Singleton v Jackson Municipal School District Memorandum of Appellants

    I n the

§»tt|tr£M£ (Emtrt nf %  Initpft &>Mm
October T erm, 1972

No. 71-1428

K irby J .  H ensley,

—vs.—
Petitioner,

Municipal Court, San J ose-Milpitas J udicial D istrict, 
Santa Clara County, State of California,

Respondent.

on writ of certiorari to the united states 
court of appeals for the ninth  circuit

BRIEF FOR PETITIONER

J ack Greenberg 
Stanley A. Bass

10 Columbus Circle
Room 2030
New York, N.Y. 10019

P eter R. Stromer

1035 No. Fourth Street 
San Jose, California 95112

Attorneys for Petitioner



I N D E X

PAGE

Opinions Below......... ..................... .... ............—-..........  1

Jurisdiction ............................... .................... ..........-.....  2

Question Presented for Review ..................... .............. 2

Constitutional and Statutory Provisions Involved......  2

Statement ............ .......... ................................................. 5

Argument—

State Prisoners Released On Bail Or Recognizance 
Pending Appeal Are “In Custody” for Purposes of 
the Federal Habeas Corpus Statute.
A. The Restraints Imposed Upon a Person Sen­

tenced To Imprisonment, Who Is Released On 
Bail Or Recognizance Pending Appeal, Fits the 
Term “In Custody” in the Federal Habeas Cor­
pus Statute ................. .....................................  6

B. The Purposes of the Federal Habeas Corpus 
Statute Would Be Frustrated by a Requirment 
That a Criminal Defendant Who Is Released 
On Bail Or Recognizance Pending Appeal, Must
First Surrender to Imprisonment ...................  9

Conclusion ...................... .......................................................  12

Table of Cases

Allen v. United States, 349 F.2d 362 (1st Cir. 1965).... 9
Argersinger v. Hamlin, 407 U.S. 25 (1972).......... ....... 11



11

Baker v. Grice, 169 U.S. 284 (1898)-._____________  8
Beck v. Winters, 407 F.2d 125 (8th Cir. 1969)........ 9
Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal.

1972) .................. ....... ......................... ........... ...........  11
Burris v. Ryan, 397 F.2d 553 (7th Cir. 1968).............. 9

Capler v. City of Greenville, 422 F.2d 299 (5th Cir.
1970) ................................ ........................................ 8

Carafas v. LaVallee, 391 U.S. 234 (1968)..................... 7
Carlson v. Landon, 342 U.S. 524 (1952)....... ...............  6
Choung v. People of the State of California, 320 F. 

Supp. 625 (E.D. Cal. 1970), rev’d, 456 F.2d 176 (9th 
Cir. 1972), pet. for cert, filed, 71-1562, 40 U.S.L. Week 
3577, 41 U.S. L. Week 3028 (May 30, 1972).......... . 7

Duncombe v. New York, 267 F. Snpp. 103 (S.D. N.Y. 
1967) ................... ..... ..... .......... ................................- 9

Hamilton v. Love, 328 F. Snpp. 1182 (E.D. Ark. 1971) 11
Harris v. Nelson, 394 U.S. 286 (1969).......... .............. . 7

In Re Shnttlesworth, 369 U.S. 35 (1962)  .......... . 10
In Re Smiley, 66 Cal. 2d 606, 58 Cal. Rptr. 579, 427 

P.2,1 179 (1967) ......................................... ......:........ 9

Johnson v. Hoy, 227 U.S. 245 (1913)............................  8
Jones v. Cunningham, 371 U.S. 236 (1963)........ ......... 7
Jones v. Wittenberg, 323 F. Supp. 93 (N.D. Ohio 1971), 

aff’d sub nom. Jones v. Metzger, 456 F. 2d 854 (6th
Cir. 1972) .............. ................ ....................................  11

Marden v. Purdy, 409 F. 2d 784 (5th Cir. 1969)..........  8
Matysek v. United States, 339 F. 2d 389 (9th Cir. 1964) 5
Matzner v. Davenport, 288 F. Supp. 636 (D. N.J. 1968), 

aff’d, 410 F. 2d 1376 (3rd Cir. 1969)

PAGE

9



PAGE

McNally v. Hill, 293 U.S. 131 (1934)........ ...................  8
Moss v. State of Maryland, 272 F. Supp. 371 (I). Md. 

1967) ...........................................................................  9

Onletta v. Sarver, 307 F. Snpp. 1099 (E.D. Ark. 1970), 
aff’d, 428 F. 2d 804 (8th Cir. 1970)........ ..................- 9

Papaehriston v. City of Jacksonville, 405 U.S. 156
(1972) .....- ..................................................................  10

Peyton v. Rowe, 391 U.S. 54 (1968) ....... ............ —7,10,11

Shnttlesworth v. Birmingham, 394 U.S. 147 (1969)—  10
Stallings v. Splain, 253 U.S. 339 (1920)----------------- 8
Strait v. Laird, 406 U.S. 341 (1972)....................... — 8

Tate v. Short, 401 U.S. 395 (1971)...................... .........  H

United States ex rel. G-ranello v. Krueger, 306 F. Supp.
1046 (S.D. N.Y. 1969) ...... .......................................  9

United States ex rel. Meyer v. Weil, 458 F. 2d 1068 
(7th Cir. 1972), pet. for cert, filed, 72-5175 (Aug. 2,
1972) ........ ..... ................................................-----...... 9

United States ex rel. Smith v. DiBella, 314 F. Supp.
446 (D. Conn. 1970) ..................................................  9

Wales v. Whitney, 115 U.S. 564 (1885)—...................... 8
Walker v. Wainwright, 390 U.S. 335 (1968)...............-  7
Wayne County Jail Inmates v. Wayne County Board 

of Commissioners, No. 173-217 (Cir. Ct. Wayne Cty. 
Mich. May 18, 1971) (3-judge court) (reprinted at p.
119 of Hearings Before Subcommittee No. 3, Com­
mittee on the Judiciary, House of Representatives, 
92nd Congress, 2d Session, On Corrections, Part 
VIII (March 31, 1972) ...................................- ...... . 11



IV

Williams v. Illinois, 399 U.S. 235 (1970) .....................  11

Younger v. Harris, 401 U.S. 37 (1971) .... .................... 10

Constitutional P rovisions and Statutes

First Amendment, United States Constitution______  10
Fourteenth Amendment, United States Constitution ..2, 9,10

18 U.S.C. §3146 .................................... ............ . 6
28 U.S.C. §1254(1) ........ ................... .................... 2

§2241(o) (3) ____ __________ _______ 2,5
§2254(a) ............ ...................... ........... 3

California Penal Code (West, 1968)
§1318.4 ........................ ............. ..............  3, 6
§1318.6 ------------------------------------ - 3, 6
§1318.8 ................................. ............. .....  4, 6
§1319.6 ............ ................. ....................3, 4, 6

Text

Mattick & Aikman, The Cloacal Region of American 
Corrections, 381 Annals of Amer. Acad. Pol. & Soc.
Sci. 109 (1969) ................ ................. ..................... . H

McGee, The Administration of Justice: The Correc­
tional Process, 5 NPPAJ 225 (1959) ......... ..... .......... 11

1970 National Jail Census (L.E.A.A.) _____ ________ 11

PAGE



I k the

Bnpvmv (Emtrt nf %  In iM  f&atos
October T erm, 1972 

No. 71-1428

K irby J . H ensley, 

-vs;-—
Petitioner,

Municipal Court, San J ose-Milpitas J udicial D istrict, 
Santa Clara County, State of California,

Respondent.

on writ of certiorari to the united states 
court of appeals for the ninth  circuit

BRIEF FOR PETITIONER

Opinions Below

The decision of the United States District Court for the 
Northern District of California denying petition for writ 
of habeas corpus is unreported, and is set out at App. 29a. 
The District Court’s order denying reconsideration, hut 
granting a certificate of probable cause is unreported and 
is set forth at App. 30a.

The decision of the United States Court of Appeals for 
the Ninth Circuit is officially reported at 453 F. 2d 1252, 
and is set out at App. 32a-34a. The order of the Court of 
Appeals denying petition for rehearing and rejecting sug­
gestion for rehearing in banc is set forth at App. 35a.



2

Jurisdiction

The judgment of affirmance of the Court of Appeals was 
entered on January 19, 1972. A timely filed petition for 
rehearing in banc was denied on February 18, 1972. The 
petition for writ of certiorari was filed on May 2,1972, and 
was granted on October 10, 1972. The jurisdiction of this 
Court is invoked under 28 U.S.C. §1254(1). The District 
Court had jurisdiction under 28 U.S.C. 12241(c) (3).

Question Presented for Review

Whether or not a person released on his own recogni­
zance following trial, conviction and sentence on a state 
criminal charge is within the purview of 28 U.S.C. 
§2241(c)(3), which extends the remedy of habeas corpus 
to persons “in custody” in violation of the Constitution of 
the United States.

Constitutional and Statutory Provisions Involved

The Fourteenth Amendment provides, in pertinent p a rt:
“ . . . nor shall any state deprive any person of life, 
liberty, or property, without due process of law, . . . ”

28 U.S.C. §2241:
“Power to grant w rit:

# # #

(c) The writ of habeas corpus shall not extend to a 
prisoner unless—
(3) He is in custody in violation of the Constitution 
. . .  of the United States



3

28 U.S.C. §2254:
“State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit 
judge, or a district court shall entertain an applica­
tion for a writ of habeas corpus in behalf of a person 
in custody pursuant to the judgment of a State court 
only on the ground that he is in custody in violation 
of the Constitution . . . of the United States.”

California Penal Code §§1318-1319.6 (West, 1968), pro­
vide as follows:

§1318.4
To be released on his own recognizance the defendant 

shall file with the clerk of the court in which the magistrate 
or judge is presiding an agreement in writing duly executed 
by him, in which he agrees that:

(a) He will appear at all times and places as ordered 
by the court or magistrate releasing him and as 
ordered by any court in which, or any magistrate 
before whom, the charge is subsequently pending.

(b) If he fails to appear and is apprehended outside 
of the State of California, he waives extradition.

(c) Any court or magistrate of competent jurisdiction 
may revoke the order of release and either return 
him to custody or require that he give bail or other 
assurance of his appearance as elsewhere pro­
vided in this chapter.

§1318.6
After a defendant has been released pursuant to this 

article, the court in which the charge is pending may, in



4

its discretion, require that the defendant either give bail 
in an amount specified by it or other security as elsewhere 
provided in this chapter. The court may order that the 
defendant be committed to actual custody unless he gives 
such bail or gives such other security.

§1318.8
The court to which the committing magistrate returns 

the depositions, or in which an indictment, information or 
appeal is pending, or to which a judgment on appeal is re­
mitted to be carried into effect, may, by an order entered 
upon its minutes, direct the arrest of any defendant who 
has been released upon his own recognizance and his com­
mitment to the officer to whose custody he was committed at 
the time of such release, and his detention until legally 
discharged, in the following cases:

(a) When he has failed to appear as agreed.
(b) When he was required to give bail or other secu­

rity as provided in Section 1318.6 and has failed 
to do so.

(c) Upon an indictment being found or information 
filed in cases provided in Section 985.

§1319.6

Every person who is charged with the commission of a 
misdemeanor who is released on his own recognizance pur­
suant to this article who wilfully fails to appear as he has 
agreed, is guilty of a misdemeanor.



5

Statement

Petitioner, Kirby J. Hensley, eonvicted of a misde­
meanor in the state court,1 and presently enlarged on his 
own recognizance,2 * * * * * filed a petition for writ of habeas corpus 
in the United States District Court for the Northern Dis­
trict of California, challenging the constitutionality of the 
state conviction.8

The District Court did not reach any substantive issues, 
but denied the petition on the ground that petitioner, being 
enlarged on his own recognizance, was not “in custody” for 
purposes of 28 U.S.C. §2241(c)(3).

The Court of Appeals affirmed, relying upon its previous 
dictum, in Matysek v. United States, 339 F.2d 389 (9th Cir. 
1964), to the effect that a person released on bail was not

1 Hensley was sentenced to one year in jail pins $625 fine and 
penalty assessment for violation of California Education Code 
§29007, which prohibits the award of Doctor of Divinity degrees 
without requisite accreditation.

2 Hensley has been enlarged on recognizance at all times since 
his conviction. Initially, the state court stayed execution of sen­
tence. At the exhaustion of Hensley’s state remedies, the district 
court issued a stay of execution pending habeas proceedings there­
in. After the petition was denied, the Circuit Justice granted a 
stay pending appeal to the Court of Appeals. Following the affirm­
ance of the denial of habeas corpus, the Court of Appeals granted
a 30-day stay of its mandate pending application for certiorari.
This stay was subsequently extended by the Circuit Justice pend­
ing the Court’s action on a timely filed petition for a writ of 
certiorari, to remain in effect pending the judgment of this Court.

8 The grounds for this Constitutional challenge are, briefly, as 
follows: 1) denial of free exercise of religion, by the imposition of 
punishment for essentially religious activity in awarding honorary 
Doctor of Divinity certificates to individuals who complete a course 
of religious instruction, and 2) denial of due process of law and 
effective assistance of counsel, by the failure of trial counsel to 
appear and present any defense of fact or law that was available 
to petitioner when the trial court re-opened the case after having 
initially stayed the proceedings to determine if it had jurisdiction, 
and by the imposition of judgment of conviction in absentia.



6

“in custody”, actual or constructive, so as to satisfy 28 
U.S.C. §2241. The Court of Appeals specifically noted, how­
ever, that “the decisional rule is different in several other 
circuits” and that “the Supreme Court has not, to this 
date, considered the express question posed herein.”

On October 10, 1972, this Court granted Hensley’s peti­
tion for writ of certiorari.

ARGUMENT
State Prisoners Released On Bail Or Recognizance 

Pending Appeal Are “ In Custody” for Purposes of the 
Federal Habeas Corpus Statute.

A. T he R estraints Im posed U pon a P erson Sentenced To Im ­
prisonm ent, W ho Is R eleased On Bail Or R ecognizance  
P ending Appeal, Fits the Term  “ In Custody” in  the Fed­
eral Habeas Corpus Statute.

In California, as in most States, a person sentenced to 
imprisonment, who is released on hail or recognizance pend­
ing appeal, is subject to a number of restraints, which 
significantly differentiate his status from that of a free 
person. The defendant is obligated to appear in court at 
all times required, and in default thereof, waives extradi­
tion. The order of release may be revoked at any time, and 
the defendant can be rearrested. Failure to appear con­
stitutes a separate offense.4 In some jurisdictions, terri­
torial and supervisory restrictions are also imposed. Cf. 18 
U.S.C. §3146. “When a prisoner is out on bond he is still 
under court control, though the bounds of his confinement 
are enlarged. His bondsmen are his jailers.” Carlson v. 
Landon, 342 U.S. 524, 547 (1952).

In addition, “the fact that petitioner was forced to seek 
a federal stay order to fend off state incarceration is itself

4 Cal. Pen. Code §§1318.4, 1318.6, 1318.8, 1319.6, infra, at 3-4.



7

a significant restraint ‘not shared by the public generally’.” 
Choung v. People of State of California, 320 F. Supp. 625, 
628 (E.D. Cal. 1970), rev’d, 456 F.2d 176 (9th Cir. 1972), 
pet. for cert, filed, 71-1562, 40 U.S. L. Week 3577, 41 U.S. 
L. Week 3028 (May 30, 1972).

This court has definitively set to rest the notion of federal 
habeas corpus as “a static, narrow formalistic remedy; its 
scope has grown to achieve its grand purpose—the protec­
tion of individuals against erosion of their right to be free 
from wrongful restraints upon their liberty.” Jones v. 
Cunningham, 371 U.S. 236, 243 (1963) (person on parole is 
“in custody” for federal habeas corpus purposes).

Subsequent Supreme Court decisions have given an ap­
propriate interpretation to the scope of the “Great Writ.” 6

Of particular relevance hereto, Peyton v. Rowe, 391 U.S. 
54 (1968), applied the federal habeas corpus remedy to

6 Walker v. Wainwright, 390 U.S. 335 (1968), permitted a pris­
oner to attack a sentence which he was currently serving even 
though another valid sentence awaited him.

Carafas v. LaVallee, 391 U.S. 234 (1968), held that expiration 
of a petitioner’s sentence, before his habeas corpus application was 
finally adjudicated, did not terminate federal jurisdiction:

“the statute does not limit the relief that may be granted to 
discharge of the applicant from physical custody. Its mandate 
is broad with respect to the relief that may be granted. It 
provides that [t]he court shall . . . dispose of the matter as 
law and justice require.’ 28 U.S.C. §2243. The 1966 amend­
ments to the habeas corpus statute seem specifically to contem­
plate the possibility of relief other than immediate release from 
physical custody. At one point, the new §2244(b) (1964 ed., 
Supp. II) speaks in terms of ‘release from custody or other 
remedy’.”

Harris v. Nelson, 394 U.S. 286, 291 (1969) emphasized:
“The scope and flexibility of the writ—its capacity to reach all 
manner of illegal detention—its ability to cut through bar­
riers of form and procedural mazes—have always been em­
phasized and jealously guarded by courts and lawmakers. The 
very nature of the writ demands that it be administered with 
the initiative and flexibility essential to insure that miscar­
riages of justice within its reach are surfaced and corrected.”



8

questions of future release, overruling McNally v. Hill, 293 
U.S. 131 (1934):

“to the extent that the rule of McNally postpones ple­
nary consideration of issues by the district courts, it 
undermines the character of the writ of habeas corpus 
as the instrument for resolving fact issues not ade­
quately developed in the original proceedings.” 391 
U.S., at 73

“Rowe and Thacker may establish that the convictions 
they challenge were obtained in violation of the Con­
stitution. If they do, each day they are incarcerated 
under those convictions while their cases are in the 
courts will be time that they might properly have 
enjoyed as free men.” Ibid., at 64.

Most recently, Strait v. Laird, 406 U.S. 341 (1972), up­
held the right of an unattached, inactive, Army reserve 
officer to bring a habeas corpus proceeding—seeking dis­
charge as a conscientious objector—at the place of his 
domicile, even though he was under nominal command of 
the Reserve located in Indiana. Mr. Justice Rehnquist, in 
dissent, suggested, in part, that custody, for habeas pur­
poses, “does not exist for an unattached reservist who is 
under virtually no restraints upon where he may live, work, 
or study, and whose only connection with the Army is a 
future obligation to enter active duty.” 406 U.S., at 350. 
But, of course, petitioner Hensley hardly is that free, and 
the decision in Strait applies a fortiori.

These relatively recent cases6 vindicate the conclusion, 
reached by several lower federal courts,7 as well as by the

6 The older decisions in Stallings v. Svlain, 253 U.S. 339 (1920) ; 
Johnson v. Hoy, 227 U.S. 245 (1913) ; Baker v. Grice, 169 U.S. 284 
(1898) ; and Wales v. Whitney, 114 U.S. 564 (1885), obviously 
are no longer vital.

7 See Marden v. Purdy, 409 P. 2d 784, 785 (5th Cir. 1969); 
Capler v. City of Greenville, 422 P. 2d 299, 301 (5th Cir. 1970) ;



9

California Supreme Court,8 that a person on bail or recog­
nizance is “in custody” sufficient; to seek habeas corpus re­
lief. This result is fully consistent with the purposes of 
the federal habeas corpus statute.

B. T he Purposes o f the Federal Habeas Corpus Statute W ould  
B e Frustrated by a R equirem ent That a Crim inal D efen­
dant W ho Is R eleased On B ail Or R ecognizance P ending  
Appeal, Must First Surrender T o Im prisonm ent.

A requirement that a state criminal defendant, who is 
released on bail or recognizance pending appeal, must first 
surrender to imprisonment, before he may file a petition 
for writ of habeas corpus, would operate effectively to 
dilute and undermine Fourteenth Amendment rights.

Beck v. Winters, 407 F. 2d 125, 126-27 (8th Cir. 1969) ; Ouletta 
v. Sarver, 307 F. Supp. 1099, 1101 n. 1 (E.D. Ark. 1970), affd, 
428 F. 2d 804 (8th Cir. 1970) ; Burris v. Byan, 397 F. 2d 553, 555 
(7th Cir. 1968) ; United States ex rel. Smith v. Di Bella, 314 
F. Supp. 446, 448 (D. Conn. 1970) ; Buncombe v. New York, 267 
F. Supp. 103, 109 n. 9 (S.D.N.T. 1967) ; Matzner v. Davenport, 
288 F. Supp. 636, 638 n. 1 (D. N.J. 1968), affd 410 F. 2d 1376 
(3rd Cir. 1969). Contra, Allen v. United States, 349 F. 2d 362 
(1st Cir. 1965) ; United States ex rel. Meyer v. Weil, 458 F. 2d 
1068 (7th Cir. 1972), pet. for cert, filed, 72-5175 (Aug. 2, 1972) ; 
Moss v. State of Maryland, 272 F. Supp. 371 (D. Md. 1967) ; 
United States ex rel. Granello v. Krueger, 306 F. Supp. 1046 
(S.D.N.Y. 1969).

8 In the case of In Be Smiley, 66 Cal. 2d 606, 613, 58 Cal. Rptr. 
579, 583, 427 P. 2d 179, 183 (1967), the California Supreme Court 
stated:

“It cannot be argued that release on recognizance lacks mean­
ingful sanctions. The statute requires the defendant to file an 
agreement in writing promising to appear at all times and 
places ordered and waiving extradition if he fails to do so 
outside California (Pen. Code, §1318.4), and makes wilful 
failure to appear punishable as an independent crime (Pen. 
Code §1319.4, 1319.6). Such an individual is not free to go 
where he will, but is subject to restraints not shared by the 
public generally. (Jones v. Cunningham, 371 U.S. at p. 240, 
83 S. Ct. at p. 376, 9 L. Bd. 2d 285.) He is therefore under 
sufficient constructive custody to permit him to invoke the 
writ.”



10

Where, as here, substantial constitutional questions aris­
ing under the First and Fourteenth Amendments are pre­
sented, each day the person is incarcerated constitutes an 
irreparable injury. For that reason, this Court, in Peyton 
v. Roive, 391 TJ.S. 54 (1968), recognized the propriety of 
permitting habeas corpus to be brought in anticipation of 
service of the challenged conviction.

“Common sense dictates that prisoners seeking habeas 
corpus relief after exhausting state remedies should be 
able to do so at the earliest practicable time.” Ibid. 391 
TJ.S. at 64

While it may be theoretically possible for a defendant 
to surrender to imprisonment and then quickly file a peti­
tion for writ of habeas corpus and an application for a stay 
or bail pending hearing therein, In Re Shuttlesworth, 369 
TJ.S. 35 (1962), such matters entail discretion and delay, 
and create an avoidable emergency imposition upon a Dis­
trict Judge’s time. A lower court asked to act in haste, may 
understandably decline to grant a stay initially, at least 
until the substantiality of the constitutional questions pre­
sented is clearly demonstrated. By that time, however, the 
sentence may already be served if it is short.

Under Younger v. Harris, 401 U.S. 37 (1971), a person 
charged with violating an unconstitutional state law9 would 
not be able to obtain an injunction to forestall state court 
prosecution, absent a showing of “bad faith” enforcement. 
After conviction, the defendant might decide, for a variety 
of reasons, not to seek review in the Supreme Court after 
exhausting Ms state court remedies, or if he did file a peti­
tion for writ of certiorari, this court might decline to re­
view. At that point, the defendant could look only toward 
the United States District Court, in habeas corpus, for

9 See, e.g., Shuttlesworth v. Birmingham, 394 U.S. 147 (1969); 
Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).



11

appropriate relief. If he had to surrender to imprisonment 
first, only under the most extraordinary circumstances 
would he be able to be spared the ordeal of being incarcer­
ated for at least some time, in an often decrepit penal in­
stitution.10

This Court’s sensitivity to the significance of penal in­
carceration, e.g., Williams v. Illinois, 399 U.S. 235 (1970); 
Tate v. Short, 401 U.S. 395 (1971); Arc/ersinger v. Hamlin, 
407 U.S. 25 (1972); Peyton v. Rowe, 391 U.S. 54 (1968), 
points up the appropriateness of permitting a defendant 
on bail or recognizance to seek federal habeas corpus relief, 
provided that he has exhausted available state court reme­
dies. Requiring the defendant first to surrender might in­
volve physical and psychological dangers, delay in pro­
tecting constitutional rights, and unnecessary burdens upon 
the District Courts, all without any corresponding benefit 
to the administration of justice.

10 For a description of local jails, see, Jones v. Wittenberg, 323 
F. Supp. 93 (N.D. Ohio 1971), aff’d sub nom. Jones v. Metzger, 
456 F.2d 854 (6th Cir. 1972) ; Hamilton v. Ijove, 328 F. Supp. 
1182 (E.D. Ark. 1971) ; Mattick & Aikman, The Cloacal Region 
of American Corrections, 381 Annals of Amer. Acad. Pol. & Soc. 
109 (1969); 1970 National Jail Census (L.E.A.A.); McGee, The 
Administration of Justice: The Correctional Process, 5 NPPAJ 
225 (1959) (describing the typical county jail as “the lowest form 
of social institution on the American scene.”) Prisoners are fre­
quently subjected, from the instant that they enter the jail, to 
unsanitary conditions, inadequate shelter, lack of proper food, heat, 
light, and recreational opportunities, assaults by fellow prisoners, 
and other degrading and dehumanizing circumstances; thus, incar­
ceration for even the shortest period of time can involve serious 
physical, not to mention psychological, dangers. See, e.g., Wayne 
County Jail Inmates v. Wayne County Board of Commissioners, 
No. 173-217 (Cir. Ct. MTayne Cty. Mich. May 18, 1971) (3-judge 
court) _ (reprinted at p. 119 of Hearings Before Subcommittee No. 3, 
Committee on the Judiciary, House of Representatives, 92nd Con­
gress, 2d Session, Ox Corrections, Part V III (March 31, 1972).) 
Interestingly, a federal court in the very district in which peti­
tioner Hensley would be forced to surrender, has condemned the 
local jail for its barbaric conditions. Brenneman v. Madigan, 343 
F. Supp. 128 (N.D. Cal. 1972).



12

CONCLUSION

The plain meaning of the statutory term “in custody” 
covers the situation of a person released on bail or recog­
nizance, and the purposes of federal habeas corpus, in 
safeguarding federal constitutional rights, are served by 
that interpretation. In the face of this, anachronistic con­
ceptual notions ought not prevail. The judgment of the 
court below should, therefore, be reversed and the case 
remanded for further proceedings.

Respectfully submitted,

November, 1972

J ack Greenberg 
Stanley A. Bass

10 Columbus Circle
Room 2030
New York, N.Y. 10019

P eter R. Stromer

1035 No. Fourth Street 
San Jose, California 95112

Attorneys for Petitioner



MEILEN PRESS IN C  —  N. Y. C. 219