $50,500, 
charging them with violations of Sections 120.05, 205.30, 165.40, 
120.20 and 195.05 of the Penal Law; that thereafter and on 
September 3, 1968, a Justice of the Supreme Court, Kings County, 
reduced said bails as follows: for Correa, $20,000; for Baines, 
$10,000 and for Martinez, $2500.; the relators having made a 
habeas corpus application to this court to have their bail reduced 
further; a writ of habeas corpus having been duly issued by a 
Justice of this court on September 3, 1958, and the relators, 
pursuant to such writ, having bean produced before this court on 
September 5, 1968;

K0W, on reading and filing the said writ and the petition 
of William M. Kunstler, Esq., relators* attorney, verified September 
3, 1968, in support of the application; and the application having 
been argued by said William M. Kunstler, Esq., attorney for relators 
and by John J. Meglio, Esq., Assistant District Attorney, of counsel 
for respondent; and due deliberation having been had thereon; and 
upon the decision slip of this court, heretofore filed and made a 
part hereof; it is:

■' ORDERED that the said application is hereby denied, and 
the writ dismissed; and it is further

ORDERED that the said relators are hereby remanded to the 
custody of George F. McGrath, Commissioner of Correction, in the 
Brooklyn House of Detention.

Enter:
HERMAN M". POGUU
Clerk of Appellate Division